Case at Supreme Court

[Pat A. Wertheim]

A friend emailed me some information that the Supreme Court has agreed to hear a case involving the admissibility of Crime Lab reports without the criminalist there to testify. Does anybody know what this is about?

[Michele]

Here's what I found:
http://ap.google.com/article/ALeqM5iViQ ... QD8VF947O2

Court Accepts Crime Lab Case
10 hours ago

WASHINGTON (AP) — The Supreme Court agreed Monday to decide whether prosecutors can use crime lab reports as evidence without having the forensic analyst who prepared them testify at trial.

The reliability of crime labs has been questioned in several states and at the federal level in recent years.

State and federal courts have come to different conclusions about whether recent Supreme Court decisions affirming the constitutional right of a defendant to confront his accusers extend to lab reports that are used in many drug and other cases.

The case the justices accepted, and will consider in the fall, comes from Massachusetts. Luis Melendez-Diaz was convicted of trafficking in cocaine partly on the basis of a crime lab analysis that confirmed that cocaine was in plastic bags found in the car in which Melendez-Diaz was riding.

Rather than accept the report, however, Melendez-Diaz objected that he should be allowed to question the person who prepared it about testing methods, how the evidence was preserved and a host of other issues.

A brief supporting the defendant points out "systemic problems with unreliable scientific data" in lab analyses, including problems in the Massachusetts state lab.

The justices declined a separate case from Iowa, raising a similar question about the use of videotaped interviews in child sex abuse cases.

The decision, announced without comment Monday, leaves in place an Iowa Supreme Court ruling that bars prosecutors from using the interview of Jetseta Gage of Cedar Rapids against her alleged molester.

The high court's action has little practical effect in that the defendant, James Bentley, already is serving a 100-year sentence in federal prison for sexual exploitation and child pornography for taking sexually explicit pictures of the girl as well as a 1-year-old girl.

Gage was killed by Bentley's brother, Roger Bentley, in March 2005. Roger Bentley was sentenced to life in prison without parole.

State and federal courts have been split on the issue, with some ruling that interviews given to counselors and other non-police professionals may be admitted in court even without cross-examination.

The topic is of great importance to prosecutors, and 26 states joined Iowa in asking for Supreme Court review.

The cases are Melendez-Diaz v. Massachusetts, 07-591, and Iowa v. Bentley, 07-886.

and

http://www.eyewitnessnewstv.com/Global/ ... ?S=8027681

Court will hear case challenging crime lab report


Associated Press - March 17, 2008 12:53 PM ET

SUPREME COURT (AP) - The Supreme Court has agreed to decide whether prosecutors can use crime lab reports as evidence without having to have the forensic analyst who prepared them testify.

A Massachusetts man has challenged his cocaine trafficking conviction on the basis that he should have been allowed to question the analyst who confirmed the drug was in bags found in the car in which he was riding.

Luis Melendez-Diaz says he should have been allowed to cross-examine the analyst about the state crime lab's testing methods and how it preserves evidence.

State and federal courts differ on whether recent Supreme Court decisions upholding a defendant's right to confront his accusers should be extended to lab reports.

The justices, without comment, declined a separate case from Iowa concerning the use of videotaped interviews in child sex abuse cases. The decision leaves in place an Iowa Supreme Court ruling that bars prosecutors from using the interview of a young girl against her alleged molester.

[L.J.Steele]

It is a Massachusetts case -- I'll see if I can dig up the cert. petition. Essentialy it is a hearsay problem under Crawford with some issues regarding cross-examination of the person who actually did the work.

[Gerald Clough]

Here are:

Petition:
http://www.scotusblog.com/wp/wp-content ... tition.pdf

Petitioners Reply Brief:
http://www.scotusblog.com/wp/wp-content ... rt_rep.pdf

Mass. Court Memo:
http://www.scotusblog.com/wp/wp-content ... pendix.pdf

[L.J.Steele]

You can find all the papers, including the amicus briefs to the petition here:

http://www.scotusblog.com/wp/todays-orders-23/

(Scroll down 'til you find Melendez-Diaz v. Massachusetts)

This is going to be interesting.

[mdavis]

The logical end of the process of requiring testimony of examiners for each and every case worked is that travel, waiting and testifying will ultimately take more time than is spent on case work, thus adding to the growing backlog of cases. If I work, say five cases per day, I then must take five days (or more) to effectively complete them in court. I'm trying to do the math ......

