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 Table of Contents  
Year : 2018  |  Volume : 4  |  Issue : 1  |  Page : 40-48

Confrontation clause after Crawford and its impact on the admissibility of forensic evidence: A comparative study on the United States and China

Institute of Evidence Law and Forensic Science, China University of Political Science and Law, Beijing 100084, China

Date of Web Publication30-Mar-2018

Correspondence Address:
Dr. Xingyi Wang
China University of Political Science and Law, Beijing 100084
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Source of Support: None, Conflict of Interest: None

DOI: 10.4103/jfsm.jfsm_78_17

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Crawford is a watershed case separating hearsay exceptions and confrontation. Overruling Roberts, Crawford established a new bright-line test for Confrontation Clause. Testimonial out-of-court statements, whether reliable or not, are inadmissible unless the prosecution has shown: (a) the declarant is unavailable and (b) the defense has a prior opportunity for cross-examination. Applying Crawford's primary purpose test, testimonial out-of-court forensic reports (usually as affidavits) might not be admissible. However, Crawford underlined that the Confrontation Clause has its independent procedural values and other nonepistemic functions.

Keywords: Confrontation, Crawford, Roberts, testimonial out-of-court statements

How to cite this article:
Wang X. Confrontation clause after Crawford and its impact on the admissibility of forensic evidence: A comparative study on the United States and China. J Forensic Sci Med 2018;4:40-8

How to cite this URL:
Wang X. Confrontation clause after Crawford and its impact on the admissibility of forensic evidence: A comparative study on the United States and China. J Forensic Sci Med [serial online] 2018 [cited 2022 Aug 10];4:40-8. Available from: https://www.jfsmonline.com/text.asp?2018/4/1/40/229004

  Introduction Top

This article is a comparative study of American law and Chinese law. China shows much deference to forensic evidence and preference to written depositions offered by hearsay declarants as well. In particular, expert testimony is presumed to be reliable. Therefore, there is no need to examine in court. The accused does have the right to be confronted with the witness against him, but this right is not always necessary or sufficient. However, American law shows a distinct picture.

This article will start by tackling with the tension between hearsay exceptions and Confrontation Clause, which has been one of the most complicated issues in common law. Roberts ruled that admitting reliable hearsay statements does not violate Confrontation Clause. [1] However, Crawford overruled the reliability test replacing it by a bright-line test. [2] The testimonial out-of-court statements are inadmissible unless the prosecution has shown the unavailability of the declarant and the defense had a prior opportunity for cross-examination. Therefore, Confrontation and hearsay exceptions are separated. [3] Crawford asserted that the Confrontation's cross-examination is a separated procedural protection for the defense even though the out-of-court statements might be reliable. [4]

Crawford could bring about an "admissibility crisis" for forensic lab reports. The forensic analyst is allowed to submit the written affidavit while not to testify in court. According to Roberts, this out-of-court statement's reliability could be guaranteed by hearsay exceptions, and they might be admissible. However, Crawford ruled the testimonial out-of-court statements that shall be checked by Confrontation which offers separate procedural protection for the accused.

This article includes six parts. The background part first explains the tension between Confrontation Clause and hearsay exceptions, and then briefly looks back to the old rule that combined the two, i.e., the reliability test established by Roberts in 1980. In 2004, overruling the Roberts' reliability test, Crawford set up a new rule which separated the hearsay exceptions from Confrontation Clause.

Part I suggests that the Crawford court did not explicitly define what kind of hearsay statements are testimonial or nontestimonial but developed an ambiguous primary purpose test. The Supreme Court, in later cases, attempted to draw up the line by exploring the primary purpose of the alleged hearsay statements.

As the central part, Part II argues that the new confrontation rule in Crawford might be an overwhelming obstacle blocking the forensic lab reports away from the court in practice. The Supreme Court has made several notorious rulings on the admissibility of lab reports by far of particular kinds such as drug tests, blood alcohol tests, and DNA tests. Most of the out-of-court lab reports are taken as testimonial and therefore inadmissible. However, it is not certain by the Supreme Court whether the autopsy report is testimonial or admissible under Crawford's new rule.

Part III briefly argues that it probably will exclude more forensic lab reports when the forensic scientists or analysts are not called in court. Moreover, the following Part IV takes a different perspective to review Crawford. Part V explores what lessons and experiences could China draw from American confrontation law under its current legal reform on court trial proceedings. In conclusion, this article shows the optimism that China's current legal reform on criminal justice system will have a promising future.

