TheAgitator.com
Sotomayor’s First Big Case May Be on the Right to Confront Expert Witnesses
Thursday, July 16th, 2009A few weks ago, I posted on the Supreme Court’s decision in the Melendez-Diaz case, in which the Court found that the Sixth Amendment’s confrontation clause gives criminal defendants the right to cross examine forensic experts who issue lab reports that the state admits into evidence.
The Washington Post reports this week that the decision will have broad-reaching rammifications:
The predictions are dire. In New York, murderers could walk free. In Fairfax County, drunken driving cases could be dismissed. And nationwide, thousands of drug cases might have to be thrown out of court annually.
Legal experts and prosecutors are concerned about the results of last month’s U.S. Supreme Court ruling that requires lab analysts to be in court to testify about their tests. Lab sheets that identify a substance as a narcotic or breath-test printouts describing a suspect’s blood-alcohol level are no longer sufficient evidence, the court ruled. A person must be in court to talk about the test results…
Crime labs that test drug and DNA samples face huge backlogs even when scientists and analysts do not have to testify. If the workers are taken out of the labs to appear in court, those backlogs will grow.
In drug cases, more than 1.5 million samples are analyzed by state and local labs each year, resulting in more than 350,000 felony convictions, national statistics show. “Even if only 5 percent of drug cases culminate in trials, the burden on the states is oppressive,” a group of state attorneys general wrote in a brief for the case.
The percentage of cases going to trial could well go up if defense lawyers think that bringing lab analysts to court will help their cases. Lawyers also could go to trial with the hope of a dismissal if the analyst cannot be there.
Note that the objections here are logistical, not legal. Justice Anthony Kennedy’s sharply-worded dissent in the case took a similar line, arguing that the decision “threatens to disrupt forensic investigations across the country and to put prosecutions nationwide at risk of dismissal . . . when a particular laboratory technician . . . simply does not or cannot appear.”
These objections seem awfully utilitarian. We’re supposed to ignore a fundamental component of a fair trial that’s explicitly protected in the Constitution—the right to confront one’s accusers—because doing so would prove inconvenient to the state? (Note too that the main reason for the backlog at state crime labs is the drug war.)
Just given my own reporting on forensics over the last few years, I find it mind-boggling that there are people who feel a court should be able to deny a defendant the opportunity to cross-examine, for example, the medical examiner who performed the autopsy in a murder case, or the lab technician who claims to have made a fingerprint match.
Unfortunately, the decision my already be in peril. Before its most recent recess, the Court agreed to hear Briscoe, et al., v. Virginia (PDF) a case that raises many of the same issues as Melendez-Diaz. Justice Souter voted with the unconventional majority in the 5-4 decision. His likely replacement, Sonia Sotomayor, is a former prosecutor whose record suggests she’ll be quite a bit more law-and-order than Souter. Lyle Denniston at SCOTUSBlog speculates that the minority in Melendez-Diaz may have agreed to hear the Virginia case knowing that they’d have an ally in Sotomayor, suggesting a limitation or even reversal of the decision.
Suprisingly, the case did come up yesterday while Sotomayor was questioned by Sen. Amy Klobuchar (D-Minn.), also a former prosecutor. Klobuchar was critical of Melendez-Diaz, and invited Sotomayor to respond. Not surprisingly, Sotomayor’s response was vague:
It’s always difficult to deal with people’s disappointments about cases, particularly when they have personal experiences and have their own sense of the impact of a case.
I was a former prosecutor. And it’s difficult proving cases as it is. Calling more witnesses adds some burdens to the process.
But, at the end, that case is a decided case. And so its holding now is its holding, and that’s what guides the court in the future on similar issues to the extent there can be some.
As I said, I do recognize that there can be problems, as a former prosecutor, but that also can’t compel a result. And all of those issues have to be looked at in the context of the court’s evaluation of the case and the judge’s view of what the law permits and doesn’t permit.