[L.J.Steele]

MDavis, don't worry much. Remember that 90ish percent of criminal cases are resolved by plea bargain. No testimony required. Of those that do go to trial, prosecution and defense have to make tactical decisions about which witnesses to call -- defense may be willing to stipulate to reports in cases where they aren't a key issue. If I'm asserting a self-defense claim, I'm admitting the client shot the victim -- I don't really need to waste anyone's time with the fingerprint report showing my guy held his own firearm or the ballistics report matching the bullet in the victim to said firearm. Similarly, if the fight is not about who did it, but what level of intent was present -- murder v. manslaughter, for example.

If I'm asserting mistaken ID on the other hand, then I need to put up a fight about identifying test results.

Similarly for other cases -- one of the problems is the small but present number of lab screw-up and fraud cases where someone didn't do the procedure right, or wasn't well trained, or faked the result, or just make a serious mistake -- for those cases, it is important to get the people who performed the test in to support the result, not just have a piece of paper there.

One will likely see more testimony in the states that have relied more heavily on certificates, but I don't expect there will be a huge amount of it. For both the defense and prosecution, there are strong incentives to keep trials short and not spend a lot of time on peripheral issues.

[Gerald Clough]

Well, let's keep this in proper perspective. The case is not about the merits of the certificate of analysis as having sufficient weight to prove up facts of the offense. It's about whether it was admissible as a business record. Business records are regularly admitted for all sorts of things. Driver license records, jail records, school records, and many others. Granted, the State depended on it to help prove the offense (mainly as to aggregate weight, the presence of cocaine not being in dispute), but Commonwealth General Law there makes the sworn lab report prima facia proof of all the results. So this is really a test of that specific state law on drug lab reports as evidence. Texas law, for instance, admits reports as business records, without the Commonwealth's specific reference to drug labs.

I didn't work much narcotics and so don't know if it's ever done here with drugs, but I don't recall being involved in a case in which the State depended on a summary report to prove up a conclusion on impression evidence. I can't imagine such a report being relied upon to be effective in overcoming even routine cross-examination. It will be interesting to see if the SCOTUS makes a distinction between analytical reports and other business records. I suspect they won't and will hold the report admissible, leaving arguments over the accuracy of the analysis as a trial matter. I could also see where they could take it case-by-case and might rule that, in this particular case, an issue at trial was so dependent on the quality of the analysis that, while the report was admissible, the defendant should have been able to explore the particulars with the analyst. I don't know, also, if this sole dependence on the lab certificate is normal there. It kind of sounds like the State at trial recognized a potential Crawford problem and declared the analyst unavailable on maternity leave. I don't know if they offered any more to show her unable to appear. Maternity leave alone may not be enough, if they get an adverse ruling and have to fall back on general law of hearsay and Crawford.

I don't see it having much practical effect on impression analysts. It's not a matter of each and every case resulting in testimony. Only a small fraction, even of individualizations, get to contested trial. Are you actually having your cases go to trial with only your report to prove up an identification?

[sharon cook]

[L.J.Steele]

Big words hurt my head...so what I got from this is that the defense is not making an issue of this in order to refute the findings of the analysis, but to be able to jack the analyst around in court

There have been lab scandals where the analysist wasn't well trained, didn't maintain the testing gear properly, didn't follow the protocols, and or didn't bother to do the test at all. A quick Google search can pull up several examples or you'll see them discussed in the SCOTUS petition and the amicus pleadings. A plain certificate hides all of these potential problems.

Hiring defense experts is not a solution. At least in CT and MA, there's very little money in the budget for defense experts. In the print field, we've seen cases like Cowans and Mayfield where defense or court appointed experts miss mistakes. Don't know if the same problems cropped up in the places with lab scandals, but I wouldn't be surprised.

And it isn't the defense's burden to prove that the test is wrong. It is the prosecutor's job to prove the case beyond a reasonable doubt, and that as the proponent of the evidence, it has to prove that it is reliable.

And for some lab tests, the material is consumed in the testing. It can't be retested.

I'm not sure why the resistance to having the person who performed the test subject to supporting it in court in those cases where the prosecutor or defense attorney want the testimony.

[Charles Parker]

L.J. Steele wrote:

There have been lab scandals where the analysist wasn't well trained, didn't maintain the testing gear properly, didn't follow the protocols, and or didn't bother to do the test at all. A quick Google search can pull up several examples or you'll see them discussed in the SCOTUS petition and the amicus pleadings. A plain certificate hides all of these potential problems.

I think a Google search will also pull up examples of bad testimony presented involving the same problems. Testimony does not ensure all of those problems will be revealed in the light of cross-examination.