  Background Top

The tension between Confrontation Clause and the rule against hearsay is increased

Hearsay is not admissible unless it fits into one nonhearsay or hearsay exception, which suggests that out-of-court statements could be permitted while the declarant is not called in court. However, the defense is constitutionally entitled to confront the witness against him. [5] Admitting out-of-court statements might trigger the confrontation issue. [6]

Nowadays, the tension between confrontation and hearsay exceptions is becoming even more severe as there are a number of hearsay exceptions in case law and federal rules of evidence. [7] It is suggested that more and more hearsay statements are permitted into court without the declarant being confronted or cross-examined by the defense. [8] Some legal scholars also show their concerns that hearsay rule has become the rule of admission not that of exclusion. [9] Hearsay rule has already lost its original connotations. [10]

Roberts' reliability test connected the confrontation with hearsay exceptions

The relationship between confrontation and hearsay exceptions has once been obscure for such a long time until 1980 when Roberts was made. Since then, the US Supreme Court applied a reliability test. [11] According to Roberts, what matters for hearsay statements in the adversarial system is the reliability, while confrontation could be one of the tools to guarantee this reliability. If there are other ways to prove the reliability of hearsay statements in question (such as by judicial notice), it will not be necessary to cross-examine the hearsay declarant.

Furthermore, Roberts ruled that in a case where the prosecution showed the unavailability of the absent declarant, if the out-of-court statement could fit into a firmly rooted hearsay exception, its reliability court then might be inferred. [12] Therefore, this hearsay statement has adequate indicia of reliability. [12] Accordingly, admitting this statement will not violate the defendant's confrontation right. Besides, if there are other particularized guarantees of trustworthiness, this hearsay statement is admissible too.

It can be inferred in Roberts that confrontation is meant for guaranteeing the reliability of hearsay statements just as the hearsay rule. To ensure the accuracy of fact-finding is the mutual concern of both mechanisms. Confrontation Clause could not preclude reliable hearsay exceptions from court even though the defense is entitled to cross-examine the hearsay declarant. As a result, confrontation and hearsay exceptions are practically connected by Roberts in some sense that confrontation made a compromising retreat.

Crawford set up a new rule

Things have historically changed in Crawford. [13] The US Supreme Court overruled the Roberts by setting up an entirely new rule that testimonial out-of-court statements shall not be admitted under Confrontation Clause. Roberts' reliability is not the focus of Confrontation Clause.

In Crawford, the court strictly criticized the Roberts' reliability test. [14] First, Roberts is wrong in mixing Confrontation Clause and hearsay exceptions. They have different values and ideas. Second, Roberts test could be so variable, subjective, and arbitrary that it could mostly depend on judicial discretion. [15] The defense's confrontation right may not be sufficiently and efficiently secured. Third, the essence of confrontation rests in providing the defense with procedural protections. Moreover, the confrontation could never be substituted with judge's evaluations on the reliability of hearsay statements. Forth, it is not following the adversarial traditions to allow the states to bring charges without restrictions. Judicial discretion shall be checked by confrontation as well. In other words, confrontation is an independent mechanism offered by constitution preventing arbitrary prosecutions and convictions. The doctrine of the hearsay rule could not cover all the factors above. Therefore, Roberts needs to be reconsidered.

Briefly, Crawford ruled that Confrontation Clause governs testimonial out-of-court statements. Testimonial out-of-court statements shall not be admitted unless the prosecution could show that the witness is not available and the defenses' prior opportunity to cross-examination. [16] If the prosecution seeks for the admission of testimonial out-of-court statements, he/she has to show both of the following two factors, i.e., (a) the witness's unavailability and (b) the prior opportunity to cross-exanimation. If either requirement is not satisfied, admitting the testimonial hearsay statements will be unconstitutional.

