Argument Preview: Melendez-Diaz v. Massachusetts
on Nov 8, 2008 at 4:54 pm
At 1 p.m. Monday, the Supreme Court will hear one hour of argument in Melendez-Diaz v. Massachusetts (07-591). Lyle has prepared the following preview. All briefs and documents filed in the case are available on ScotusWiki, available here. Stanford law professor Jeffrey L. Fisher will ague for Luis E. Melendez-Diaz. Massachusetts Attorney General Martha Coakley will argue for the commonwealth, and Lisa H. Schertler, assistant to the U.S. Solicitor General, will argue for the United States as amicus.
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Crime laboratory reports are key pieces of evidence in a large number of criminal trials. When they can be brought into a case, without live testimony from the forensic experts who prepared them, is before the Supreme Court in Melendez-Diaz v. Massachusetts (07-591). A basic issue in the case is whether a crime lab report is, itself, a form of testimony.
Background
After the Supreme Court revolutionized the Confrontation Clause of the Sixth Amendment, the 2004 case of Crawford v. Washington, a flurry of sequel cases began arriving at the Supreme Court. Crawford had laid down the sweeping new doctrine that the Clause would not allow the use, at trial, of earlier statements of a prosecution witness who could not take the stand unless those statements had previously been subject to cross-examination. The Court said the only measure of the reliability of what it called “testimonial statements” was confrontation of the witness. This cast aside the long-standing rule that, if such a prior statement was reliable, it could be admitted as evidence even if the witness would not be available to testify at the trial. What the Court declined to do in Crawford – spell out what “testimonial” meant in this context – has been at the center of the follow-up cases.
While the Court has provided some further guidance since 2004, one open issue that defense lawyers identified early was whether evidence in the form of crime laboratory reports was “testimonial” evidence. Crime labs, of course, analyze a wide array of materials that bear upon criminal guilt: the identification of drugs, the properties of biological evidence like hair, blood, urine and semen, the results of field tests of drunken drivers, ballistics tests, fingerprint identification, autopsy reports – the list is as long as a catalog of physical evidence would be. If a crime lab report is “testimonial,” it would come under Crawford, and a live witness would have to appear to be examined about it, or else it would be excluded. If it is not “testimonial,” it could be admitted by itself, however accusatory it might be.
Forty-four states and the District of Columbia permit courts to admit forensic examiners’ certificates to identify illegal drugs. Other states allow the use of certificates describing the results of biological evidence, autopsies, bullet and gun tests, and so on. The experts who prepared such reports or certificates are not called to testify, or to be cross-examined.
The Supreme Court did not show an immediate interest in crime lab reports after Crawford. It denied review, in fact, in sequel cases directly testing whether such reports were “testimonial” – one in 2006, and one in 2007 – even though it was told that “the most widespread subject of controversy” about Crawford‘s reach involved such evidence (professors’ amicus brief in Campbell v. North Dakota, 05-564, denied Jan. 22, 2007). A second appeal in 2007 (Missouri v. Marsh, 06-1699) ended in a plea bargain before the Court could act on it. Three weeks after that case was dismissed, the case of Melendez-Diaz v. Massachusetts was filed; it appeared on the docket Oct. 26, 2007.
The case involves Luis E. Melendez-Diaz of Boston. He was convicted of distributing and trafficking in crack cocaine. He had been arrested in the fall of 2001 after officers saw what they took to be a drug transaction outside a K-Mart store in the Dorchester section of Boston. At Melendez-Diaz’s trial, crime lab reports were admitted; they dealt with substances taken from one of the men arrested at the scene and from the back seat of a police cruiser in which two of the suspects had been riding. The trial judge told the jury that it could rely on the chemist’s reports as proof that the substance seized contained cocaine. The reports did not seek to defend the methodology used, nor did they break out the components of tested substances.
