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Forensic reports apparently linking a defendant to a crime often constitute the most powerful and persuasive evidence that can be offered at a criminal trial. Yet the Supreme Court is sharply divided about the constitutional requirement for admitting such reports under the Confrontation Clause. In the three cases addressing this question the Court divided 5-4 in its first two decisions and 4-4-1 in its most recent opinion. In a recent dissent to the denial of a Petition for a Writ of Certiorari in Stuart v. Alabama, Justice Gorsuch noted that the Court’s opinions on this question “have sown confusion in courts across the country.” Justice Gorsuch urged his colleagues to clarify the law in this area and went on to reveal his own views about the application of the Confrontation Clause to forensic reports. His views, which are analyzed in this article, are of critical importance because he is the potential fifth vote who could either overturn or reaffirm the controlling case law in this area. It also appears that he intends to play a leading role in clarifying and shaping the future direction of confrontation jurisprudence. Justice Gorsuch is the successor to Justice Scalia, who developed the now prevailing interpretation of the Confrontation Clause as requiring “testimonial” hearsay to be cross-examined. Justice Scalia’s interpretation of the Sixth Amendment is a major part of his legacy, but is currently under attack in these cases. How much of the legacy of Justice Scalia that survives may depend to a considerable extent on Justice Gorsuch, which is why his views on this issue, which are analyzed in this article, are of particular importance.

GW Paper Series

GWU Law School Public Law Research Paper No. 2019-40; GWU Legal Studies Research Paper No. 2019-40


U. Chi. L. Rev. Online (August 27, 2019),

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