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Thursday, June 25, 2009

Chicken Little Or Canary In The Coal Mine?: Supreme Court Finally Issues Opinion In Melendez-Diaz, Finding Certificates Of State Laboratory Analysts To Be "Testimonial"

Today, the Supreme Court finally decided Melendez-Diaz v. Massachusetts, finding in a 5-4 vote that certificates of state laboratory analysts were "testimonial" and thus covered by the Confrontation Clause. And, if you believe Justice Kennedy, the result of the decision will be the sky falling on many criminal prosecutions; if you believe Justice Scalia, Justice Kennedy is Chicken Little.

You can get the full facts of Melendez-Diaz from the Court's opinion, but here are the basics. Police arrested Luis Melendez-Diaz, took what was apparently cocaine from him, and charged him with distributing cocaine and trafficking in cocaine in an amount between 14 and 28 grams. At trial, the police introduced into evidence

three "certificates of analysis" showing the results of the forensic analysis performed on the seized substances.  The certificates reported the weight of the seized bags and stated that the bags “[h]a[ve] been examined with the following results: The substance was found to contain: Cocaine."...The certificates were sworn to before a notary public by analysts at the State Laboratory Institute of the Massachusetts Department of Public Health.

The analysts who conducted the forensic analysis, however, did not testify, and Melendez-Diaz claimed that their failure to testify violated his rights under the Confrontation Clause. The trial court disagreed, Melendez-Diaz was convicted, and his appeal eventually reached the Supreme Court.


In finding that the introduction of the certificates of analysis violated the Confrontation Clause, Justice Scalia, in his majority opinion, noted that the Court's analysis was guided by its opinion in Crawford v. Washington541 U.S. 36 (2004), which held that the Confrontation Clause is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant.


Scalia then noted that the Crawford opinion set forth various formulations of what is testimonial as follows:

“Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial state-ments...contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."

As I have noted before on this blog, however, the formulation that most courts have adopted is the one defining a "testimonial" statement as one that "was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial."  And in Melendez-Diaz, Scalia leaned on this formulation to a large degree in reaching his conclusion, finding that

not only were the affidavits "'made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,'"...but under Massachusetts law the sole purpose of the affidavits was to provide “prima facie evidence of the composition, quality, and the net weight" of the analyzed substance....We can safely assume that the analysts were aware of the affidavits’ evidentiary purpose, since that purpose—as stated in the relevant state-law provision—was reprinted on the affidavits themselves.

Scalia also, however, construed certificates of analysis as affidavits and noted that in the "formulations" block quote from Crawford, "[o]ur description of that category mentions affidavits twice." Indeed, Scalia, noted that "[t]here is little doubt that the documents at issue in this case fall within the 'core class of testimonial statements' thus described." All of this makes me wonder what took the Court so long to issue its opinion, and my guess is that Justice Thomas, who wrote a concurring opinion, was the swing vote.

Indeed, most of Scalia's opinion was not directed at the issue of whether certificates of analysis are "testimonial," but instead addressed various objections raised by the respondent and Kennedy's dissent: (1) that the analysts are not subject to confrontation because they are not “accusatory” witnesses; (2) that the analysts should not be subject to confrontation because they are not "conventional" (or "typical" or "ordinary") witnesses of the sort whose ex parte testimony was most notoriously used at the trial of Sir Walter Raleigh; (3) that there is a difference, for Confrontation Clause purposes, between testimony recounting historical events, which is "prone to distortion or manipulation," and the testimony at issue here, which is the "resul[t] of neutral, scientific testing;" (4) that the analysts’ affidavits are admissible without confrontation because they are "akin to the types of official and business records admissible at common law;" (5) that the Court should have found no Confrontation Clause violation in this case because petitioner had the ability to subpoena the anaylists.


I agree with Scalia's points for the most part and thus will leave readers to the Court's opinions to see whether they side with Scalia or Kennedy. To me, though, the most interesting question is whether Scalia is correct that the Court's opinion will not have a substantial negative impact on criminal prosecutions. According to Scalia, inter alia,

Perhaps the best indication that the sky will not fall after today’s decision is that it has not done so already. Many States have already adopted the constitutional rule we announce today,11 while many others permit the defendant to assert (or forfeit by silence) his Confrontation Clause right after receiving notice of the prosecution’s intent to use a forensic analyst’s report....Despite these widespread practices, there is no evidence that the criminal justice system has ground to a halt in the States that, one way or another, empower a defendant to insist upon the analyst’s appearance at trial. Indeed, in Massachusetts itself, a defendant may subpoena the analyst to appear at trial,...and yet there is no indication that obstructionist defendants are abusing the privilege.  

Moreover, Scalia contended that

defense attorneys and their clients will often stipulate to the nature of the substance in the ordinary drug case.  It is unlikely that defense counsel will insist on live testimony whose effect will be merely to highlight rather than cast doubt upon the forensic analysis.  Nor will defense attorneys want to antagonize the judge or jury by wasting their time with the appearance of a witness whose testimony defense counseldoes not intend to rebut in any fashion. 

Meanwhile, with regard to Scalia's first argument, Kennedy retorted that

Even what the Court calls the “simplest form” of burden-shifting statutes do impose requirements on the defendant, who must make a formal demand, with proper service, well before trial.  Some statutes impose more requirements, for instance by requiring defense counsel to subpoena the analyst, to show good cause for demanding the analyst’s presence, or even to affirm under oath an intent to cross-examine the analyst....In a future case, the Court may find that some of these more onerous burden shifting statutes violate the Confrontation Clause because they "impos[e] a burden...on the defendant to bring...adverse witnesses into court."

And, with regard to Scalia's second argument, Kennedy claimed that

The instant case demonstrates how zealous defense counsel will defend their clients. To convict, the prosecution must prove the substance is cocaine. Under the Court’s new rule, apparently only an analyst’s testimony suffices to prove that fact.  (Of course there will also be a large universe of other crimes, ranging from homicide to robbery, where scientific evidence is necessary to prove an element.) In cases where scientific evidence is necessary to prove an element of the crime, the Court’s rule requires the prosecution to call the person identified as the analyst; this requirement has become a new prosecutorial duty linked with proving the State’s case beyond a reasonable doubt. Unless the Court is ashamed of its new rule, it is inexplicable that the Court seeks to limit its damage by hoping that defense counsel will be derelict in their duty to insist that the prosecution prove its case.  That is simply not the way the adversarial system works.

I'm not sure who has the better of this argument, and it will be interesting to see how it plays out in courtrooms across the country.

-CM

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