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Monday, May 16, 2011

One Track Bind: Brady, Melendez-Diaz, and Remedial Rationing

Last week, I posted an entry about Cynthia JonesA Reason to Doubt: The Suppression of Evidence and the Inference of Innocence, 100 J. Crim. L. & Criminology 415 (2010). Pursuant to the Supreme Court's opinion in Brady v. Maryland, 373 U.S. 83 (1963), a new trial is warranted when the prosecution fails to timely disclose to the defendant material exculpatory evidence. But what's the sanction for a Brady violation? Well, typically, it is merely the prosecution disclosing the exculpatory evidence. And, as Professor Jones noted, "Simply ordering the prosecutor to disclose the Brady evidence is, of course, more of a directive than a sanction, because the prosecutor is not required to do anything above and beyond that which was already constitutionally mandated."

This is why I thought that Professor Jones' proposal for additional sanctions for Brady violations (giving a Brady instruction similar to the adverse inference instruction and/or instructing jurors that that a Brady violation supports the inference of consciousness of a weak case) could cause a sea change in Brady because it would deter prosecutors from failing to disclose material exculpatory evidence. And the reason that such sanctions would be so important is that it is virtually impossible for defendants to turn around and bring successful civil actions based upon Brady violations, especially given the Supreme Court's recent opinions in Van de Kamp v. Goldstein, 555 U.S. 335 (2009) and Connick v. Thompson, 131 S.Ct. 1350 (2011).

In this regard, the right created by Brady is similar to many criminal procedure rights in that it is  subject to what Jennifer E. Laurin, a professor at The University of Texas School of Law refers to as "remedial rationing" in her essay Melendez-Diaz v. Massachusetts, Rodriguez v. City of Houston, and Remedial Rationing, 109 Colum. L. Rev. Sidebar 82 (2009). According to Professor Laurin, remedial rationing is the process by "which enforcement of a given criminal procedure right is committed either to the criminal or the civil realm." And, the argument in her article is "that remedial rationing is misguided both in underestimating the structural limitations of criminal and civil litigation to achieve regulatory goals, and in disregarding potential synergies that may be generated by recursive criminal procedure remedies." So, let's see how this plays out with the example of Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009).

To understand Melendez-Diaz, we need to understand Crawford v. Washington, 541 U.S. 36 (2004), in which the Supreme Court 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.

Thereafter, in Melendez-Diaz,

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 Health.

Melendez-Diaz argued that these certificates/affidavits were "testimonial" and that their admission thus violated the Confrontation Clause because the analysts did not testify at trial, and the Court agreed, concluding 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.

So, why was the Court's ruling so important? Well, take a look at the report, Strengthening Forensic Science in the United States: A Path Forward, to see what's really going on in crime labs across the country and why it is so important for defendants to be able to cross-examine analysts about how they reached their results. But let's contextualize Melendez-Diaz in the larger criminal justice picture. Melendez-Diaz was denied his Confrontation right, so his conviction was reversed. Prosecutors in the future will undoubtedly be deterred from introducing similar evidence without the accompanying testimony of the person producing that evidence (especially if the Court rules the way that I think it will in Bullcoming v. New Mexico). But will Melendez-Diaz actually deter bad practices in forensic medicine?

Professor Laurin notes that there are two types of deterrence that precedent can effectuate:

Specific deterrence operates at the level of individual prosecutions: The right of confrontation might deter prosecutors from introducing weak or faulty evidence at any given trial; threat of cross-examination may deter a given analyst's impetus to falsity or even negligence. General deterrence concerns the impact of the confrontation right beyond a specific criminal case: Prosecutors anticipating cross-examination might increase their vetting of forensic science evidence and witnesses; discredited forensic methodologies vulnerable to cross-examination (for example, bullet-lead analysis) might fall into disuse.

She then points out, though, that

deterrence of any sort depends upon enforcement's adequacy and effectiveness. The right of confrontation must be invoked frequently enough to affect incentives, and the enforcement mechanism--cross-examination, or loss of a prosecution--must effectively expose poor science or spur better forensic science practices. The ability of criminal adjudication to deter bad forensic science practice is hampered on both scores.