Since then, the confrontation and hearsay are departed as two separate devices in American law. Reliability is not relevant when it comes to the issue of whether Confrontation is satisfied. Confrontation has its independent values and needs to be considered separately. In other words, admitting even reliable hearsay statements still might violate the Confrontation if the prosecution has not shown the witness's unavailability or the defense's prior opportunity of cross-examination. [17]

  There are Still Unsolved Issues in Crawford Top

Crawford established a bright line of hearsay exceptions and confrontation. It still leaves it open how to define testimonial or nontestimonial out-of-court statements. [18] The court puts that, "We leave for another day any effort to spell out a comprehensive definition of testimonial." [17]

The primary purpose test is applied to define "testimonial"

In Crawford, the court lists several testimonial out-of-court statements, such as statements made in preliminary hearings, grand jury hearings, and prior trials and during police interviews or interrogations. [17] The out-of-court declarant could reasonably expect those statements to be used for accusations possibly. [19] Alternatively, an objective witness could reasonably believe that his statements might be used in later or future trials. [20] It seems that whether the out-of-court statement is testimonial or not could be decided by exploring its primary purpose. In other words, testimonial out-of-court statements are primarily made for possible prosecutions or in later trials.

In arguing the out-of-court statement in question testimonial and inadmissible, the court explored the concepts of witness and testimony. In Crawford case, the hearsay statement was made during police interviews after the alleged criminal conducts ended. The declarant was knowingly describing a description of past events, which made her a "testifying witness" in the sense of Confrontation Clause. Therefore, the defense has to be given an opportunity to be confronted by the adverse witness either in pretrial hearings or live court. This procedural protection is provided and also secured by constitutional confrontation.

Davis developed an ongoing emergency circumstance exception

In Davis v. Washington, the US Supreme Court attempted to decide whether the statements made in ongoing emergency circumstances are testimonial or not. [21] The court first restated and emphasized Crawford's rulings that testimonial out-of-court statements are under procedural regulations by Confrontation, [22] by which they could be contested and challenged by cross-examinations. Second, the court analyzed the differences in case facts between Crawford and Davis. Davis is different from Crawford in several ways. The 911 reports and recordings are made not for describing the past events but for getting assistance from the police officer. Moreover, the reporter at that time was still in danger. More significantly, the statements were not made in formal interrogations as in Crawford. Thus, conclusively, the 911 reporter was not the witness under Confrontation Clause. He was not testifying either. Accordingly, the court ruled that the 911 recordings made by the reporter are not testimonial, so the out-of-court statements are admissible in later trial. [23]

Before Davis, early in Hammon v. Indiana, [24] the court tried to decide whether the emergency could be applied as the Crawford exception. The ruling is evident due to the similarities between Hammon and Crawford. Both of the cases are about the statements made after the criminal act was conducted. Moreover, both are made during police interviews describing past events. Out-of-court statements in Hammon, accordingly, are testimonial, and the declarant is the witness implied in the Sixth Amendment.

The primary purpose test is objective and of the totality of circumstances

In Michigan v. Bryant, [25] the court says that the primary purpose test is objective and of the totality of circumstances. In Bryant, the Supreme Court has to decide two issues. One is whether the victim's out-of-court statement is testimonial. Also, the other is whether Bryant fits the ongoing emergency exception of Davis. As for the first issue, the court argues that Bryant is similar to Crawford in which the hearsay statement is testimonial because it is a description of past events. The second one is the crucial, controversial argument. The court's answer is affirmative.

The Bryant court says that Bryant could be a "Davis exception" in a broad way. At the first glance, Bryant is not exactly an "ongoing" emergency case because the suspect has left the scene at the time of the 911 call. However, the court takes a different position applying Davis on the ground that the so-called ongoing emergency exception is not a subjective test. Neither is it an exploration of the police officer's mental states. The emergency exception is an objective test inquiring the purpose a reasonable third person would have had under the circumstances in this case. The fleeing suspect is carrying a weapon, which threatens the victim and the neighborhood as well. Besides, the victim is dying and could not move at that time, and it is still possible that the suspect would come back to the scene. The emergency is still there. After reviewing the totality of circumstances, the court determined that Bryant fits Davis's emergency exception. Hence, the victim's out-of-court statement is not testimonial and then admissible. [26]

  Applying Crawford to Forensic Lab Reports Might be Strikingly 'Exclusionary' Top

When applied to forensic evidence, Roberts and Crawford come to different outcomes. In general, when the conducting scientists or analysts do not appear in court, the out-of-court forensic lab reports could be excluded by the rule against hearsay. [27] However, these lab reports are often presumably reliable because professionals or specialties make them complying with proper scientific protocols. Therefore, forensic lab reports could fit into some hearsay exceptions (public record or business record). However, Crawford chose a different logic instead of looking into the reliability. There might be a concern that Confrontation is probably not satisfied when admitting hearsay but reliable lab reports.

