"PUTTING THE CHEMIST OR LAB TECHNICIAN ON THE STAND TO BE TESTED BY CROSS-EXAMINATION, THE MAJORITY SAID, WILL HELP “WEED OUT NOT ONLY THE FRAUDULENT ANALYST, BUT THE INCOMPETENT ONE AS WELL.”
STILL, SCALIA SAID, THE DECISION TO COMPEL THE REPORTS’ EXPERT AUTHORS TO TESTIFY IS BASED ULTIMATELY ON THE RIGHT OF CONFRONTATION, NOT THE QUALITY OF THE REPORTS OR THE CREDIBILITY OF THE CHEMIST. “WE WOULD REACH THE SAME CONCLUSION,” HE WROTE IN A FOOTNOTE, “IF ALL ANALYSTS POSSESSED THE SCIENTIFIC ACUMEN OF MME. CURIE AND THE VERACITY OF MOTHER THERESA.”
LYLE DENNISTON; THE SCOTUS BLOG;
PHOTO: JUSTICE ANTONIN SCALIA;
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Background: It's not every day that an issue involving the work of forensic scientists in the criminal courts comes under scrutiny in the Supreme Court of the United States; Nor is it every day that the Supreme Court issues a searing indictment of the forensic science system in the country and faces head-on the abuses such as manipulation, prosecutorial pressure, outright fraud, bias, error and incompetence. Canadians are well aware of this through the many miscarriages of justice caused in Ontario by Dr. Charles Smith. Americans, who haven't received this message yet, will learn it from the blunt words of Justice Antonin Scalia for the majority. The Supreme Court ruled that a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence and therefore subject to "confrontation" through cross-examination of the analyst - but not before Justice Scalia told Americans how vulnerable they are to wrongful convictions as a result of American forensic science as it is practiced today. They need all of the protection of the law that they can get.
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"Expressing a heavy dose of skepticism that crime lab reports are so reliable as to be beyond question, the Supreme Court on Thursday cleared the way for chemists and other scientists who prepare such reports to be summoned to the witness stand in criminal trials to defend their analyses," the analysis of the Melendez-Diaz decision on the Scotus Blog begins;
"The 5-4 ruling in Melendez-Diaz v. Massachusetts (07-591) resulted from some unusual alliances among the Justices, and continued the deep division within the Court over how to interpret the Constitution’s guarantee that an individual on trial for a crime has a right to face and challenge the witnesses for the prosecution," it continues;
"Justice Antonin Scalia, the Confrontation Clause’s most devoted defender on the Court, wrote for the majority: “There is little reason to believe that confrontation will be useless in testing analysts’ honesty, proficiency, and methodology — the features that are commonly the focus in the cross-examination of experts.”
The ruling will provide for an added layer of challenge by defense lawyers to such criminal evidence as illegal drugs, fingerprints, blood spatter patterns and blood chemistry, guns and bullets, and other forms of physical evidence subjected to lab analyses, at least when the resulting reports are prepared for use as evidence in criminal trials.
Now, if prosecutors want to offer a crime lab report as evidence, and the report was prepared with the aim that it would be used at trial, the prosecution has to bring along the author or scientist and make them available for questioining by the defense — if the defense insists on the right to confront the analyst. It is not up to defense lawyers to summon them to the stand, but they must assert the right to confront the analyst, the Court indicated.
The opinion recited a good deal of information from published reports about how defective crime labs and their results are, and said that claims that lab reports are the product of “neutral scientific testing” are open to challenge because such reports are not “as neutral or as reliable” as advertised. “Forensic evidence,” Scalia wrote, “is not uniquely immune from the risk of manipulation.”
He cited one report, for example, that said “there is wide variabiility across forensic science disciplines with regard to techniques, methodologies, reliability, types and numbers of potential errors, research, general acceptability, and published material.”
Putting the chemist or lab technician on the stand to be tested by cross-examination, the majority said, will help “weed out not only the fraudulent analyst, but the incompetent one as well.”
Still, Scalia said, the decision to compel the reports’ expert authors to testify is based ultimately on the right of confrontation, not the quality of the reports or the credibility of the chemist. “We would reach the same conclusion,” he wrote in a footnote, “if all analysts possessed the scientific acumen of Mme. Curie and the veracity of Mother Theresa.”
To the complaints of prosecutors (and the dissenting Justices) that the decision is going to lay a heavy new burden on the preparation and analysis of criminal evidence, Justice Scalia opined that “the sky will not fall.”
The best evidence of that, he wrote, is that the sky had not fallen even without the new ruling, because “many states have already adopted the constitutional rule that we announce today, while many others permit the defendant to assert (or forfeit by silence) his Confrontation Right after receiving notice of the prosecution’s intent to use a forensic analyst’s report…There is no evidence that the criminal justice system has ground to a halt…”
Moreover, Scalia said, defense lawyers may often opt not to insist on confronting a crime lab analyst, because they may conclude for strategic reasons that this might highlight rather than cast doubt on the report’s results as evidence.
Scalia’s opinion was supported by three of the Court’s more liberal members — Justices Ruth Bader Ginsburg, David H. Souter and John Paul Stevens — and by another conservative like Scalia: Justice Clarence Thomas. Thomas filed a separate concurrence, putting some limits on what he understood the sweep of the ruling might be.
Justice Anthony M. Kennedy, joined by two conservatives, Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., and a member of the liberal bloc, Justice Stephen G. Breyer. Kennedy began his dissent with a sweeping challenge: “The Court sweeps away an acceped rule governing the admission of scientific evidence. Until today, scientific evidence could be introduced into evidencde without testimony from the ‘analyst’ who produced it. This rule has been established for at least 90 years.”"
Harold Levy...hlevy15@gmail.com;
