Today, SCOTUSblog posted a list of the Supreme Court's outstanding cases for the 2008 term. In the very beginning Kristina Moore lists the lone case raising a criminal law issue -- Melendez-Diaz v. Massachusetts (07-591). The case raises an interesting issue, whether a state forensic analyst's lab report is testimonial and therefore subject to the confrontation standards of Crawford v. Washington and Davis v. Washington. The outcome of the Supreme Court's decision could depend on whether the Court believes Melendez-Diaz's argument that the lab report was prepared "for the purpose of prosecution" and was not just a routine test conducted by an analyst who happened to work for the state.
The facts of the case are relatively simple. A police officer observed Melendez-Diaz and his co-defendant Ellis Montero engaged in what appeared to be a drug deal. The officer stopped the purchaser, and recovered 4.75 grams of cocaine divided among four small plastic bags. The purchaser, Melendez-Diaz and Montero were arrested and driven to the police station. During the eight minute drive either Melendez-Diaz or Montero dropped a large plastic bag filled with nineteen small bags of cocaine in the back seat of the police cruiser. Melendez-Diaz was convicted by a jury for distributing and trafficking cocaine. He appealed, arguing that Crawford entitled him to confront the lab technician who prepared his drug analysis certificates. The Commonwealth of Massachusetts Appeals Court never really addressed this argument, and instead it upheld his conviction on sufficiency of the evidence grounds. The only mention of the reports occurs in a footnote that mentions that state precedent,Commonwealth v. Verde, holds that certificates of drug analysis do not deny a defendant the right to confrontation and are not subject to Crawford. The Massachusetts Supreme Judicial Court denied review without comment.
The facts of the case are relatively simple. A police officer observed Melendez-Diaz and his co-defendant Ellis Montero engaged in what appeared to be a drug deal. The officer stopped the purchaser, and recovered 4.75 grams of cocaine divided among four small plastic bags. The purchaser, Melendez-Diaz and Montero were arrested and driven to the police station. During the eight minute drive either Melendez-Diaz or Montero dropped a large plastic bag filled with nineteen small bags of cocaine in the back seat of the police cruiser. Melendez-Diaz was convicted by a jury for distributing and trafficking cocaine. He appealed, arguing that Crawford entitled him to confront the lab technician who prepared his drug analysis certificates. The Commonwealth of Massachusetts Appeals Court never really addressed this argument, and instead it upheld his conviction on sufficiency of the evidence grounds. The only mention of the reports occurs in a footnote that mentions that state precedent,Commonwealth v. Verde, holds that certificates of drug analysis do not deny a defendant the right to confrontation and are not subject to Crawford. The Massachusetts Supreme Judicial Court denied review without comment.
Jeffrey Fisher, an experienced Supreme Court advocate, led the charge to appeal the ruling to the U.S. Supreme Court. In Melendez-Diaz's petition, he argued that Ohio v. Roberts' "reliability" test had led many states to exempt crime lab reports from confrontation by labeling them as "business records" or "public" records." Then Crawford was decided, and the "prosecutorial use of forensic laboratory reports in lieu of live testimony" is less constitutionally defensible. Melendez-Diaz's brief basically argued that the lab report was the equivalent of an ex parte affidavit, a type of evidence Crawford called one of "the principle evil[s] at which the Confrontation Clause was directed..." The lab report requires confrontation under the Sixth Amendment because it is different from a "business record" which was not prepared with an eye toward criminal investigation.
The State's merit's brief argued that lab reports were nontestimonial records that were not accusatory. It argued that lab reports only established the composition and weight of a chemical substance and they were only significant if a testifying witness, who would be subject to cross-examination, could establish a connection between the substance and the accused. Furthermore, the lab reports were essentially official records or business records because they were prepared by the state Department of Public Health pursuant to a duty imposed by law. Reports were not prepared by technicians with an eye toward prosecution with the intent that an official could collect substantive evidence and then submit it to the jury as the objective truth. The State also argued that requiring lab analysts to testify at trial would impose burdens on the prosecution, and was unlikely to be beneficial to either side because the analyst was unlikely to recall the details of one of the thousands of tests he routinely performs.