Crawford set a restriction on the admissibility of forensic lab reports' evidence reasoning that out-of-court lab reports are accusatory, and forensic scientists could reasonably presume that their final analysis could be used in later prosecutions or possible trials. By far, the US Supreme Court has made several rulings on the admissibility of some specific lab reports, drug tests, blood alcohol tests, DNA tests, etc. Most of these decided lab reports are found as testimonial and therefore inadmissible. Accordingly, the forensic lab reports in question will be excluded if the prosecution could not prove the unavailability of the declarant or the defendant's prior opportunity for cross-examination.

Testimonial drug test report is inadmissible

In Melendez-Diaz v. Massachusetts, the US Supreme Court ruled that it was violating the right of confrontation for the prosecutor to submit a forensic drug test report without the testimony of the analyst who performed the test. The drug test report is testimonial because it could be used for the prosecution. Moreover, the performing forensic technician presumably knew the purpose of his test results when producing the affidavit. Therefore, the forensic scientist is presumed to be the witness against the accused under the Sixth Amendment.

Under those circumstances, the forensic analyst shall be called in as a witness in court and deliver live testimony. In Melendez-Diaz, the prosecution did not show that the forensic scientist is unavailable, nor did it prove that the defense had the prior opportunity to cross-examination. This lab report is accordingly inadmissible under Crawford.

Testimonial blood alcohol test report is inadmissible

In Bullcoming v. New Mexico, [29] the US Supreme Court ruled that the surrogate analyst could not testify about the testimonial statements in the forensic report of the certifying analyst under the Confrontation Clause.

The appellant was accused and convicted based on a blood alcohol test result. During the trial proceeding, the analyst who performed the test and then wrote the final report went on leave for some reason and was not summoned by the court. However, the prosecution called another analyst to testify about the original report. Although this analyst is familiar with general alcohol test procedures, he did not participate in or observe the process of blood sample test performance.

The US Supreme Court upheld the defense's argument by ruling the blood alcohol test report in question inadmissible. Since the original technician who performed the test did not testify in court, according to Crawford, it should be demonstrated by the prosecution that the prior forensic scientist is not available, and the defense had a previous opportunity of cross-examination. Otherwise, the lab report shall be excluded.

Nonhearsay DNA result is not testimonial

One year after Bullcoming, US Supreme Court delivered Williams v. Illinois. [30] The court upheld the verdict by ruling that the form of expert testimony produced in Williams does not violate the Confrontation Clause.

The appellant was accused of and convicted of sexual assault. The prosecution submitted the DNA test results to the court, and the semen sample was obtained from victim's vaginal swabs. A privately owned laboratory in Maryland made the DNA test, but another expert was called to testify in court.

The US Supreme Court upheld the conviction by ruling that Confrontation Clause does not prohibit admitting a testimonial out-of-court statement for another purpose unless it is presented to prove the truth of what it is asserted. [31] The court tells the evidential differences between Melendez-Diaz and Bullcoming: (a) while conducting the DNA test, the forensic scientist was unaware of the existence of an alleged criminal suspect. It is not clear whether there will be possible criminal charges; and (b) significantly, Melendez-Diaz and Bullcoming are cases about formal legal documents, such as the affidavits, while in Williams, there only refers to a "match" or a "no match." This match result is not meant to prove the authenticity of the alleged fact but only to explain the basis of the expert's opinion. Therefore, this DNA test statement is not testimonial for the Confrontation Clause since there is no testimony or witness. Thus, there are no Sixth Amendment violations.

Williams acknowledged some limited admissibility of out-of-court statements, namely, it is constitutional to admit the testimonial out-of-court statements submitted to the court for another purpose other than of the authenticity of the claiming fact.

Whether testimonial autopsy report is testimonial or not is still unclear

The pathological reports, especially the autopsy report, are another tough question after Crawford, and in some way, this is even more difficult. Cause of death in autopsy report can often be the essential evidence to prove the critical elements of a crime (such as the causality). In addition, the time of death might be an alibi for a murder charge. Therefore, autopsy report plays an important role in particular charges and convictions.

