Supreme Court Rules Defendant Has Right to Live Testimony of Lab Chemist

The Supreme Court today decided Melendez-Diaz v. Massachusetts (opinion here.) It ruled for the defense, which had objected to the state's reliance on an affidavit to prove a substance was cocaine. The defense said it was entitled to the live testimony of the chemist so it could cross-examine him or her. The Court agreed with the defense that live testimony was required under the Sixth Amendment's right to confront witnesses.

At petitioner’s state-court drug trial, the prosecution introduced certificates of state laboratory analysts stating that material seized by police and connected to petitioner was cocaine of a certain quantity. As required by Massachusetts law, the certificates were sworn to before a notary public and were submitted as prima facie evidence of what they asserted.

Petitioner objected, asserting that Crawford v. Washington, 541 U. S. 36, required the analysts to testify in person. The trial court disagreed, the certificates were admitted, and petitioner was convicted. ....

Held: The admission of the certificates violated petitioner’s Sixth Amendment right to confront the witnesses against him.

In my view, too many defense lawyers stipulate to the chemical evidence rather than take on a chemist. Maybe this decision will encourage more of them to challenge the evidence. [More...]

In my second federal criminal trial ages and ages ago, my client was charged with selling a pound of cocaine to an undercover agent. I had my client retain both a chemist from the University of Colorado and a renowned defense attorney, James Shellow from Wisconsin as co-counsel, who specialized in challenging forensic drug evidence. During Jim's cross-examination of the chemist, it turned out she made changes to her findings on the plane ride to Denver. The prosecutor, who years later became a federal judge, offered us a misdemeanor when she admitted that. Our client got probation.

I spoke with Jim Shellow the other day....he's 82 now and about to release a new book on challenging forensic drug evidence. He's also coming to the NORML Key West legal conference in December to tell us all about it.

Moral of the story: Make the Government prove the identity of the controlled substance with live testimony from the chemist. The Supreme Court today affirmed our right to do it. It's another instance of "use it or lose it." When it comes to rights, we should use every one we have.

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    Interesting, especially Jeralyn's (none / 0) (#1)
    by oculus on Thu Jun 25, 2009 at 11:44:34 AM EST
    account of her trial.  Also interesting Justice Breyer signed Justice Kennedy's dissent, not Justice Souter's majority opinion.

    Yup (none / 0) (#2)
    by andgarden on Thu Jun 25, 2009 at 11:49:34 AM EST
    My guess is that Breyer thinks custom points in a different direction. But he didn't write for himself. . .

    True. Kennedy abhors Souter's (none / 0) (#3)
    by oculus on Thu Jun 25, 2009 at 11:51:00 AM EST
    "judicial activism" I gather.

    You mean Scalia? (none / 0) (#5)
    by andgarden on Thu Jun 25, 2009 at 11:54:13 AM EST
    Mea culpa. (And I'm not on my (5.00 / 1) (#6)
    by oculus on Thu Jun 25, 2009 at 11:58:55 AM EST
    Blackberry; no excuses.)

    The same right should be granted... (none / 0) (#4)
    by kdog on Thu Jun 25, 2009 at 11:54:01 AM EST
    to anybody who fails a drug test, be it probationary or pre-employement or what have you....the right to question the lab-tech that can potentially throw your life upside down because of a positive test.

    silly me! (none / 0) (#7)
    by cpinva on Thu Jun 25, 2009 at 01:03:23 PM EST
    i just assumed, since the constitution mandates it, that the right to physically confront your accuser was a "no brainer". the lab report isn't accusing you, the state and the lab technician are. you can't cross-examine an affidavit.

    Can't get live testimony from a camera.

    I like how you think Sarc.... (none / 0) (#9)
    by kdog on Thu Jun 25, 2009 at 01:16:45 PM EST
    let the court challenges of those blasted red-light cameras begin!

