If computer forensic analysts think they’re bogged down in the lab, overburdened by the exorbitant 2,000% rise in the number of cybercrime cases opened since 1996 as reported by the FBI, wait until they get to the courtroom. They may not see the lab again.

In a U.S. Supreme Court ruling handed down on June 24 in the case of Melendez-Diaz v. Massachusetts, the Court held that “certificates” of forensic findings submitted as prima facie evidence were admitted in error. In a controversial 5 to 4 vote that reversed the judgment of the Massachusetts Appeals Court, the Supreme Court held that admission of notarized forensic analysts’ reports violated the defendant’s 6^th Amendment right to confront witnesses against him under the Amendment’s Confrontation Clause. The Court determined that, in the absence of live testimony by forensic analysts who could then be cross-examined by the defendant’s counsel, such evidence was precluded.

Although the forensic evidence in question was drug-related, the Court’s ruling was not limited to any particular discipline of forensics. In fact, referencing potential errors introduced through dependence on the judgment of analysts, Justice Scalia, who delivered the Court’s prevailing opinion in this case, notes “The same is true of many of the other types of forensic evidence commonly used in criminal prosecutions. ‘[T]here is wide variability across forensic science disciplines...’” Given this and absent limitations, all forensic disciplines, including computer forensics, appear to be placed under the scope of this decision.

In the opposing opinion delivered by Justice Kennedy, dissenting Supreme Court Justices contend that the ruling “threatens to disrupt forensic investigations across the country.” For instance, “The FBI laboratory at Quantico, Virginia, supports federal, state, and local investigations across the country. Its 500 employees conduct over one million scientific [drug] tests each year... The Court’s decision means that before any of those million tests reaches a jury, at least one of the laboratory’s analysts [must make it to a courtroom], and sit there waiting to read aloud notes made months ago,” when there is no reason to believe that a forensic analyst’s live testimony in court will deviate in any way from the report.

Dissenting Justices also point out that the ruling did not attempt to define the term “analyst.” Further, the term “analyst” is not found in the Confrontation Clause, and there is no precedent on which to base the definition of such. Therefore, the definition as to who qualifies as the analyst in any given case is left to the individual States, along with the implementation of procedures governing the application of this ruling (e.g., demand and notice rules that provide the defendant a limited time in which to request the forensic analyst’s availability for confrontation once that defendant has been notified that an analyst’s findings will be brought into evidence). Thus, it appears as if this ruling will, indeed, require the forensic examiner performing the analytics to testify in court as to the nature of the evidence as well as the forensic procedures involved, thereby significantly affecting analysts nationwide.

More on the ruling and related opinions:

Justice Scalia contends that, in the opinion of the Court, “certificates” of evidence provided by forensic analysts that substantiate facts used by the prosecution against a defendant qualify as “testimony” against that defendant and thereby fall under the 6^th Amendment Confrontation Clause. In dissenting opinion, it is argued that scientific evidence submitted to courts via analysts’ certificates is offered by “unconventional” witnesses, in the sense that these witnesses have no personal knowledge of the defendant’s guilt and merely present scientifically neutral facts.