Federal and state prosecutors have increasingly resorted to using forensic expert testimony against defendants in white collar criminal cases. Forensic accountants testify in cases involving financial fraud, including securities, tax and money laundering violations. In environmental prosecutions, the government engages geologists, chemists, and microscopists to gather and analyze evidence of spills and releases of hazardous pollutants and chemicals. Prosecutors use forensic computer experts to prove a host of computer-related crimes, such as Internet fraud, unlawful access, and identity theft. They also recover electronic data and testify on spoliation of evidence in obstruction of justice cases. In both white and blue collar cases, however, the prosecution has sought to admit evidence from nontestifying forensic experts through surrogate witnesses, summary witnesses, other experts, and even documents to prevent the defense from cross-examining the experts.
Beginning in 2009, the Supreme Court issued a trilogy of opinions examining the reach of the Confrontation Clause of the Sixth Amendment in cases in which the prosecution sought to admit evidence and opinions of nontestifying forensic experts to prove essential elements of the crimes charged. The rulings in two of the cases--Melendez-Diaz v. Massachusetts and Bullcoming v. New Mexico (1)--have paved a new path for the defense to challenge the admission of evidence and opinions of nontestifying forensic experts. The third case, Williams v. Illinois, (2) resulted in a plurality opinion favoring the prosecution, but has limited precedential impact because a sharply divided Court could not agree on the basis for the result. As a result, the ruling in Williams may be limited to bench trials. While the trilogy of cases involved traditional blue collar crimes, white collar practitioners may rely on the holdings of Melendez-Diaz and Bullcoming in cases when the prosecution attempts to admit expert testimony through the back door.
This article examines the trilogy of Confrontation Clause cases in detail by discussing similar Confrontation Clause issues that arose in two recent white collar prosecutions and considering how they were addressed at trial. The first case, United States v. W.R. Grace, was a high-profile environmental prosecution charging the company and several Grace executives with violating the knowing endangerment provision of the Clean Air Act and defrauding the United States. The Grace verdict, an across-the-board acquittal of all defendants, occurred less than two months before the Court decided Melendez-Diaz, the first case of the trilogy. The second case, United States v. Ignasiak, was a health care fraud prosecution in which a physician was charged with illegally dispensing controlled substances to patients. The Eleventh Circuit's opinion in Ignasiak, reversing the defendant's convictions, was issued shortly after the Court decided Bullcoming, the second case in the trilogy. Through the framework of these cases, the article provides practical suggestions on how white collar practitioners may rely on the reinvigorated Confrontation Clause to preclude the admission of certain forensic evidence of nontestifying witnesses at trial.
I. The Supreme Court's Current Formulation of the Confrontation Clause
The Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." (3) It guarantees a defendant's right to confront those who bear testimony against him. (4) This "bedrock procedural guarantee" applies to federal and state prosecutions. (5) While the text of the Confrontation Clause could plausibly be read to apply only to "witnesses against" the defendant who testify at trial, the Court has rejected that limitation, and held that the Confrontation Clause also applies to certain out-of-court statements offered at trial. …