    In my state (none / 0) (#10)
    by AlkalineDave on Thu Jun 25, 2009 at 01:21:45 PM EST
    AZ, former Gov Napolitano admitted that the cameras had nothing to do with making the roads safer and everything to do with generating more state revenue.  Basically, please don't stop speeding we need your money!  Red light cameras p*ss me off.  

    I remember numerous attorneys (none / 0) (#15)
    by Inspector Gadget on Thu Jun 25, 2009 at 07:17:07 PM EST
    getting on TV in Phoenix telling people to throw those tickets away....the law in AZ is that a police officer has to physically hand you a ticket there. Many people shredded those things.

    I also read recently that some states with those cameras get little to NOTHING from the ticket revenues. That the contracts they have with the camera/monitoring companies give all the revenue to the camera company.


    There's a case right now (none / 0) (#12)
    by jbindc on Thu Jun 25, 2009 at 01:47:59 PM EST
    in the Sixth Circuit, (Kelly Mendenhall et al. v. The City of Akron et al) in front of Judge David Dowd.

    Ginsburg and Scalia, (none / 0) (#11)
    by bocajeff on Thu Jun 25, 2009 at 01:33:40 PM EST
    When these two agree on something then I just kind of go along with it...

    Hey (none / 0) (#13)
    by jbindc on Thu Jun 25, 2009 at 01:51:15 PM EST
    Ginsburg and Scalia hang out every New Year's Eve - they probably also agree on champagne and h'oerdeurves.....

    money for nothing (none / 0) (#14)
    by diogenes on Thu Jun 25, 2009 at 04:54:16 PM EST
    In one case of a million the witness suddenly "admits" on the stand that evidence was fabricated.  Basically this is a ploy to make the prosecution spend thousands of dollars to pay expert witnesses to come to court and be subject to fishing expiditions in the hope that some jury might dislike the demeanor of the expert.  Of course, any chemist with Asperger's syndrome, a stutter, or who wears a bow tie might as well give up on doing forensic chemistry.

    that's a bit of a baseless leap. (none / 0) (#17)
    by cpinva on Fri Jun 26, 2009 at 12:44:09 AM EST
    perhaps, were more lab techs forced to the witness stand, it would be more than
    In one case of a million

    if i recall correctly (and i do), there've been a few instances (texas comes to mind) of entire labs, where the standards were so lax, that analytical evidence from them was deemed useless.

    as well, several cases of tainted prosecution forensic testimony have recently come to light. you may think it's wasted time and money, but i'm guessing the person looking at jail time wouldn't agree.

    again, it's the state's burden to prove you guilty, not yours to prove your innocence.


    Out of curiosity.... (none / 0) (#18)
    by EL seattle on Fri Jun 26, 2009 at 01:45:29 AM EST
    ... because I'm not a part of the whole Law/Order infrastructure myself, so I don't know the details of these things...

    Does a person who qualifies as an "accuser" at a trial (in this case that would be a lab worker, but it could be an arresting officer or something like that) have to be indefinitely available for court testimony on the court's schedule?  I'd think that this would make things really tough for folks who work in law enforcement and decide to move on to a new job in a new town several hundred miles away.  Or if they're in the National Guard and are called up for active duty.

    And does this same requirement apply to to any later stages? (Like appeals, etc.)


    traffic tickets (none / 0) (#19)
    by diogenes on Fri Jun 26, 2009 at 04:01:04 PM EST
    That's why people plead innocent to traffic tickets--hope that the cop doesn't show up.

    It is ironic (none / 0) (#16)
    by JamesTX on Thu Jun 25, 2009 at 07:23:38 PM EST
    that such important evidence is taken at face value. The people who produce such evidence, contrary to popular assumption, are among the least regulated "professionals" in science. I know. I am a chemist. I spent years working in analytical labs and years beyond that interpreting and evaluating laboratory data. There is no such thing as a "professional chemist" legally. There is no law in my state which licenses or regulates them. There is therefore no standard for training, and no law which requires any specific education or training to do the job. In fact, anyone can work as an analytical chemist if they can get the job. Any regulatory agency which relies on analytical data from labs has to write the requirements for analysts and the procedures for testing into their regs. Most do so sparingly.

