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Looking back at predictions in Melendez-Diaz v. Massachusetts

Last spring the Supreme Judicial Court of Massachusetts dismissed approximately 20,000 wrongful convictions involving Annie Dookhan, a chemist in a Massachusetts crime lab. The American Civil Liberties Union called it “the single largest dismissal of wrongful convictions in the nation’s history.” Dookhan had certified to the presence of illegal drugs in samples seized from defendants and presented as evidence in trial without properly testing the substances (a process known as “dry-labbing”). Although some have argued that Dookhan’s dry-labbing demonstrates the necessity of the Supreme Court’s 2009 decision in Melendez-Diaz v. Massachusetts, others suggest that the scandal reveals problems with the decision – because it went either too far or not far enough. The Dookhan case offers an occasion to review predictions made by the authors of the majority and dissenting opinions in Melendez-Diaz about how the case would affect future drug prosecutions and trials.

The Melendez-Diaz decision

In 2001, police officers arrested Luis Melendez-Diaz and two other men and drove them to a police station after observing a possible drug transaction. The officers later found in their cruiser a plastic bag containing 19 smaller bags of what appeared to be illegal drugs. The William A. Hinton State Laboratory Institute – which later employed Dookhan – produced three “certificates of analysis” stating that the bags contained cocaine. The judge allowed the prosecution to introduce the bags and certificates as evidence at trial despite Melendez-Diaz’s objection, which was based on the Supreme Court’s 2004 ruling in Crawford v. Washington.

In Crawford, Justice Antonin Scalia had written a decision in favor of a defendant convicted after a trial in which prosecutors played a prerecorded statement by a witness who did not appear for cross-examination. The Sixth Amendment provides that “the accused shall enjoy the right … to be confronted with the witnesses against him.” Overruling a prior case that had held that prosecutors could introduce outside testimony without presenting the witness for cross-examination if the testimony was “reliable,” the court in Crawford found that a “witness’s testimony against a defendant is … inadmissible [under the Sixth Amendment] unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination.”

In ruling on Melendez-Diaz’s claim, the court found that certificates about samples used as evidence in trial were “testimonial” statements, meaning the chemists who prepared them are witnesses whom defendants have a right to cross-examine under the Sixth Amendment. Writing for five justices, Scalia described the decision as a “rather straight-forward application of our holding in Crawford.”

Justice Anthony Kennedy wrote a dissent outlining the dire consequences he feared might result from the ruling. Kennedy argued that “analysts responsible for testing the drugs at issue in those cases now bear a crushing burden.” Foreseeing a lag in the criminal-justice system as trials ground to a halt waiting for analysts who might never appear, Kennedy worried that the holding “threatens to disrupt if not end many prosecutions where guilt is clear but a newly found formalism now holds sway.” In response to Scalia’s argument that the small number of cases that go to trial would minimize the disruptive effects of the decision, Kennedy pointed out that “what the Court does not consider is how its holding will alter these statistics.” At bottom, Kennedy saw cross-examination as useless. “It is not plausible,” he suggested, “that a laboratory analyst will retract his or her prior conclusion upon catching sight of the defendant.”

Kennedy’s concerns did not sway Scalia, who wrote that “the sky will not fall after today’s decision.” Less confident than Kennedy in the criminal-justice system, Scalia asserted: “Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well. Serious deficiencies have been found in the forensic evidence used in criminal trials.” Scalia hypothesized: “Like the eyewitness who has fabricated his account to the police, the analyst who provides false results may, under oath in open court, reconsider his false testimony. And, of course, the prospect of confrontation will deter fraudulent analysis in the first place.”

Scalia proposed that states could permissibly adopt notice-and-demand procedures, in which prosecutors give “notice” to the defendant of an intent to introduce a lab certificate and the defendant can choose to “demand” the analyst’s physical presence for cross-examination. Noting that some states already followed such procedures, Scalia argued that “there is no evidence that the criminal justice system has ground to a halt in the States that, one way or another, empower a defendant to insist upon the analyst’s appearance at trial.” As Scalia explained, “it is unlikely that defense counsel will insist on live testimony whose effect will be merely to highlight rather than cast doubt upon the forensic analysis.”

Melendez-Diaz and Annie Dookhan

Reactions to Dookhan’s dry-labbing as it reflects on Melendez-Diaz are mixed. To some, Dookhan’s actions demonstrate the necessity of the decision as a procedural antidote to possibly unreliable forensic evidence. As Jeffrey Fisher, who argued for Melendez-Diaz before the court, commented: “So often the court makes decisions based on empirical assumptions, but it’s rare that we have the real world tell us the answer. Now we have the exact lab in that case revealed to be horrible.” And as Kimberly Atkins reported in 2012 for Massachusetts Lawyers Weekly, “[a]ttorneys say the Dookhan fallout brings into clear focus the reasoning behind the Supreme Court’s 2009 ruling.”

Others conclude that the Dookhan fiasco demonstrates weaknesses in the court’s decision. Scalia expressed concern in his opinion that absent the safeguard of cross-examination, “a forensic analyst responding to a request from a law enforcement official may feel pressure – or have an incentive – to alter the evidence in a manner favorable to the prosecution.” Seth-Thomas Aitken, who worked as a prosecutor in Massachusetts after the decision’s release, wrote in a 2012 op-ed for Massachusetts Lawyers Weekly: “Ironically, the decision had an opposite effect. … Melendez-Diaz took scientists – objective and solitary – and made them part of the prosecution team. It cultivated the kind of camaraderie between prosecutor and chemist that the court meant to eliminate.” Prosecutors went from not having relationships with analysts to having “routine and frequent communication” for trial coordination.

