A new test of the opportunity for accused individuals to challenge crime laboratory reports used against them at trial reached the Supreme Court on Friday, with arguments that lower courts are growing even more deeply divided over the underlying constitutioanl issue. That issue is whether the right to confront one’s accusers, under the Sixth Amendment, gives a defendant a right to bar a crime lab report from trial if the scientist or analyst who wrote it does not take the stand. Only live testimony by the forensic examiner, the petition contends, will satisfy the Sixth Amendment.

The petition in Melendez-Dias v. Massachusetts can be found here, and the appendix containing the lower court opinion can be found here; a docket number has not yet been assigned. It raises this question: “Whether a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is ‘testimonial’ evidence subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington.”

Under the Crawford decision, in 2004, the Court ruled that out-of-court statements that amount to “testimony” cannot be used as criminal evidence, if not previously subjected to cross-examination and if the person making the statement cannot be at the trial. The Court, however, did not spell out just when out-of-court statements would be found to be “testimonial.” It has been working that out in later cases, one at a time.

The Court has shown some interest in the issue, asking for a response last Term in the case of Campbell v. North Dakota (06-564). The appeal in that case drew the support of the National Association of Criminal Defense Lawyers, the Innocence Project, and various public defenders. The case, however, may have had some flaws in it as a vehicle for review; the Court refused on Jan. 22 of this year to hear it. The Court was preparing to act this Term on an appeal by the state of Missouri raising the issue (Missouri v. March, 06-1699), but the parties dismissed that case, based on a plea bargain, before the Court could act.

The petition filed Friday argues that the Crawford decision raises new suspicions about what had become a growing practice at the state level. Many states, it says, have been exempting crime lab reports from the reach of the Sixth Amendment “by labeling them as ‘business records’ or ‘public records.’ ” Legislatures or courts specifically allowed those items to be put in evidence by prosecutors, in lieu of live testimony by the analyst who prepared them, the petition notes. That practice grew up before Crawford, but after the Supreme Court’s 1980 ruling in Ohio v. Roberts — a decision that narrowed Confrontation Clause protection, but was cast aside by the sweeping ruling in Crawford.

The new case comes from Massachusetts, where state law requires that forensic examiners must analyze evidence at the request of police, with the results “to be used for the enforcement of law.” The analyst’s report may be introduced at trial as a substitute for live testimony. A state court, quoted in the petition, said in 2005 that the aim of this approach “is to reduce court delays and the inconvenience of having the analyst called as a witness in each case.”

That is what happened in the case of Luis E. Melendez-Dias. who was charged with distributing and trafficking in crack cocaine after his arrest after officers observed what they took to be drug dealing outside a K-Mart store in Dorchester, an area of Boston. At his trial, police put in evidence crime lab reports about substances taken from one of the men arrested and from the back seat of a police cruiser in which two of the suspects had been riding. The jury was instructed that it could rely only on the chemist’s reports as proof that the substance seized contained cocaine; the reports did not defend their methodology, nor do they break out the components of tested substances.

Melendez-Dias’ defense lawyer, specifically relying upon the Crawford decision, objected to the reports as evidence if the analysts were not called to testify in person. The Massachusetts Appeals Court upheld this ruling, relying upon a precedent of the Massachusetts Supreme Judicial Court that such reports are not testimonial in nature.

Melendez-Dias was convicted and sentenced to three years in prison plus three years on probation.

His appeal to the Supreme Court argues that federal apeals court and state high courts “are now divided six-to-five over whether state forensic laboratory reports prepared for use in criminal prosuections are testimonial.” Urging the Court to resolve the conflict, the petition notes that “forensic reports are an integral part of a large number of criminal prosecutions. Exempting them from the rigors of the adversarial process poses a significant threat of wrongful convictions.”

When a crime lab report specifically is “made for prosecutorial purpose,” the appeal contends, it is “quintessentially testimonial.”

The appeal says that 44 states and Washington, D.C., now permit courts to admit forensic chemists’ reports to establish that seized materials are illegal drugs. A number of states also allow the admission of a wide array of other chemical lab reports, such as the results of DNA testing and fingerprint ID.

Although the Court has passed up cases raising the issue recently, the new petition contends that the Melendez-Diaz case reaches the Justices without any procedural complications, and is on direct review from a state court. The constitutional issue, it says, was clearly raised in the state courts.

The Court will act on the case after Massachusetts has a chance to respond.

(DISCLOSURE: Although lawyers from the firms of Akin Gump and Howe & Russell are on the petition, the author of this post is not affiliated with any law practice and writes independently of the firms’ legal activity.)