Confronting the Forensic Facts

Most matters involving white-collar investigations and prosecutions do not result in trials, so evidentiary issues are not frequently discussed in articles on business crime. A new focus on evidentiary issues, however, is warranted in light of a pair of recent Supreme Court cases built upon the Sixth Amendment's Confrontation Clause. See Crawford v. Washington, 54 U.S. 36 (2004) and Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009). These two cases have given criminal defense attorneys potent new weapons to challenge forensic evidence proffered by the government ' not only the potential right to confront forensic analysts, but also the potential right to demand broader and earlier discovery so that counsel is able to make full use of the right to confrontation identified by the Supreme Court.