June 26, 2005
Clinic to Seek Certiorari in U.S. Supreme Court
The Tulane Law Clinic is preparing a petition to the United States Supreme Court after the Louisiana Supreme Court recently held that a state statute, allowing the prosecution to introduce a “criminalist report” at trial in lieu of live testimony, was unconstitutional. In State v. Cunningham, the Court held that the statute was not a violation of the defendants Sixth Amendment right to confront and cross-examine the witnesses against him because the statute required the state to give the defendant notice of its intent to use the “criminalist report”.
At Mr. Cunningham’s trial for possession of marijuana, Clinical Instructor Katherine Mattes objected when the prosecutions attempted to introduce a “criminalist report” to prove an element of the offense – that the green leafy substance was in fact marijuana. The appellate court agreed with Mattes that the statute was unconstitutional and overturned the conviction. However, State Supreme Court Justice John Weimer, writing for the majority, explained that “the defendant did not avail himself of the opportunity to subpoena the person preparing the report.” The opinion went on to explain that once put on notice, the burden on the defendant to affirmatively seek the subpoenaing of the laberatory techinicians is a “featherweight” burden. The two justices who dissented both noted that even a “featherweight” burden encroaches upon the constitutionally protected right of the defendant.
Time- Picayune reporter Gwen Filosa reported in a recent article that Clinic Director, Professor Pamela Metzger will seek review with the United State Supreme Court. Metzger is also the author of Cheating the Constitution, 59 Vand. L. Rev. -- (Oct. 2005), an article that addresses and critiques the nationwide trend of allowing prosecutors to prove their cases with hearsay forensic reports, instead of live testimony.