Sean Driscoll – a former police officer and current assistant U.S. attorney – wrote in 2014 in the Arizona Law Review while clerking for Judge Richard Posner that Dookhan “highlights the critical shortcoming of the Melendez-Diaz line of cases.” Driscoll noted that Dookhan testified approximately 150 times as a result of Melendez-Diaz before her arrest, but “despite repeated cross-examination, defense attorneys failed to uncover Dookhan’s fraudulent tests.” Driscoll argued that this failure – which he acknowledged may also rest with “jurors afford[ing] great deference to scientific testimony” – “upends one of the pillars of Melendez-Diaz”: the belief that cross-examination will dissuade analysts from giving false testimony. Driscoll provided some evidence suggesting that “Justice Kennedy was correct to point out the futility of cross-examination in nearly all forensic testing cases,” but did not endorse Kennedy’s position. Instead, Driscoll proposed that the Supreme Court should find a Sixth Amendment right to retesting of evidence, with cross-examination of forensic analysts only after the defense has shown that the exercise is important to the defendant’s case.

Effects of the decision in practice

In 2013, four years after Melendez-Diaz, the Justice Department established a National Commission of Forensic Science “to enhance the practice and improve the reliability of forensic science.” Perhaps surprisingly, the commission devoted little attention to the issues raised by Melendez-Diaz. Before the commission’s charter expired on April 23, 2017, it had produced just one “view” on the topic of Melendez-Diaz, proposing that “jurisdictions should adopt notice-and-demand provisions” for securing the presence of analysts at trial. One member of the commission, Matthew Redle – a prosecutor in Wyoming and the chair of the Criminal Justice Section of the American Bar Association – said difficulty in implementing Melendez-Diaz “hardly came up” before the commission. “If Melendez-Diaz was causing problems on the local level, I expect that we would have heard more about it,” Redle surmised. “People really have adapted to it and laboratories have found their own solutions.”

Looking back, Aitken, the Massachusetts prosecutor, described the immediate aftermath of Melendez-Diaz in Massachusetts as “chaos.” He “absolutely” saw defense counsel rejecting plea bargains and insisting on trials as a result of the decision. In time, though, he recalled, defense counsel began to stipulate to the admissibility of evidence more frequently as it became clear that analysts would appear in court to testify. There was “never a time” Aitken went forward with trial and didn’t have the analyst show up. To him this suggests that Melendez-Diaz primarily has “strengthened the defense’s hand with plea bargains,” not because of increased opportunities for cross-examination.

John Hayes, a 28-year public defender in Massachusetts, has observed trends similar to those described by Aitken. “Typically prosecutors will be able to present the evidence,” Hayes said, but Melendez-Diaz has helped defense attorneys negotiate pleas. If prosecutors suspect that they may have to produce the analyst, they “might be easier to deal with.” As for Kennedy’s concern about plea statistics, Hayes said, “I don’t think plea numbers are going down for this reason. They’re not going down at all.”

Two empirical studies

At least two scholars have attempted to assess the practical impact of Melendez-Diaz through empirical studies. For her 2015 dissertation, Catherine Bonventre, now an assistant professor of criminal justice at Guilford College, interviewed 18 crime laboratory personnel from around the country who were employed by 15 agencies under a mix of administrative structures (law-enforcement agencies, public-safety agencies, etc.). After detailing the various ways in which labs instituted changes in the wake of Melendez-Diaz, Bonventre concluded that “[t]he participants’ perceptions of the impact of Melendez-Diaz on their laboratories fell mainly in the range of none to minimal.” Bonventre further noticed: “For some participants, the increase in subpoenas for additional analysts was experienced as an initial impact that subsequently waned. Perhaps this was due to prosecutors or defense attorneys figuring out how to implement the decision on their end.”

Richard Friedman, a University of Michigan law professor who submitted an amicus brief for the defendant in Melendez-Diaz, published results of one study in 2012. Surveying 154 drug trials, Friedman found that 116 lab results were presented and 71 lab witnesses testified. Calculating an average of 0.55 lab witnesses per test, Friedman suggested that “despite the fears expressed by the Melendez-Diaz dissenters—many Michigan defendants stipulate to the admissibility of forensic lab evidence without the need for the prosecution to bring in live testimony.” He concluded:

States that have conscientiously protected the accused’s confrontation rights—allowing him to demand that a lab witness must testify subject to confrontation if she has made a testimonial statement that is conveyed to the trier of fact—have not found the burden intolerable.

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Although it is not entirely comprehensive, this review suggests that time has borne out some of both Scalia’s and Kennedy’s predictions and revealed that others were unfounded. Experience in Massachusetts (and Virginia, with reports in Virginia Lawyers Weekly by Alan Cooper from late 2009 and early 2011) suggests that Melendez-Diaz triggered a difficult period for state criminal-justice systems, after which the burden lessened as defense counsel, prosecutors, and laboratories adjusted to the decision.

This post has been clarified to reflect that although the judgment in Crawford was unanimous, two justices did not join Scalia’s written decision; they would have ruled for the defendant on a different basis.

Recommended Citation: Andrew Hamm, Looking back at predictions in Melendez-Diaz v. Massachusetts, SCOTUSblog (Sep. 7, 2017, 10:33 AM),