The difference between drug tests and the blood alcohol tests can be noticeable. Autopsy reports may be throughout the whole criminal trial, while murder trials are often time-consuming and full of uncertainty. There are possibly many kinds of circumstances where the medical examiner or the forensic pathologist performing the autopsy and delivering the autopsy report did not appear in court. Then, there might be a confrontation violation for the purpose of Crawford's new rule for Confrontation Clause. [32]

Disputes in lower courts

It is still obscure whether the autopsy report is testimonial or not, neither does it fit into some Crawford exception. Since there is no clear rule, lower courts have the discretion to read Crawford and its related cases differently. Moreover, lower courts have shown significant disparities, which also demonstrated a lack of consistency in the administration of case law.

The gap within federal courts seems not to be huge. Among the federal courts, the First, Second, Sixth, and the Ninth Circuit Courts have ruled that autopsy reports not be testimonial. Therefore, they are constitutionally admissible. However, the Eleventh Circuit Court and the Washington DC ruled that autopsy reports are testimonial; consequently, they shall comply with the requirements of Crawford. [33]

State courts, individually, have shown different attitudes toward this issue in delivered verdicts. Before Melendez-Diaz was made, the majority of state courts thought forensic lab reports including autopsy reports are not testimonial and then admissible. However, after Melendez-Diaz, things have changed significantly. Overwhelmingly, most state courts ruled the forensic lab reports including autopsy reports as testimonial subject to the constitutional review of confrontation. [34] One court ruled that the court has the duty to decide whether the autopsy report is related to the criminal facts which are relevant to later criminal trials. [35] Some state courts ruled that autopsy report is testimonial if it is reasonably expected by the conducting medical examiner or the pathologist that the autopsy report might be used in later prosecutions. [36] Other state courts argued that whether it might be used in later prosecutions is not the concentration but it is the requirement that the defense is entitled to cross-examine the conducting medical examiner to challenge the veracity, reliability, or trustworthiness. [37] However, there are still state courts admitting forensic lab reports including autopsy reports. Furthermore, they had ruled that the scientific expert called to testify does not have to be the exact one who exercised the autopsy and delivered the report. [38]

Disputes among legal scholars

There are controversies among legal scholars. Different ideas and perceptions are expressed. Many legal scholars have affirmed that autopsy reports are testimonial and it is necessary for the forensic pathologist who performed the forensic autopsy and wrote the report appear in court to testify. Otherwise, the autopsy report is not admissible. [39] The main reason rests in that although there are strict operational procedures and proper protocols in pathological anatomy, personal professions and experiences are still necessarily required during evaluations and analysis. Sometimes, it is not required for a forensic pathologist to reasonably expect his report might be used for prosecutions or criminal trials, but once there is a possibility to be realized in practice, the defendant then should have an opportunity to challenge the accuracy of the autopsy report by cross-examinations. [40]

Some scholars present a compromising perspective. They argue that whether autopsy reports are testimonial or not is not a simple yes or no question. In fact, it all depends. Generally speaking, forensic autopsy reports are testimonial as a totality of one piece of evidence, but they still contain some nontestimonial parts, such as autopsy X-ray photographs, and other physical evidence. These parts will not trigger the confrontation violations. Besides, these photographs and data can be preserved for a relatively long time and are of absolute objectivity and high credibility as well. [41]

This article tends to approve the idea that autopsy reports are testimonial and therefore subject to Crawford's ruling on Confrontation Clause. According to Crawford, autopsy reports are testimonial due to their primary purpose of possible accusations or trials.

The idea that autopsy reports are taken as the business records exception and then admissible does not suffice at all. Neither is it logically sound enough. In Melendez-Diaz v. Massachusetts, the court ruled that most business records will escape Sixth Amendment scrutiny not because they meet the exception to the hearsay rule, but because they are nontestimonial. A record prepared in the ordinary course of business will necessarily not have been created to prove a fact at trial. Autopsy reports are entirely different things. When a dead body is found, if the suicide is excluded, or the cause of death could not be sure, there will often be an autopsy. Autopsies are performed with a relatively apparent purpose for incrimination (or exonerations). Accordingly, it is hardly justified that autopsy reports are neither testimonial nor business records.

Autopsy reports are not like other lab reports such as the drug test which mostly refers to a positive or negative result. They are much more like a medical diagnosis which requires the personal experiences for evaluations. The report is also based on hearsay materials such as the prior medical records of the deceased, or information obtained by conversations with the relatives or the neighbors. Therefore, it is appropriately necessary for the forensic pathologist or the medical examiner to testify about their autopsy reports, unless the prosecution has shown the unavailability or the prior opportunity to cross-examination. Otherwise, it will trigger the confrontation problems.