Back in November, Lyle Denniston reported on oral arguments in this case. His post, "As Kennedy goes..." indicates why this particular decision is taking so long. According to Denniston, Kennedy appeared to swing from one side to the other during the oral argument, initially siding with the State, and then finding strength in Melendez-Diaz's argument. Denniston reported that while Melendez-Diaz's advocate only faced tough questions on the utility of requiring a lab technician to testify (Justice Scalia wondered if Jeffrey Fisher was "arguing for an empty exercise"), Massachusetts Attorney General Martha Coakley was challenged by both Justices Scalia and Souter to distinguish between eyewitness testimony, which requires confrontation, and lab reports. Assistant to the U.S. Attorney General Lisa H. Schertler also argued as amicus for Massachusetts. Her key point that a lab report was just a machine-generated report, similar to a courthouse clerk's statement, and not subject to confrontation was quickly rejected by Justice Scalia. Justice Scalia did not like her distinction because a courthouse clerk's statement, and a machine readout, were not prepared for the purpose of prosecution, but this particular report was.
More decisions are anticipated on Monday, June 22, Thursday, June 25 and Monday, June 29th. It won't be long before we know whether Crawford requires cross-examination of the lab analyst who prepared Melendez-Diaz's report.
The State's merit's brief argued that lab reports were nontestimonial records that were not accusatory. It argued that lab reports only established the composition and weight of a chemical substance and they were only significant if a testifying witness, who would be subject to cross-examination, could establish a connection between the substance and the accused. Furthermore, the lab reports were essentially official records or business records because they were prepared by the state Department of Public Health pursuant to a duty imposed by law. Reports were not prepared by technicians with an eye toward prosecution with the intent that an official could collect substantive evidence and then submit it to the jury as the objective truth. The State also argued that requiring lab analysts to testify at trial would impose burdens on the prosecution, and was unlikely to be beneficial to either side because the analyst was unlikely to recall the details of one of the thousands of tests he routinely performs.
Back in November, Lyle Denniston reported on oral arguments in this case. His post, "As Kennedy goes..." indicates why this particular decision is taking so long. According to Denniston, Kennedy appeared to swing from one side to the other during the oral argument, initially siding with the State, and then finding strength in Melendez-Diaz's argument. Denniston reported that while Melendez-Diaz's advocate only faced tough questions on the utility of requiring a lab technician to testify (Justice Scalia wondered if Jeffrey Fisher was "arguing for an empty exercise"), Massachusetts Attorney General Martha Coakley was challenged by both Justices Scalia and Souter to distinguish between eyewitness testimony, which requires confrontation, and lab reports. Assistant to the U.S. Attorney General Lisa H. Schertler also argued as amicus for Massachusetts. Her key point that a lab report was just a machine-generated report, similar to a courthouse clerk's statement, and not subject to confrontation was quickly rejected by Justice Scalia. Justice Scalia did not like her distinction because a courthouse clerk's statement, and a machine readout, were not prepared for the purpose of prosecution, but this particular report was.
More decisions are anticipated on Monday, June 22, Thursday, June 25 and Monday, June 29th. It won't be long before we know whether Crawford requires cross-examination of the lab analyst who prepared Melendez-Diaz's report.
What's your guess on the outcome? Unfortunately, I see the argument that the lab report serves as somewhat a "substitute for live testimony," which is part of the Crawford analysis, but hate to think of the waste of time and money it will be to require lab techs to come in for even simple substances identifications.
If the Court finds the reports testimonial, can law enforcement do anything to remove their testimonial nature? E.g. send more evidence to independent labs and not tell the lab tech the story behind the request? Then the lab tech really isn't writing the report to assist in a prosecution (or at least doesn't know they are)?