Amicus Curiae Brief Update—Diversity, Inclusion, and Confrontation: It All Matters

The American Academy of Forensic Sciences is a multidisciplinary membership organization. With 12 sections spanning multiple forensic specialties and 6,217 practitioners from around the globe ranging from students to retirees, we are a very diverse organization. The diversity of membership results in the diversity of people, ideas, opinions, and perspectives. When diversity is embraced by an organization, the organization is strengthened by broader and more adaptable perspectives. Those perspectives, when divergent, may often make it difficult to reach an agreement. When disagreement exists, organizations must exercise caution in handling the lack of agreement and diversity of perspectives to avoid division.

The AAFS Board of Directors was notified of a case scheduled to go before the U.S. Supreme Court on a grant of a writ of certiorari (Smith v. Arizona) due to a lower court's decision that it was constitutionally permissible for an expert to testify to their own independent opinion upon review of a non-testifying expert's analyses. The question presented to the U.S. Supreme Court as framed by the petitioner is, "Whether the Confrontation Clause of the Sixth Amendment permits the prosecution in a criminal trial to present testimony by a substitute expert conveying the testimonial statements of a non-testifying forensic analyst, on the grounds that (a) the testifying expert offers some independent opinion and the analyst's statements are offered not for their truth but to explain the expert's opinion, and (b) the defendant did not independently seek to subpoena the analyst."

The Sixth Amendment of the U.S. Constitution states, in relevant part, "In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him…" The U.S. Supreme Court has weighed in on the constitutional right to confrontation of witnesses in a line of confrontation clause cases: Crawford v. Washington (2004); Melendez-Diaz v. Massachusetts (2009); Bullcoming v. New Mexico (2011); Williams v. Illinois (2012). In a particularly forensic practitioner-friendly opinion, the Williams court, in a 5-4 decision, held that, "the admission of expert testimony about the results of DNA testing performed by a non-testifying analyst did not violate the Confrontation Clause." 

The decisions rendered in the line of confrontation clause cases have guided the state and appellate courts for nearly two decades. However, in granting certiorari to Petitioner Smith, the U.S. Supreme Court may decide to uphold the previous interpretations of the confrontation clause or pivot to a narrower, more restrictive interpretation. Due to the significance of the deliberation and the outcome, amicus curiae briefs will be submitted by interested parties on behalf of Petitioner Smith and the State of Arizona as the Respondent. As per Section 1.4.4.2.C. of the AAFS Policy and Procedure Manual (PPM), "on the rare occasion that a significant and broad issue of national or international implication to forensic science arises, the Academy may authorize the filing of an amicus curiae brief." The AAFS Board of Directors discussed this important issue and decided to include the membership in the discussion for two reasons. First, the PPM requires the Board to "request input from the members." Second, including the membership in this decision is important because any position taken by the AAFS on this issue has the potential to impact the entire membership; therefore, input from the membership matters. 

On November 1, 2023, the AAFS membership was notified of the pending case via an email blast and was asked to provide feedback. In particular, the membership was asked if it supported the AAFS participating in the amicus curiae brief with other forensic organizations in support of the state of Arizona's position regarding the constitutionality of an expert witness providing testimony based upon an independent review of work performed by another analyst. Members were asked to provide feedback via a short survey by November 13, 2023. The AAFS has over 6,200 members and the email blast was sent to every member with an active email account. A total of 152 responses were received, representing less than 2.5% of the total AAFS membership. Although the majority of responses (71%) indicated support for the state of Arizona's position and a desire for the AAFS to join, the relatively low number of responses received caused concern for the AAFS Board of Directors. Also concerning was the filing schedule. As per the information received after feedback was requested, December 20, 2023, was set as the deadline for the submission of amicus curiae briefs. We, as your chosen representatives, did not feel there was sufficient time to prepare a brief or to join a brief with other organizations and seek additional feedback from the membership to ensure the stated position aligned with the vision, mission, and values of the AAFS. After consideration of the feedback obtained from the membership and weeks of deliberation by the AAFS Board of Directors, on November 30, 2023, the difficult decision was made to withdraw the motion to join in the filing of an amicus curiae brief. Due to the diversity of perspectives inherent in our diverse membership, this decision may disappoint some and relieve others. However, I hope you understand decisions made by your Board of Directors are made in the best interest of the AAFS and forensic science. 

As an organization, we are strengthened by our diversity. We are strengthened by our differing views. We are strengthened by our efforts of inclusion and inclusivity. We are also strengthened by our ability to unite as one Academy to promote justice for all through forensic science. We may all agree that justice must extend to any party choosing to offer testimony of a witness. Where we may disagree is in answering the question, "Who is the witness?" This is the important constitutional question, which I hope will be addressed by the U.S. Supreme Court for the forensic science community because the answer to this question truly MATTERS!