In Crawford v. Washington, the Supreme Court radically transformed Confrontation Clause doctrine. Immediately after Crawford, commentators predicted dire consequences for criminal prosecutions. These predictions have been renewed after each refinement of Crawford’s doctrine. So far, however, the sky has not fallen, because prosecutors and courts have managed to reconcile Crawford’s robust confrontation rights with the practical imperatives of criminal prosecution.
This Essay argues that the Court’s recent decision in Bullcoming v. New Mexico threatens the uneasy balance between prosecutorial needs and the Crawford line. Specifically, Bullcoming could be used to exclude DNA database evidence in prosecuting cold cases. DNA evidence has been used in criminal prosecutions for only a few decades, but it has revolutionized criminal justice during that time. DNA evidence has been particularly important for prosecuting rape cases, which historically have low conviction rates. Prosecutors should therefore be concerned that they might lose an essential tool for prosecuting rape cases and seeking justice for victims. Defense attorneys have a stake, too. When prosecutors lose access to DNA evidence, they are more likely to turn to less reliable eyewitness testimony and circumstantial evidence.
I argue that state legislatures and Congress can ensure that DNA evidence is available in cold-case prosecutions while simultaneously respecting defendants’ post-Crawford confrontation rights. Specifically, both state and federal policy makers should alter rules of evidence to include decades-old DNA database evidence under ancient document exceptions to hearsay rules.