Boston University School of Law

March 25, 2011


Steven Winer (’07) unravels complexities of Confrontation Clause and evidence in Law Review article

An article co-authored by Steven Winer, J.D. (’07) was recently published in the New England Law Review.

The article, “Forensic Evidence in Massachusetts After Melendez-Diaz,” examines the implications of Melendez-Diaz v. Massachusetts in criminal trials that require forensic evidence and, in particular, call into dispute the parameters of the Confrontation Clause as they apply to such evidence.

Collaborating with Essex County Superior Court Associate Justice Hon. David Lowy, J.D. (’87) and Boyle, Shaughnessy & Campo, P.C. attorney Robert Stetson, Winer sought to smooth out the complexities that Crawford v. Washington, initially, and Melendez-Diaz v. Massachusetts—which ultimately loosened applications of the Clause—introduced into the domain of evidence as precedents.

The inconclusive nature of the cases, according to Winer, offered the authors an opportunity to tackle a legal, rather than factual, dispute.

According to Winer, the 2004 Supreme Court decision in Crawford v. Washington formed a critical juncture in judicial approaches to the Sixth Amendment’s Confrontation Clause—that is, the right of the defendant to confront his accusers.

“[With Crawford v. Washington] the Supreme Court said two things: they said testimonial evidence was key and they said they weren’t going to provide a clear-cut definition for ‘testimonial,’” said Winer. “Every judge in the country was trying to figure out what to do with that decision—it has left a lot of unanswered questions and complicated issues.”

The subsequent 2009 Melendez-Diaz decision implied, moreover, that forensic evidence was not categorically exempt from the Confrontation Clause.

“But this was a 5-4 decision—it was contentious,” said Winer. “The Supreme Court didn’t agree with itself. The dissent raised the specter of this being totally unworkable…trials are going to be completely unwieldy.”

The prospect of the Clause covering anyone involved in the forensic testing of evidence—given concerns in the realm of trial functionality—was, indeed, a significant driving force behind the article.

“Judge Lowy is a trial judge who has to conduct these actual trials, and the practical consequences of whether or not he’s requiring the prosecutors to bring in some cavalcade of witnesses is…not some abstract question,” said Winer. “It was very much something he wanted to know for very practical reasons.”

Winer was already researching Melendez Diaz for Judge Lowy—who had previously published an article on the case—when he was snagged by an Indiana Supreme Court case for which the vagueness of the Confrontation Clause’s parameters had proved especially cumbersome. Winer had, furthermore, stumbled upon a proposition on the Internet that more be written about the topic in detail.

Judge Lowy, who oversees Winer’s internship at the Essex Superior Court and also taught his trial advocacy course at BU Law, agreed to collaborate on the project after Winer, already convinced that the unsettled nature of the topic merited an article, was able to secure Stetson as a third partner.

“Especially with the Judge so busy, he needed three people,” said Winer.

While Winer did most of the writing, Stetson acted as day-to-day editor and strategist and Judge Lowy “provided the big picture,” according to Winer.

The article was finally published in February of this year.

“By putting this out there, we wanted to highlight some of these issues in a more efficient manner,” said Winer. “The hope for the article is that it will spark a conversation about some of these unanswered questions.”

Reported by Alia Wong

             Print  |