The American Spectator’s John Tabin suggests Sotomayor’s answer hints that she would not use the Virginia case to overturn Melendez-Diaz. I agree, although I don’t think an outright reversal was in the cards in the first place. A reversal of a decision issued in the preceding term would be unseemly. The more likley possibility is that the Virginia case will limit the scope of Melendez-Diaz. Given how far apart the majority and minority were in the case, and that without Souter the Court stands 4-4 on this issue, the severity of that limitation may be entirely up to Sotomayor.
Maybe if the state stopped prosecuting every person they find with a joint there wouldn’t be such a backlog of people in the labs testing the material.
Ah, but then, what about the children, right?
“Even if only 5 percent of drug cases culminate in trials, the burden on the states is oppressive,” a group of state attorneys general wrote in a brief for the case.”
Design flaw, eh? Sounds more like an intended feature to me.
The burden on the state is supposed to be oppressive. You’d think these guys never heard of the idea that the burden of proof is on the prosecution.
Well, you know, if you are arrested, you must be guilty or have overwhelming evidence to say so. It should be just a matter of procedure to convict a significant portion of our population.
/sarcasm
Sounds like a good ruling to me!
MDGuy,
That’s cause it’s not anymore. In our legal system your guilty until proven innocent. That’s the reality now, although lip service is still paid to the other.
#5 | ktc2 | July 16th, 2009 at 2:46 pm
MDGuy,
That’s cause it’s not anymore. In our legal system your guilty until proven innocent. That’s the reality now, although lip service is still paid to the other.
Sounds about right. And in the cases that degenerate into a media feeding frenzy, even the lip service gets the heave-ho.
“The burden on the states is oppressive”. I love it. They have no problem affording cages, guards, and food for all those people, but would be just oppressively burdened by having to produce a lab worker for a few hours for some 5% of those people they want to throw in their cages.
On second thought, given the state of prison work programs, prisons are probably a revenue source on the bottom line, rather than a net expense. Now there’s an interesting starting point for a conspiracy theory on drug war motivations…
I know it has only been a few weeks, but has there been any evidence whatsoever that the doomsday scenario being presented is coming to pass? As noted in the older post, many states already had this rule, and in many cases there probably isn’t much to be gained for the defense to call in the lab tech.
Oh, I just love it when the state whines about the burden of doing its job. It just doesn’t want to be bothered with a fair fight. That would be work.
I agree with most here, the burden of proof should always be on the prosecution and if that means calling up a lab tech to testify so be it. I would much rather burden him for the sake of proving my innocence than him burden me with only a piece of paper as “proof”. What if that lab tech was doing something stupid at his desk that could have skewed the results? I have a right to know.
I also agree that getting rid of this stupid “war on drugs” would unburden our system significantly. If we can’t tell a woman what to do with her reproductive system how can we tell a drug addict what to do with his brain or veins?
Here’s another question; do we have any figures comparing states that recognized this right with states that didn’t before the ruling?I’m curious if there were any significant difference in drug/alcohol conviction rates. I’m betting there weren’t but if anyone has a link, thanks.
Last time I checked, Sotomayor wasn’t on the Supreme Court. Radley, if you are to play what-ifs, you should put it in writing. Otherwise your writing is, as always, thought provoking and anti-corrupt-deck-stacked-against-you-by-the-state-thugs, which is one reason why I visit your site every day.
s it stands now in many places,if the box says .08 your deemed a threat to society.In Ohio you can not contest the result.You can be pulled over for almost any reason and asked if you’ve been drinking or if you have any drugs in your car.If most D.U.I arrests wentn to trial I’m sure arrests would be reserved for the truly dangerous or those who did actual harm.
I haven’t read the case but I’m not sure how a scientific report can get into evidence at all without some witness at least verifying that the report is what it claims to be and that he prepared it.