Taking the autopsy photograph as an example, in some way, they can be stronger testimonial statements imposing an incriminating impact on the juries. Besides, X-ray photographs, biological data, and other physical evidence are mostly circumstantial evidence. They are the foundation for forensic scientific evaluations, not the whole picture of the story. Forensic scientists are still required to construct the "scientific story" with evidence and to explain the forensic evidence as well. Therefore, it is necessary that the procedural requirements by Crawford should be sufficiently satisfied.

  Crawford's 'Exclusionary' New Rule Has Changed The Status Quo Top

As the old reliability standards established by Roberts in 1980 were overruled, Crawford's new rule sets up stricter procedural limitations on the admissibility of scientific evidence. Under the reliability standards, in the case where forensic scientists who carry out the tests fail to appear in court if the prosecution can prove the reliability of the lab report, admission does not violate the confrontation right. Besides, the reliability requirement can be satisfied by (a) being a firmly rooted hearsay exception, (b) cross-examinations, or (c) other methods, the hearsay statements in question are admissible without any confrontation violations brought about. Briefly, cross-examination under Confrontation Clause could be one of the ways to guarantee the reliability. Forensic lab reports are highly trustworthy due to the professional knowledge required, proper protocols complied with, and scientific procedure accepted. Practically, hearsay lab reports could always fall into some hearsay exceptions such as business records or public records.

If applied strictly in practice, Crawford might bring about high consumption of time and cost. The Supreme Court has not decided a general test for all testimonial out-of-court statements yet. However, Crawford and the relevant cases afterward indicate that the new confrontation rule not only restrains the admissibility of scientific evidence, but it also increases the difficulties for the prosecution to make the case with additional procedural requirements, i.e., proof of unavailability and prior opportunity of cross-examinations. For example, mostly in practice, hearsay declarants could refuse to testify out of every reason. Things become even more difficult when it happens to be domestic violence. It is also possible that the pathologist might be unavailable as the criminal trial usually takes relatively a long time when the victim is dead.

Proof of unavailability requires the prosecution make the good effort to make the hearsay declarant appear in court. [42] The prior opportunity of cross-examinations indicates more interactions with the defense and the defense attorney before court trials. However, the analyst who conducted the forensic test could be "available" at that time.

Excluding out-of-court lab reports may in some way have some passive impact on fact findings. It is widely known that scientific evidence plays a vital role in exonerating those who are wrongfully convicted. [43] Excluding highly reliable scientific evidence may conflict with the public interest in crime control or truth-seeking. Furthermore, without sufficient relevant evidence, the accuracy of fact-finding might be inevitably influenced in some way. There is a suggestion indicating that requiring the forensic analyst's appearance in court does not practically prevent the wrongful convictions. [44]

  How to Read Crawford's 'Exclusionary' New Rule in a Good Way Top

Confrontation has independent procedural values

Confrontation focuses on the procedural guarantee for the defendant rather than the consideration of reliable guarantee, which is practically significant and constitutionally necessary whether the hearsay rule works or not. This procedural requirement is the final obstacle for the prosecution to presenting incriminating evidence. [45] Therefore, if confrontation is not satisfied according to Crawford, the out-of-court statement in issue might not be admitted in court.

Confrontation itself is one way to obtain reliable forensic evidence by cross-examinations. This reliability is not identical to or could not be substituted by that guaranteed by hearsay exceptions. It is widely known that there are several fields or disciplines in which the validity or reliability is questioned. [46] Worse still, the flawed forensic analysis is considered to be one of the top causes of wrongful convictions by empirical studies. [47] Furthermore, the cognitive bias in forensic investigations is still blocking forensic practitioners from unbiased results. [48] Besides, there are human error or knowingly fraud in forensic labs that should not be ignored; [49] therefore, the integrity is also questioned. [50] Crawford showed careful considerations on these practical issues by putting the forensic science and forensic evidence under Constitutional Confrontation review in court.

