Wednesday, July 15, 2009
Courts - Impact of the crime lab testimony decision [Updated]
The Washington Post today has an editorial on the impact of the June 25th SCOTUS decision in the case of Melendez-Diaz v. Mass. The headline is: "Avoiding Paralysis in Court: Virginia and other states should move swiftly to surmount a new hurdle to prosecutions."
A SUPREME Court decision last month involving crime lab reports is threatening to play havoc with criminal trials around the country, especially in drug cases. The justices ruled that lab reports -- for example, analyzing blood samples or cocaine -- cannot be introduced as evidence unless the analysts make themselves available to appear in court to vouch for the reports' accuracy and to submit to cross-examination. In some (though not all) states, the effect of the ruling may be to paralyze crime labs, which already face enormous backlogs and budget cuts. If lab analysts have retired or cannot make it to court, or if labs are overwhelmed by requests for analysts to testify, district attorneys in some places say they could be forced to drop prosecutions of violent crimes, possibly including rape and murder, as well as cases involving drugs and drunken driving.The ILB has had a long list of entries about Menendez.
The court's 5-4 decision was grounded in the Sixth Amendment guarantee that criminal defendants may confront opposing witnesses. It followed reports of shoddy work and tainted or fraudulent evidence from some crime labs. Writing for the majority, Justice Antonin Scalia acknowledged that the ruling may cause new burdens for prosecutors but predicted that "the sky will not fall." Justice Anthony M. Kennedy, writing for the four dissenters, predicted that criminals would walk free "on the most technical grounds" as a result of the decision.
Whatever the merits of each side's arguments, the important thing now is that states move quickly to ensure that cases involving serious crimes are not thrown out. Locally, the effects look manageable in Maryland, where lab analysts testify routinely in many jurisdictions; they look less so in Virginia, where The Post's Tom Jackman reports today that at least five drunken driving cases in Fairfax and Prince William counties have been thrown out after defense lawyers challenged the evidence based on the Supreme Court ruling. Prosecutors in Fairfax and Loudoun counties, among other large jurisdictions, are seeking continuances in cases subject to disruptions because of the decision. There is no guarantee that all judges will grant such continuances, which lends urgency to the problem.
State Sen. Ken Cuccinelli II, a Fairfax Republican who is running for attorney general, has called for a special session of the General Assembly to seek a legal remedy that would avoid mass disruptions and prevent guilty defendants from going free. His proposal would follow the blueprint of the handful of states unaffected by the court's ruling by requiring defendants to give advance notice if they intend to challenge a lab report. That would give prosecutors a chance to line up court testimony by lab analysts. Mr. Cuccinelli's suggestion may not be the only plausible solution, but it merits serious consideration.
Additionally, as noted in this ILB entry from July 1st, headed "Is Melendez-Diaz already endangered?", quoting Lyle Denniston of the SCOTUSLaw Blog:
[The] Court announced Monday that, next Term, it will review the case of Briscoe, et al., v. Virginia (07-11191). Here is the question raised in the Briscoe petition, filed in May of last year by University of Michigan law professor Richard D. Friedman:[Updated at 9:26 AM] The Post has more, a long front-page story today by Tom Jackman that begins:
“If a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the state avoid violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness?”
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.
The opinion, written by Justice Antonin Scalia, has prosecutors and judges shaking their heads in disgust and defense lawyers nodding with satisfaction at the notion that the Constitution's Sixth Amendment guarantee that defendants "shall enjoy the right . . . to be confronted with the witnesses against him" is not satisfied by a sheet of paper. * * *
States and counties across the country handle evidence differently, so the problems caused by the ruling vary widely. But many jurisdictions have a similar issue: 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. * * *
The court might be looking to blunt the impact. It has agreed to hear an Alexandria case that could provide prosecutors with an escape hatch from the requirement of bringing lab analysts to court. The court will rule on whether Virginia's law requiring the defense to provide advance notice when it wants the lab analyst to testify is constitutional. But a ruling on that case probably will not come until next year, and many lawyers believe Virginia's law is deficient.