So, let's look first at adequacy. According to Professor Laurin,

As for adequacy, confrontation can only occur at trial--an increasingly rare occurrence. In addition, the right will not always be invoked--either for tactical considerations by the defense or as a symptom of poor or underfunded defense advocacy. Some deterrent effects might nevertheless be generated. Prosecutors want to win those cases that are tried, and the lack of ability to predict ex ante when confrontation rights will be invoked might prompt wholesale efforts to improve analytical and testimonial practices. Or the defense bar, armed with the confrontation right, might devote more attention to training or information sharing on cross-examination of forensic scientists. Perhaps. But perhaps more likely is that, instead of investing time and political capital in greater oversight of crime laboratory practices and testimony, police and prosecutors will simply reduce reliance on scientific evidence altogether. In a universe of more crime than there is time to investigate and prosecute, law enforcement might swap low-science (think property crimes) for high-science (think DUI) cases. Prosecutors might also sweeten plea deals in drug cases to avoid trials. Whether such responses would be "good" or "bad" is debatable. But certainly, they thwart Melendez-Diaz's potential to generate systemic incentives for improved forensic science.

(Indeed, a similar argument could be made in the Brady context because the vast majority of cases are resolved by plea bargain, and courts have not done a good job at all of explaining if and to what extent the Brady doctrine applies to plea bargaining. See, e.g., John DouglassFatal Attraction? The Uneasy Courtship of Brady and Plea Bargaining, 50 Emory L. J. 437 (2001)).

Professor Laurin then notes that

These substitution effects also, of course, hamper "effectiveness" to the extent that the right of cross-examination triggers work-arounds rather than changes in forensic science practice. Additionally, where cross-examination does occur, its actual utility as a mechanism for exposing flaws in forensic science is suspect. Consider the anecdotal data. The Melendez-Diaz dissent pointed to six jurisdictions that already required "confrontation of the results of routine scientific tests or observations." Two, Texas and Mississippi, have seen some of the most serious instances of forensic science fraud. In Texas, Houston's police crime lab suffered decades-long deficiencies which were finally uncovered in an independent investigation commissioned by the city in 2005, long after the Texas Court of Criminal Appeals mandated confrontation. And in Mississippi the controversial "bite mark"opinions of the forensic dentist Michael West were given subject to the scrutiny of cross-examination.

So, the Confrontation right, like many criminal procedure rights, is subject to remedial rationing in that enforcement of the right is committed to the criminal realm. And based upon the way that defendants enforce the Confrontation right, Professor Laurin is able to preliminarily extrapolate

that criminal litigation, while perhaps unlikely to generate predictable general deterrence, possesses comparative advantages over civil litigation in the realm of specific deterrence: Constitutional violations are remedied relatively contemporaneously, and the consequences of the remedy are fairly likely to fall directly on the actors most immediately involved in the deprivation. Additionally, in the aggregate, criminal adjudication of criminal procedure guarantees is a relatively cheap mechanism for generating data about law enforcement conduct in a given jurisdiction.

Conversely,

we might plausibly suppose that civil litigation provides a superior mechanism for general deterrence. Even setting aside questions about the economic incentives actually created by civil damages, civil rights suits have the capacity to generate political incentives for prospective reform. Significant verdicts or settlements have the potential to generate media and public interest; the fact that the litigant is a civil plaintiff with a plausible claim to victimization rather than a criminal defendant obtaining relief on a "technicality" only enhances the comparative advantage of civil rights litigation in resonating with popular sentiment. The process of litigation often generates public data, sheds public light on government practices, or...generates a roadmap for reform. Indeed, even the threat of litigation may be seen as a political pressure point: Municipalities subject to suit might proactively address questionable practices in the aftermath of alleged misconduct in order to recapture a moral high ground or prevent current policymakers from exacerbating liability through ongoing "deliberate indifference" to constitutional violations.

Professor Laurin thus concludes that "criminal and civil remedies potentially generate coordinate advantages. But they are also interdependent in critical respects that are defeated by remedial rationing." Thus, "rationing overlooks the structural limitations of each remedy for generating systemic incentives in isolation, and that it diminishes the potential for positive synergistic effects between the criminal and civil remedial realms."

So, what's the solution? Well, Professor Laurin acknowledges at the end of her essay that her essay "has not touched on institutional and constitutional issues raised by the Court's cabining of congressionally created civil rights remedies, nor has it considered what principles, if any, should guide a court in limiting adjudication to one or another remedial regime." But, it seems to me to be a very important first step in addressing an issue that lies at the heart of our criminal justice system. Remedies define rights. So, how we define remedies is essential to how we define rights, and I look forward to seeing where Professor Laurin next takes her analysis. For interested readers, the next place to look is her recently published essay, Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence, 111 Colum. L. Rev. 670 (2011).

-CM

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