    Believe me, analytical chemistry data are among the weakest forms of evidence out there, unless the analyst is specifically trained in forensic techniques and suitable control procedures are implemented and maintained. If the analyst can't get up in court and swear to that under threat of perjury, then the defendant shouldn't have to do time for their results.

    Procedures which strengthen the evidence value of data include sufficient chain of custody documentation, the analyst being blinded to the identity of the sample, blind replicates and spikes, lab control samples (standards of known composition submitted for analysis without the analysts' knowledge), etc. These things are required in any field where high stakes business decisions are based on lab results -- the lobbyists involved in regulation see to it. People accused of crimes should get the same protection as big businesses are afforded under regulatory agencies.

    A strong chemical analysis from an evidence perspective is exceedingly expensive because of the procedures required to rule out alternative explanations for positive results.

    It is another instance of the "white coat syndrome", where anyone wearing a white coat is assumed to have superior knowledge which is accepted without question.

    Believe me, you lawyers, with a little help from a knowledgeable consultant, you could literally tear many of these "analyses" to pieces and leave juries laughing.

    the case was cocaine (none / 0) (#20)
    by diogenes on Fri Jun 26, 2009 at 04:03:28 PM EST
    So you're telling me that most people caught with "cocaine" really are carrying sugar, talc, etc and that this isn't about harassing the prosecution?

    You know, (none / 0) (#23)
    by JamesTX on Fri Jun 26, 2009 at 04:53:42 PM EST
    I suspect that most people arrested with drugs really do have drugs and have them intentionally. What is true, though, especially with young people and street drugs, is that often they do not really know what they have or the concentration of it (something that would be almost completely stopped with legalization). That is, they may think they have cocaine but it is really amphetamine or a mixture of several things. They might also have non-active hemp dusted with something psychoactive when they think they have marijuana. This is even true for junkies. They probably often have some pirated pharmaceutical opioid when they think they have heroin. There have been cases where that has meant disaster for their health.

    But I don't really want to argue the "most cases are x thus the law should assume x" thing. Most is 51%, or wherever you want to cut the decimal. Even if 90% are guilty, it doesn't justify wrongfully convicting 10%. This is bad reasoning and is in no commensurate with our ideals.

    The biggest problem with justice that I see is the case law that has allowed any "substance" which contains any amount of a drug to be weighed in as "pure" for purposes of legal determination of quantity. That defies logic. It therefore legally makes no difference whether a powder is 1% or 70% cocaine. Ten pounds of it is ten pounds of cocaine for legal quantity purposes. That is equivalent to saying that 50 gallons of a liquid that contains 10% petroleum and 90% water is "50 gallons of gasoline". It makes no sense. There is absolutely nowhere else in the realm of weights and measures that such an absurd assumption would be accepted as legal fact.

    Just before the progressive movement got moving, there was a ring of narcotics officers in Dallas who were setting up illegal immigrants to make their quotas and to make their jobs easier. Because the press in Dallas was still well gagged by corporate masters at that time, it wasn't widely publicized. These cops mixed a small amount of seized cocaine with a huge amount of crushed sheetrock (gypsum). They put it in the trunk of and old car, and then picked up people by offering them work at an informal street pickup point for day laborers. They told the victims their job was to drive the car, and then their partners would pull the car over and search it. They sent an unimaginable number of people to prison before they were caught. Unimaginable.

    I'm sorry those poor prosecutors are harassed so much. They have such hard lives and are in so much peril in comparison to the people they prosecute.

    In a word, no. Demanding that a case be proved in order to convict someone is not harassment of the prosecution. That line of reasoning is what has gotten us to where we are -- a point where proof of guilt is no longer required. I'm sorry, but I can't muster a whole lot of sympathy for prosecutors. I really don't see them as having such tough lives, or even very hard jobs. When I look at the increasing roll call of exonerees, I even feel a little indignant toward the people in that field. No problem. I'm sure they don't care.

    HaHa. Poor prosecutors. Good joke!