In Massachusetts, state court precedents going back to 1923 had held that a chemist’s lab report analyzing liquor or drugs was merely a record of “primary fact, with no judgment or discretion” by the chemist, and were admitted only as “prima facie evidence in lieu of live testimony. Thus, admission of such a report, the precedents held, did not violate an accused individual’s right of confrontation. The state’s Supreme Judicial Court reexamined the issue in 2005 (Commonwealth v. Verde), in the wake of Crawford, and ruled that a crime lab report on an illegal drug was “akin to a business record and the confrontation clause is not implicated by this type of evidence.”
In Melendez-Diaz’s case, the Massachusetts Appeals Court applied the Verde precedent, and rejected the Crawford-based challenge to the drug analysis certificates admitted at trial. The state Supreme Judicial Court denied review, and Melendez-Diaz’s counsel appealed to the Supreme Court.
Petition for Certiorari
After Melendez-Diaz’s petition was filed, the commonwealth waived its right to reply. The Court, however, requested a response on Dec. 6, 2007, and granted review on March 17.
“This case,” he petition began, “presents a pressing issue concerning the administration of criminal justice across the country, and over which the federal and state courts are openly and deeply divided: whether state forensic laboratory reports prepared for use in criminal prosecutions are ‘testimonial’ evidence, and thus subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington…”: Since Crawford, it added, “state supreme courts and the federal courts of appeals have become deeply divided.” The courts that allow such evidence in lieu of live testimony, on the premise that they are not “testimonial,” have done so, the appeal said, based on conclusions that they are “business records,” that they are reliable because based on recognized scientific testing, or that they are merely contemporaneous recordings of observable events.
Noting the “central evidentiary role” that crime lab reports play in many criminal trials, the petition said: “Prosecutions that lack direct evidence identifying the perpetrator depend heavily on scientific evaluations of circumstantial evidence. Forensic analyses, of course, also are at the center of many drug prosecutions, such as the one here. And given the onward march of technology, criminal prosecutions in the future promise to rely even more on scientific analysis. The new practice of prosecutorial DNA testing is only a glimpse of what is likely to come.” But, the appeal added, recent reports have shown that flawed science contributes to a large proportion of wrongful convictions. Untested lab reports, therefore, raise a significant threat that innocent individuals will be found guilty, the petition contended.
Replying, lawyers for Massachusetts contended that the petition had exaggerated “the scope and depth of the conflict that exists.” The majority of courts, like the state court in Melendez-Diaz’s case, have followed “a case-by-case approach to determining whether a particular statement is testimonial or nontestimonial. Only a handful of courts have adopted the bright-line rule urged by petitioner, which would render testimonial – and, thus, subject to the Confrontation Clause – all laboratory reports prepared for use at trial. This interpretation of the Confrontation Clause would impose enormous burdens in countless criminal cases by needlessly requiring live testimony from laboratory technicians who are unlikely to have any independent recollection of one – out of the thousands – of tests they routinely perform.”
Merits Briefs
Massachusetts’ resistance to applying Crawford to crime lab reports, such as the drug-content certificates involved in this case, has drawn the significant support of the federal government. In September, the Solicitor General’s office filed its brief supporting the commonwealth, and offered a handful of reasons why the Court should rule that these reports are not “testimonial.”
The government brief said that, until now at least, the Court has never applied that Confrontation Clause analysis to anyone other than statements made to police by eyewitnesses to a crime. The witnesses in Melendez-Diaz’s case, it noted, were the police officers who saw the encounter, and they testified at trial and were cross-examined.
Because this case involves something else, the Solicitor’s brief argued, the Court should examine several characteristics of the lab reports directly at issue. Those records fit the traditional concept of official, public records, and thus are categorically beyond Crawford‘s reach, it said. The records here were created under a public duty that the chemists in the state crime lab were simply carrying out, it added.
But, the brief went on, the Court could look at the drug certificates used against Melendez-Diaz, and see them as only “the output of a scientific instrument,” not of a human witness. A lab instrument, the brief said, does not have the human traits that are usually involving in giving testimony. “The ‘witnesses’ to whom the Confrontation Clause refers…must be ‘human witnesses,’ ” it contended. Further, it said, the humans who do operate lab instruments, while certifying that the machine was operated properly and produced specific test results, are not thereby giving testimony.
