"SECOND, CROSS EXAMINING LAB TECHNICIANS MATTERS. IT IS NOT A “MERE TECHNICALITY.” THESE PEOPLE MAKE MISTAKES. WHEN THEY MAKE MISTAKES, PEOPLE GO TO PRISON FOR THE WRONG THING. THEIR LIVES ARE DESTROYED; THEIR CHILDREN GROW UP WITHOUT A PARENT. HAVING A CHECK ON WHAT THE LAB TECHS DO WILL MEAN THAT THEY SCREW UP LESS, AND THAT FEWER INNOCENT PEOPLE GO TO PRISON. BOTH ARE REALLY GOOD THINGS TO HAVE IN A CRIMINAL JUSTICE SYSTEM."
MATT KAISER; THE KAISER 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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I have found it difficult to understand why American defence lawyers - and their organizations - have not come up with a more vigorous defence of the Melendez-Decision as a necessary weapon for avoiding miscarriages of justice caused because of forensic breakdowns;
That's why I was pleased to stumble on Matt Kaiser's Blog - published earlier today - called "Why Melendez-Diaz is good policy."
"In Melendez-Diaz, the Supreme Court held that the information in laboratory technician reports can only be introduced against a criminal defendant if the person has had the opportunity to cross-examine the lab tech who did the testing," Kaiser begins;
"This has created an outcry among prosecutors and others. (See previous coverage on the topic on this blog here and here). Admittedly, the decision is a change in the way business has been done in our criminal courts. Such a change is bound to be met with resistance, because it will create more work for the government to convict people," he continues.
Be sure to point if you cross a lab tech:
I received an email from a friend of mine about the effect of Melendez-Diaz on the war on drugs. Drug prosecutions work only because they are able to be done in volume. If the defendants refuse to plead, and prosecutors have to call lab techs, they can quickly overrun the system such that drug prosecutions will quickly become rare.
One writer argues that Melendez-Diaz is a bad idea because,
The proliferation of drug arrests would cripple our state toxicology laboratory if a witness were required in every drug trial. In nearly all instances, the testing is reliable so requiring the toxicologist to appear is no more than a formality. It’s rare where a legitimate challenge can be raised to the reliability of a particular drug screening.
I think this is wrong; Melendez-Diaz is good policy for two reasons. I’ll explain what they are, after the jump.
First, the rumors of the death of the drug prosecution are greatly exaggerated. For better or worse. criminal defendants, and criminal defense lawyers, do not behave like union members being forced to work under an unfair contract. Criminal defendants do not, and generally will not, coordinate a systematic strategy of refusing to plead so that they can overwhelm the state.
Sure, there will be some lawyers who insist on taking cases to trial where prosecutors are unwilling to offer a reasonable plea (though I can see a pretty easy fix for that). Defense lawyers will be watching closely how the government in each jurisdiction handles getting their witnesses to court.
I practice in federal court. Federal judges are notorious for bending the court’s schedule to accommodate government witnesses. And if the prevailing judicial winds are that they think Melendez-Diaz is a technicality to be worked around, they’ll be more willing to be accommodating. Of course, they won’t be endlessly flexible, and it will vary significantly by judge.
In most jurisdictions, I don’t think there will be a great rush of defendant’s to trial, but, rather, a great pressure on prosecutors to cut much better deals to make taking a plea worth not betting that the state can’t call it’s witnesses.
So, to summarize point one – the sky is not falling.
Second, cross examining lab technicians matters. It is not a “mere technicality.” These people make mistakes. When they make mistakes, people go to prison for the wrong thing. Their lives are destroyed; their children grow up without a parent. Having a check on what the lab techs do will mean that they screw up less, and that fewer innocent people go to prison. Both are really good things to have in a criminal justice system.
That said, maybe I’m wrong. So, what I encourage any reader to do is to email me any instance of a lab tech being crossed well. Any error being pointed out, any failure to maintain a chain of custody, or do the testing properly.
Melendez-Diaz is going to mean a lot more lab techs get crossed a lot more aggressively. If something’s working, please share it.
Matt Kaiser's Blog - the Kaiser Blog - can be found at:
http://thekaiserlawfirm.com/blog/
Harold Levy...hlevy16@gmail.com;