"CONFRONTATION IS DESIGNED TO WEED OUT NOT ONLY THE FRAUDULENT ANALYST, BUT THE INCOMPETENT ONE AS WELL. SERIOUS DEFICIENCIES HAVE BEEN FOUND IN THE FORENSIC EVIDENCE USED IN CRIMINAL TRIALS. ONE COMMENTATOR ASSERTS THAT “(T)HE LEGAL COMMUNITY NOW CONCEDES, WITH VARYING DEGREES OF URGENCY, THAT OUR SYSTEM PRODUCES ERRONEOUS CONVICTIONS BASED ON DISCREDITED FORENSICS."
JUSTICE ANTONIN SCALIA; MELENDEZ-DIAZ v. MASSACHUSETTS.
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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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Here is the portion of Justice Scalia's decision for the majority of the Court which certainly caught my attention and should be required reading for anyone concerned about the fairness and accuracy of America's criminal justice system. I find it hard to believe that prior to this decision, scientific analysis could be introduced into evidence without testimony from the 'analyst' who produced it. I have omitted references in order to facilitate facilitate the flow of his comments. (I have provided a link to the complete decision - with references - at the end of this post);
“Nor is it evident that what respondent calls “neutral scientific testing” is as neutral or reliable as respondent suggests. Forensic evidence is not uniquely immune from the risk of manipulation. According to a recent study conducted by the National Academy of Sciences, “(t)he majority of laboratories producing forensic evidence are administered by law enforcement agencies such as police departments where the laboratory administrator reports to the head of the agency.” And (b)ecause forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency. A forensic analyst responding to a request from a law enforcement official may feel pressure – or have an incentive – to alter the evidence in a manner favourable to the prosecution.
Confrontation is one means of assuring accurate forensic analysis. While it is true, as the dissent notes, that an honest analyst will not alter his testimony when forced to confront the defendant, the same cannot be said of the fraudulent analyst. See brief for National Innocence Network as Amicus Curiae (discussing cases of documented “drylabbing” where forensic analysts report results of tests that were never performed. National Academy Report (discussing documented cases of fraud and error involving the use of forensic evidence.) Like the eyewitness who has fabricated his account to the police, the analyst who provides false results may, under oath in open court, reconsider his false testimony. And, of course, the prospect of confrontation will deter fraudulent analysis in the first place;
Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well. Serious deficiencies have been found in the forensic evidence used in criminal trials. One commentator asserts that “(t)he legal community now concedes, with varying degrees of urgency, that our system produces erroneous convictions based on discredited forensics. One study of cases in which exonerating evidence resulted in the overturning of criminal convictions concluded that invalid forensic testimony contributed to the convictions in 60% of the cases. And the National Academy Report concluded:
“The forensic science system, encompassing both research and practice, has serious problems that can only be addressed by a national commitment to overhaul the current structure that supports the forensic science community in this country.”
Like expert witnesses generally, an analyst's lack of proper training or deficiency in judgment may be disclosed in cross-examination.
After noting that the Melendez-Diaz case is illustrative of the reality that ”Like expert witnesses generally, an analyst's lack of proper training or deficiency in judgment may be disclosed in cross-examination," Justice Scalia goes on to conclude that:
“Contrary to respondent’s and the dissent’s suggestion, there is little reason to believe that confrontation will be useless in testing analyst’s honesty, proficiency, and methodology – the features that are commonly the focus in the cross-examination of experts;"
The Melendez-Diaz decision can be found at:
http://www.supremecourtus.gov/opinions/08pdf/07-591.pdf
Harold Levy...hlevy 15@gmail.com;