Confrontation has other functions apart from truth-seeking

Reliability refers to the substantial outcomes of criminal trials. Although truth-seeking is considered as one of the fundamental purposes and values of the criminal justice system, it is still not the only concern. Similarly, Confrontation Clause has functions not epistemological. One of the common law concerns is that it is necessary to protect the individuals from the government's persecuting by secret and arbitrary means, while Confrontation is precisely meant for checking state powers. [51] Furthermore, Confrontation could force judges to restrain its discretionary power like Roberts which is highly criticized by Crawford court. [52] Moreover, also, the accused will relatively obtain the effective defense if Confrontation is satisfied. [53]

It is undeniably true that Crawford's new rule could make prosecutions or convictions tougher. However, it can take a predictive part of future allegations. The prosecution could meet Crawford's requirements by adjusting strategy. If the prosecution does not plan to call the forensic scientist who executed the test and delivered the report in court to testify but still intends to produce the lab report into the court, the prosecution should show in court that the forensic scientist is unavailable and the defense has a prior opportunity to cross-examination. Whether the defendant exercised the opportunity is not relevant because the opportunity provided by Crawford is up to the defense.

Crawford has two sides. On the one hand, Crawford's new rule had blocked and would block many kinds of forensic analysis reports from courts when the analyst who conducted the required tests and wrote the final reports were not called in court, but the prosecution presented his/her affidavit in court. In legal practice, the forensic lab reports could usually be satisfied as evidence because the formal affidavit could guarantee the reliability (Roberts). Crawford, apparently, changed the situation. Almost all lab reports could easily be found inadmissible. This "exclusionary" effect on forensic evidence brings about the "admissibility crisis" in some way. However, on the other hand, Crawford is not meant to exclude relevant evidence but to restate that Confrontation has independent procedural values other than seeking the truth. American legal practice could be a good example for China where the defense is not entitled to cross-examine the prosecution's witness, and the court shows much deference to written testimony or out-of-court statements.

  What Could China Learn from the United States? Top

China, indeed, has not established the rule against hearsay, nor explicitly entitled the defendant with the right to confront the witness against him in Constitution or Criminal Procedure Law (2012). Therefore, it seems that there is no statutory contradiction between hearsay exceptions and confrontation. However, this does not mean that China could ignore the similar issue in legal practices.

China has a distinctive witness system from the United States

Considering the different contexts between the United States and China, it is necessary to introduce China's unique witness system in case of confusion. First of all, this section would like to take a brief view of the American system and make a short comparative study with China. In the United States, the witness has two meanings. One indicates the person who is called and appears in court offering live testimony. Moreover, the other refers to the person who provides testimonial statements on the matter whether he or she is called and appears in court or not. The former is recognized as the narrow meaning by Wigmore, and the latter is the relatively broad concept acknowledged by Crawford. Besides, the witness could also testify to facts or opinions, such as the eyewitness or the expert/nonexpert witness.

In China, "witness" specifically refers to the fact witnesses, a narrower conception. According to the statute, "witness" could be any competent person who knows the related fact whether he or she is called and appears in court or not. [54] Practically, the standard practice is that the person interviewed by the police during the investigation was required to make a written proposition, and the prosecution produced this document as evidence and reads it in court. [55] The declarant does not have to be a live witness at all. Concerning the appraiser too, such as the expert witness under American law, she is often called the prosecution's witness to offer her opinion. [56] Just like in continental civilian systems, China's appraiser is usually taken as the assistant to the court. [57] Therefore, the narrower witness excludes opinion witness, and the opinion witness is taken as one kind of a separated subject, i.e., the appraiser in China's criminal justice system. [58] For clarification, under the context of forensic evidence, the so-called "expert witness" could equal to China's appraiser.

China shows much deference to forensic evidence and affidavits

China shows much deference to forensic evidence and expert testimony. When it comes to science and technology, people tend to rely on them instead of being skeptical. There are similar things in China's criminal justice too. There seems to be a presumed validity and reliability of forensic evidence. Forensic science itself is a guarantee for the reliability of forensic evidence (including expert testimony), which indicates that there is no compelling necessity for the opponent to cross-examine the experts in court. Theoretically, this presumption could be rebutted, but it rarely succeeds in judicial practice.

China's legislation shows much tolerance of out-of-court written testimony, and it is preferable for the declarant not to appear in court but just to provide depositions (hearsay statements in nature). [59] The affidavits or depositions produced by the prosecution are substantively hearsay statements. Still, most of these hearsay statements are allowed into court with no restrictions. It is getting even worse since this admission will not trigger the confrontation issue because according to China's current statutes, the defense has not entitled the right to challenge the prosecution's witness or its testimony in court trials or even prior proceedings.

