Are crime lab reports "testimonial" documents? SCOTUS will decide

Doc Berman over at Sentencing Law & Policy recently asked what "sleeper" cases at the US Supreme Court people were watching, and I mentioned that, though not a sentencing issue per se, I was interested in the outcome of of Melendez-Diaz v Massachussetts, which was granted cert this spring and will be argued this fall. The case will decide whether a lab report is "testimonial" evidence subject to Crawford/confrontation requirements, meaning a defendant would have the right to cross examine the lab technicians who performed the lab work.

This case has important implications for challenging bad forensic science in court; circuit courts are split 6-5 in (bare) favor of concluding lab reports are "testimonial" documents.

Unequivocally my own view is that considering lab reports anything but written expert testimony seriously misunderstands modern forensic science, which is not "objective" science but a results oriented, conviction driven body of techniques, not a formal application of the scientific method. In real science, a theory is not valid unless it can be tested and possibly disproven. In forensic science, the "theory" is that this or that person did it, and the goal is to find evidence that bolsters that case, which is a slightly different breed of cat. A few years back I wrote on this topic,

Forensic science isn't "objective" science, it's goal oriented. Police scientists tend to find the answers prosecutors want because, as a Dallas scientist testified to the Senate Criminal Justice Committee in Houston, it's prosecutors who tell the scientists what avenues of inquiry are "probative" -- in other words, prosecutors tell the scientists what questions to ask, not defense attorneys. If defense counsel want to ask their own scientific questions - for example, to perform tests that might exclude the defendant as a suspect - the defendant must pay for outside lab testing, or convince a reluctant judge to release the funds.

Forensic science is contextual, not neutral, and outside the classroom it's always employed with a purpose. In court, innocent people get roped in by bad science largely because the purpose of the science is to convict, not to exonerate.

In more than a few Texas cases that lack of neutrality has led to wrongful convictions, which is one of the reasons Senate Criminal Justice Committee Chair John Whitmire recently called for removing Houston's crime lab from under control of the police department, so that the culture of the lab would be dominated by scientists instead of police officers. Another possible solution is for the state to provide experts for the defense in cases (e.g., like arson) that hinge particularly on interpretive lab results.

In the context of the growing effort to prevent and remediate wrongful convictions, it would be a big blow if SCOTUS says lab reports can't be interrogated at trial. Over at the Confrontation Blog, U. Michigan law prof Richard Friedman summarizes the Melendez-Diaz case, and gives links to the particulars:

Melendez-Diaz v. Massachusetts, No. 07-591, seeking review of Commonwealth v. Melendez-Diaz, 870 N.E.2d 676 (Mass. App. 2007), an unpublished decision that follows Commonwealth v. Verde, 827 N.E.2d 701 (Ma. 2005). You can see the petition by clicking here, my amicus brief by clicking here, the amicus brief filed by three other law professors and several defense organizations by clicking here, the Commonwealth's brief in opposition by clicking here, and the petitioner's reply brief in support of the petition by clicking here. This one is much simpler: Massachusetts is among the states holding that forensic lab reports are not testimonial. I think this is plainly wrong, and the Supreme Court should resolve the conflict quickly. This is an important theoretical matter, because there is no sound theory of what “testimonial” means under which lab reports are not testimonial. And it is an important practical issue because of the many thousands of cases involving lab reports each year. I think courts holding these reports to be non-testimonial are motivated largely by faith in the reliability of these reports – faith that in some cases is misplaced and in any event is inapposite under Crawford – and by concern about the costs of requiring the authors to testify subject to confrontation. I believe those costs could be significantly reduced by providing for depositions of the authors.

Many aspects of forensic science like fingerprint and ballistics analysis have simply proven less reliable over time - as they've been subjected to rigorous, peer reviewed testing - than was long believed to be the case by the courts. Arson investigators for years routinely testified to a certainty to "facts" that turned out not to be true at all. DNA analysts frequently overstate in court the level of certainty their identifications prove. Breathalyzer technology has been legitimately challenged.

At the "Actual Innocence" conference in Plano last month, former executive director of the National Forensic Technology Science Center Bill Tilstone told the audience that most "pattern evidence" - handwriting analysis, shoe and tire print comparisons, etc., has no research-based foundation at all. Much of forensic science is "soft" science, he said, that at best has not or even cannot be comprehensively tested for accuracy.

Perhaps someday, somehow, it will be possible to rid the courtroom of the actual pseudoscience, but at a minimum, in the meantime, expert testimony shouldn't be excluded from cross examination just because a technician wrote down her results on a standardized form.