It is constitutional black letter law. To obtain a criminal conviction, the prosecution must prove every element of the offense, by proof beyond a reasonable doubt. The Constitution entitles a defendant to confront and cross-examine all witnesses against him. Yet, for the past thirty years, state legislatures have quietly approved laws that cheat the Constitution. These laws fly, undetected, beneath the constitutional radar, violating fundamental constitutional rights.
Although other constitutional cheats abound, this Article examines one archetypical example of constitutional cheating: statutes that permit state prosecutors to use hearsay state crime laboratory reports, in lieu of live witness testimony, to prove essential elements of a criminal case.' This Article characterizes these statutes as forensic ipse dixit statutes, because the bare assertion of an uncrossexamined state witness becomes, ipse dixit, an adjudicated fact.2 The forensic ipse dixit statutes deprive defendants of the right to confrontation and relieve the government of its burden of proof. These statutes also discourage vigorous defense advocacy, promote carelessness and fraud in crime laboratories, and increase the likelihood of wrongful convictions and sentences.
Part II of this Article provides an overview of the nationwide forensic ipse dixit phenomenon. Part III addresses the unwarranted presumption of reliability that legislatures and courts often accord to forensic reports. Parts IV and V, respectively, discuss how the forensic ipse dixit statutes violate the Confrontation and Due Process clauses of the United States Constitution. Part VI offers observations about what constitutional cheating reveals about our criminal justice system.
Pamela R. Metzger,
Cheating the Constitution,
59 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol59/iss2/4