China's Criminal Procedure Law (2012) does provide that the defense could examine the expert witness, but the statute does not provide separated methods of examinations (direct-examination or cross-examinations) like common law practice. [60] Even though the prosecution just presents written propositions in court, the examination will be sufficed without the witness appearing in court. [61] Therefore, it is farfetched to recognize that China's examination of evidence is like the adversarial examination since the out-of-court declarant does not appear in court. Moreover, China also shows reluctance to follow the example of cross-examination mechanism which is embedded in the US Confrontation Clause.

The reason mostly lies in the reality that the prosecution who represents the State is presumed to have the "reliable" evidence. The prosecution's case is usually not easy to be questioned or tested before or in court. That is precisely the reason why confrontation matters in China's criminal courts. By cross-examinations, not only the accused could question the prosecution's witness, but also, the prosecution is required to present his evidence and argue his case in a transparent and fair way. That is why Crawford endeavored to emphasize that Confrontation has independent procedural values that could not be substituted.

China needs a "paradigm shift" in criminal justice ideology. Traditionally, substantive justice matters much in China's criminal justice system where the procedural justice could be compromised in individual cases, and the substantive truth (or the actual outcome) could justify itself. However, despite the truth-seeking, constitutional procedural protections for the defense, as suggested in Crawford, still prevail.

What China needs is live and explanatory testimony on forensic evidence
"Transplanting" American criminal justice system in China might not be an appropriate idea even with appropriate adjustments. The proper way is to look deeply into common law mechanisms and the underlying principles and rationales and make adjustments based on local circumstances.

It is widely recognized and accepted that the Criminal justice system is presumed to find the truth, prevent innocent people from being wrongfully prosecuted or convicted, and to seek the justice through a fair trial. These factors are also concerned by the rule of law.

China shall entitle the defense more opportunities to challenge the prosecution's case. The prerequisite will be that the hearsay declarant or appraiser is subject to cross-examination by the defense in court. In other words, China has to sufficiently and efficiently guarantee the defendants' confrontation against the prosecution's appraiser by requiring his appearance in court. Besides, the appraiser's expert testimony is recognized inconclusive that the court has no authority to admit its findings automatically. It also means that China shall get rid of the arbitrary idea that the appraiser's testimony is reliable and conclusive in legal practice. Accordingly, the prosecution has to show the appraiser's compliance with proper and sound protocol and the chain of custody as well. After being called into court, furthermore, the appraiser still has to explain the underlying rationales and principles accepted, the sound procedure conducted earlier in this case, and the previous testified experiments if necessary. Furthermore, he or she still needs to explain the contents of its findings in forensic reports. All these factors could assist to fact findings and secure the accuracy of the final results.

As mentioned above, Crawford might bring about some practical issues such as the time cost for the prosecution and the court trials too. However, this is the necessary cost for the criminal justice system. There could be various reasons for the declarant not appearing in court, and it would be unpractical to exclude all out-of-court statements. Furthermore, forensic reports are not like the other kinds of out-of-court statements which have a higher risk of unreliability and much impossible opportunity to cross-examinations. If considered in the context of Roberts, forensic reports, though they are not the deeply rooted hearsay exceptions, could be guaranteed of reliability if the analyst appropriately performed the test complying with the sound and proper protocols. However, Crawford has its concerns about confrontation even it might go further.

  Conclusion Top

Again, as it was known to all, the US criminal justice system is entirely different from China's legal system. However, no matter in which jurisdiction, adversarial, inquisitorial, or the mixed ones, human beings are thinking alike and share similar ideas on how to find the facts in criminal cases or prosecuting and convicting the accused through fair trials. Besides, it could not be denied that there are many universally shared principles and ideas in the context of criminal justice, such as the right to a fair trial, due process of law, and the rule of law. Taking other countries as the mirror, China could watch its reflection from a new perspective.

Fortunately, as for China, with the increasing attention on human rights' protection, the trial court is willing to embrace challenges (objections or dissents) brought by both prosecution and the defense, which is mainly meaningful for the defense that she would be entitled more opportunities to question the prosecution's case. Being not an adversarial jurisdiction could no longer justify that the defense has no right to challenge the witness against him. Confrontation is taken as the procedural protection for the accused. Expert opinion, although the reliability might be guaranteed, still needs to be governed by the procedural mechanism because reliability is not the only pursuit of the criminal justice system. Therefore, confrontation, as the final obstacle blocking forensic evidence out of the court, might be a good start for China's criminal justice improvement.

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  References Top

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