Melendez-Diaz’s merits brief dwelled on the argument that chemists’ crime lab reports, often prepared in response to police requests, are “expressly prepared for law enforcement in aid of criminal investigations.” And it argued that such reports are not, as Masschusetts courts assumed, “purely objective.” Reports like these “reflect complicated, subjective interpretations of imprecise scientific tests.” They thus should not be allowed to escape the kind of testing that can only come from cross-examining the forensic examiners who prepared them, the brief contended.
Massachusetts’ merits brief sought to defend its description of crime lab reports as “not accusatory,” arguing that they “merely report the results of objective, and largely mechanical, scientific testing performed by a state laboratory as required by law.” Moreover, even if the Court were to treat such reports as testimonial, the commonwealth brief contended, Melendez-Diaz’s lawyers had “multiple opportunities to challenge the validity of the [drug] certificates and cross-examine the analysts, but strategically elected not to do so.” Requiring the attendance of experts as witnesses, under compulsory process, the brief said, provides a sufficient opportunity for defense lawyers to challenge lab test results.
The commonwealth is backed by 35 states and the District of Columbia; they argued that treating drug test results, in particular, as testimonial under the Confrontation Clause would add a major burden for state crime labs, which have seen large annual increases in their workloads as “the war on drugs” produces millions of tests analyzing the drugs seized. The states’ brief noted that the Supreme Court has required confrontation in 19 cases over the years, and not one of them involved evidence in a lab report.
Melendez-Diaz’s appeal is supported by criminal defense lawyers, law professors and the National Innocence Network, contending that crime lab evidence is not as solid as is often supposed, and thus regularly poses risks of supporting wrongful convictions. The Innocence Network brief, for example, sought to challenge “the myth of infallible forensic evidence” — “a myth that finds no basis in the reality of state forensic practices throughout the country.” A group of law professors sought in their brief to dispel the fears of a flood of courtroom confrontations over lab reports, arguing that “only a tiny fraction of criminal cases is likely to be affected.”
The Court has set oral argument for Monday, Nov. 10, with the Solicitor General’s office sharing some of Massachusetts’ time.
Analysis
Much of the Court’s analysis in the Crawford decision was keyed to history – what the concept of confrontation meant in the Nation’s founding years. In Melendez-Diaz, the Court will have to move into the modern era to determine whether there is a current meaning for “testimonial” evidence that would embrace scientific testing totally unknown in 1791 when the Sixth Amendment was put into the Constitution. The Court, therefore, may have to speak more broadly in defining “testimonial” than it was willing to do in Crawford, or has been prepared to do since. It probably will not be sufficient to continue the case-by-case, incremental approach the Court has preferred to apply so far.
An easy path for the Court, if it wants to exclude crime lab reports from confrontation requirements, would be to embrace the Solicitor General’s notion that the Clause is only about human witnesses, and crime lab reports are simply output from instruments. But that may not be quite as simple as the Solicitor’s brief suggests: the ones certifying the contents of the reports are, of course, humans – the lab technicians or forensic scientists. Can they be asked anything, through cross-examination, that would tend to undermine the conclusion that the test proves a crime was committed? Defense lawyers, of course, believe that their questioning could do just that. The reports are produced in anticipation of their use to prove guilt; they are not forensically neutral.
Defense lawyers contend that a crime lab report is like a sworn affidavit. If the Court were to agree, that could go a considerable way toward establishing that the technician whose name is on the report must show up at trial to defend the assertions the report makes.
If the Court were to persuaded that a ruling in Melendez-Diaz’s favor would fundamentally change the nature of trials in a vast number of criminal cases where physical evidence tested in crime labs is offered, thus perhaps overwhelming state laboratories, it might well hesitate. On the other hand, if it were to conclude that lab analyses are anything but error-free, it could then be more sympathetic to the notion that cross-examination of the chemists is a necessary safeguard. That argument, though, might be vulnerable to the claim that defense lawyers have open to them the option of compelling the attendance at trial of forensic chemists.
The Court is expected to decide the case before recessing for the summer.