In the cases I handle I know that drug screen results can’t come in to evidence just because they look like official reports and have my client’s name on them and are on letterhead. I have to have a witness testify that they work at the lab where the results are produced and yada yada yada…. Are states carving out exceptions so that a prosecutor merely has to put forward a sheet of paper that says .08 and poof it’s in evidence?
Oh well. While we’re on the topic of utltiy arguments, what’s with having all these police always testifying!? Don’t they know that makes our streets less safe!!?? God! Why can’t police reports just come into evidence so that we can save time and money…. and THE CHILDREN!!!
duiblog.com and testilying
*ahem*
147 cases by closed Detroit crime lab need tests
Burden of proof and all that stuff.
BamBam,
Sotomayor is as good as being confirmed by the senate. She would have to do something monumentally stupid at this point not to be appointed.
Only the Huffington Post would feel that it’s legitimate to quote anonymous sources authoritatively. Reasonable people know that anonymous sources are worth their reputation.
J sub D posts from Michigan, with the fun in Detroit. Confronting expert witnesses is already, to the best of my knowledge, standard procedure here. If you have a drunk or drugged driving trial, you have the right to call the toxicologist from the State Police lab in Lansing (which is taking those Detroit cases).
Michigan has an elegant solution for those toxicologists: interactive video testimony. Several courts are wired for live video conferencing, so the toxicologists testify from a room in the lab. So far, there have not been complaints about whether this “counts” as confronting them.
(For those of you in smaller states: you can drive 8 hours from Lansing and still be in Michigan. That’s a long time to testify in a case or two.)
Fucking trials. All they do is let the guilty get off the hook and slow down the process. I’m surprised the government hasn’t dispensed with them altogether. Oops. I forgot. They have been doing that for some “detainees”, haven’t they?
Whoops! I meant that for t’other thread. Sorry!
There’s something about this I don’t get. Lab people are not accusers. The tech who discovers that the DNA found at the crime scene matches the DNA of the defendant is not accusing him of anything, simply stating findings. It’s not like a witness who testifies that he saw the defendant do it.
#22: NelsonW,
They’re witnesses for the prosecution. as such, that places them under the 6th amendment just as any witness would be. The exact wording in the constitution is “to be confronted with the witnesses against him”
Just like an eyewitness that ’saw the crime’, and is subject to cross examination, so too are those that bring witness by analysis. Any aspect of their procedures or science may be questioned or shown lax through cross examination. If their procedures are strong, and their science long… then their testimony will hold. But if the defense can show lapses, or that the science is crap… that will come out in cross examination.
In view of prosecution’s propensity to use of junk science to destroy someone’s life, I would say that the defense should absolutely have every opportunity to question the validity of evidence used at trial.
The issue isn’t about the cost of the process. It’s about punishing the innocent and letting the guilty go free (by convicting the wrong guy). At every stage in the process, the cards are heavily stacked in favor of the state and that’s because the state sets the rules. The idea that they need to exclude examination of forensic experts to streamline the process isn’t credible. The fact that they manage to successfully prosecute and lock up such a large proportion of the population shows pretty clearly that the process is anything but over-burdened.
Also, I might add that the way to unburden the state is not to streamline the process, but to drastically reduce the number of prosecutable offenses. The fact that the public sees no contradiction in calling this the “land of the free” while locking up so many of its citizens shows the dimensions of the abyss that separates patriotic sentiment and reality.
When SCOTUS rules that someone with a Public Defender has the rights to the same resources as the Prosecutor then they will have done something. How many Public Defenders have the knowledge to know what questions to ask of a lab tech? If the Prosecution is going to enter a lab report into evidence, the Defendant should automatically have the right to consult the same type of expert, otherwise the report connot be entered into evidence.
Nando @#1
ha, the children are locked up too, by the truck load.
[...] Agitator – "Sotomayor’s First Big Case May Be on the Right to Confront Expert Witnesses" The New Clarion – "The Sotomayor Hearings" QandO – "Sotomayor – The New [...]