Thursday, June 25, 2009

SCOTUS: Forensic reports require cross examination of analysts

The US Supreme Court today issued a new ruling in Melendez-Diaz v. Massachussetts that affidavits documenting the result of forensic testing were subject to the Confrontation Clause in the Sixth Amendment of the US Constitution, meaning the lab analysts must be made available for cross-examination in court.

In the 5-4 ruling written by Antonin Scalia, I was particularly pleased to see the new report by the National Academy of Sciences specifically cited as justification for cross-examination of forensic lab workers. From the opinion (pdf):
Nor is it evident that what respondent calls “neutral scientific testing” is as neutral or as reliable as respondent suggests. Forensic evidence is not uniquely immune fromthe risk of manipulation. According to a recent study conducted under the auspices of the National Academy of Sciences, “[t]he majority of [laboratories producing foren-sic evidence] are administered by law enforcement agen-cies, such as police departments, where the laboratory administrator reports to the head of the agency.” National Research Council of the National Academies, Strengthen-ing Forensic Science in the United States: A Path Forward 6–1 (Prepublication Copy Feb. 2009) (hereinafter National Academy Report). And “[b]ecause forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, theysometimes face pressure to sacrifice appropriate methodology for the sake of expediency.” Id., at S–17. A forensic analyst responding to a request from a law enforcementofficial may feel pressure—or have an incentive—to alter the evidence in a manner favorable to the prosecution.
What's more, wrote Scalia:
Like the eyewitness who has fabricated hisaccount to the police, the analyst who provides false re-sults may, under oath in open court, reconsider his false testimony. See Coy v. Iowa, 487 U. S. 1012, 1019 (1988). And, of course, the prospect of confrontation will deter fraudulent analysis in the first place.
Texans know for a fact, of course, that such fabrications sometimes take place, so insisting upon a confrontation requirement establishes an important new protection against such abuses. It should be mentioned, though, that in footnote 6 Scalia makes clear the NAS report was not the main factor spurring this decision:
Contrary to the dissent’s suggestion, post, at 23, we do not “rel[y] in such great measure” on the deficiencies of crime-lab analysts shown by this report to resolve the constitutional question presented in this case. The analysts who swore the affidavits provided testimony against Melendez-Diaz, and they are therefore subject to confrontation; we would reach the same conclusion if all analysts always possessed the scientific acumen of Mme. Curie and the veracity of Mother Theresa. We discuss the report only to refute the suggestion that this category of evidence is uniquely reliable and that cross-examination of the analysts would be an empty formalism.
As for the idea that requiring testimony by lab analysts would be too burdensome on the prosecution, Scalia thinks the concern is overstated but in any event told the complainers to suck it up:
respondent asks us to relax the requirements ofthe Confrontation Clause to accommodate the “‘necessities of trial and the adversary process.’” Brief for Respondent 59. It is not clear whence we would derive the authority to do so. The Confrontation Clause may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination. The Confrontation Clause—like those other constitutional provisions—is binding, and we may not disregard it at our convenience.
Hear, hear! I wish we saw more such strict constructionism in SCOTUS rulings on Fourth Amendment cases.

Those interested can also read the oral argument transcript here (pdf), and check out the Scotuswiki page on the case.

Particularly notable was the makeup of the 5-justice majority: Scalia and Clarence Thomas are widely considered among the most conservative members of the court, but they sided with Justices Ginsburg, Stevens and Souter, normally considered the court's "liberal" wing, in order to reach today's decision. Justice Kennedy authored a rather alarmist dissent, but given the NAS report, his confidence in the "increasing reliability of scientific testing" seems absurdly misplaced. Thank heavens these unlikely allies were able to come together to help keep forensic testers honest.

UPDATE: Check out the discussion of this ruling on the Texas District and County Attorneys Association user forum. Their lobbyist Shannon Edmonds notes that Scalia specifically said "that certificates of analysis under [Texas'] CCP Art. 38.41 pass muster" because the defense can still confront the witness if they announce they plan to do so before trial. Under the Texas statute, such a "certificate is not admissible under Section 1 if, not later than the 10th day before the trial begins, the opposing party files a written objection to the use of the certificate with the clerk of the court and provides a copy of the objection by fax, hand delivery, or certified mail, return receipt requested, to the offering party."

Also notable on the TDCAA user forum was Williamson DA John Bradley's underwhelmed response to the decision and critique of Kennedy's minority opinion:
Texas has largely taken the approach adopted by the majority and has not seen any serious negative consequences. I was surprised to learn that so many States, even after Crawford, thought that cross-examination of an expert witness who held key information on proof of an element of the offense, could be skipped by defining that witness' information as nontestimonial.

My initial reaction is that the dissent is overreacting. However, I do think it is irrelevant to constitutional analysis to consider how many cases are plea bargained before deciding whether the Confrontation Clause applies. That's a slippery slope.

And, I didn't think the statistics provided on how many analysts would have to appear and testify was all that shocking. Texas being a big place, we have been dealing with much bigger numbers with little or no problem.
MORE: From SCOTUSBlog, TalkLeft, and the New York Times.

AND MORE: For discussion of how the case might impact military justice, see here. See also Richard Friedman's analysis on his Confrontation Blog, and a discussion at Crime and Consequences. Plain Error posted on the topic.


Anonymous said...

Now that's a big day.

Prosecutors across the country are crying themselves to sleep tonight.

MailDeadDrop said...

Interesting that Texas was not listed among the 35 (of 49 possible) states filing amicus briefs in support of Massachusetts .

gravyrug said...

Scalia said that? Really? It's a very odd day indeed that I agree with that guy, but there it is.

However solid the science may be, it's still people presenting the results, and people can lie, fudge numbers, and even just be wrong.

doran williams said...

Medical records are another category of evidence which the Texas Legislature and Texas Courts consider "uniquely reliable" and therefore admissible when accompanied by a custodian's affidavit. When used in criminal or civil cases, neither the State nor a private litigant are required to produce for cross-examination the individual medical personel who made the examination or made a record of the statements by a victim, an injured person, or by someone else who was present at the time.

I have some experience with medical records in both criminal and civil cases. The information in those records can in fact be manipulated. In one case, after noticing some strange shadows or blurs on the photo-copies provided to me, I went to the hospital in question to review the original. I found that a number of entries, including the information in name and injury blanks, had been "whited-out" and typed over.

I suspect that this ruling in Melendez-Diaz will encourage a similar challenge to the medical records exception to the hearsay and confrontation exceptions.

Anonymous said...

1:05, the situation you cite is completely different. For instance, you were able to go look at the originals and use them to impeach the other party and you always had the right to depose the author of the document.

In criminal cases, you didn't have that right, until now.

Anonymous said...

People shouldn't be so surprised about Scalia. He has single-handedly (as a Justice) breathed life into the Confrontation Clause. This is his project, make no mistake.

doran williams said...

Anon 1:05--

"Completely different" is a bit over-board. "Not the same," or "Somewhat different" would be appropiate.

That particular case involved injuries from an automobile collision. But the hearsay and confrontation exceptions which apply to civil cases also apply to criminal cases.

My point is that medical records, when used in a criminal case, should be subject to a requirement that the person or persons making the entries be produced in court by the State, rather than having the hearsay contained in the records given to a jury via a custodian of record's affidavit.