L.J. Steele wrote:

And it isn't the defense's burden to prove that the test is wrong. It is the prosecutor's job to prove the case beyond a reasonable doubt, and that as the proponent of the evidence, it has to prove that it is reliable.

I always thought the prosecutor's job was to present the case and the judge was to determine if it was sufficient proof.

L.J. Steele wrote:

I'm not sure why the resistance to having the person who performed the test subject to supporting it in court in those cases where the prosecutor or defense attorney want the testimony.

It has been my experience that if the prosecutor wants a CJ/Forensic witness in court to testify, then that witness is going to be there. I do not know of any Forensic Examiner who was asked by the prosecutor to come testify that the examiner tell them "No---You can use my report".

In talking to a Chemist (blood alcohol) in my division I was told that when defense attorneys go to court it adds to the billing hours of the attorney at $100.00 an hour or more. Longer in court = more billing hours. Is it possible that some defense attorneys want this from a monetary standpoint?

Another question---how many of the bad acts make up the number of cases that go to court? .0001 of 1%

[L.J.Steele]

Testimony does not ensure all of those problems will be revealed in the light of cross-examination.

True enough, but not having a live witness would seem to make it even more likely that problems will be missed.

I always thought the prosecutor's job was to present the case and the judge was to determine if it was sufficient proof.

If you want to be pedantic, the finder of fact (judge or jury) has to determine whether the prosecutor has proven every essential element of the case beyond a reasonable doubt.

In talking to a Chemist (blood alcohol) in my division I was told that when defense attorneys go to court it adds to the billing hours of the attorney at $100.00 an hour or more. Longer in court = more billing hours. Is it possible that some defense attorneys want this from a monetary standpoint?

Probably not. There's always more work than there is time. If I'm not spending that hour in court, then I'm spending that hour at the office working on another client. There's a bit of frictional down-time between cases, but not alot if one is willing to do appointed counsel work. It likely isn't worth anyone's time to streach out a case just for the money.

And before you say $100/hr. looks good compared to your salary -- if you are an employee, you aren't paying for your own rent, utillities, equipment, reference materials, secretarial staff (if any), custodial staff (if any), retirement, malpractice/liability coverage and health insurance. And you likely get benefits like sick days, vacation, paid holidays, etc. If you are a defense attorney, or working as appointed counsel, all of that comes out of the hourly rate. (Which in Mass and CT rarely can reach $100/hr. -- the typical rate is much lower.)

You also likely get paid regularly. Last summer, the agency which pays appointed counsel ran out of money at the end of the fiscal year. It took three months to get a supplemental bill, during which none of those folks got paid. (Worse yet, at the time, Mass only allowed quarterly billing, so those folks hadn't been paid for 6 months.)
See http://www.bluemassgroup.com/showDiary. ... aryId=8087

A couple of years back, the Mass. attorneys taking appointed counsel work threatened to stop taking those cases due to the low pay rates (at the time, the third lowest in the country).
http://blogs.law.harvard.edu/ethicalesq/2003/07/27
http://www.publiccounsel.net/Administra ... Report.pdf
The upshot was somewhat improved rates, but still probably less than many carpenters or car mechanics charges per hour.

Again, read the SCOTUS pleadings, read the amicus pleadings -- this is about making sure that defendants recieve a fair trial, not about making things harder for you folks, or creating a windfall for attorneys.

[Charles Parker]

L.J. Steel Wrote:

If you want to be pedantic, the finder of fact (judge or jury) has to determine whether the prosecutor has proven every essential element of the case beyond a reasonable doubt.

Pedant (pedantic) 1. One who pays undue attention to book learning and formal rules without having an understanding or experience of practical affairs; a doctrinaire. 2. One who exhibits his learning or scholarship ostentatiously: “a pedant, who reads only to be called learned”

The American Heritage Dictionary of the English Language, copy right 1978.

OUCH. You may be right and sometimes I require too much precision. I knew the minute I read your statement that it was imprecise and heck you admitted it was imprecise. So why correct it? A lot of people who come to this site may not have the education and training that you have and when they read a statement or a comment that is imprecise they might have a tendency to accept it as being precise. I want to present a different version. I want to present that not everything I say, you say, CLPEX says, or all the other experts that are currently floating in and out of this forum say is the absolute truth and our statements should be looked at carefully. Truth can be a wispy creature that can take on different forms depending on the person presenting it.

Also when I see an imprecise statement I have a few choices. I can blow it off and let it go or I can challenge it. Most I blow off because they are beyond an easy proof and would take citations, references and hours of writing to present properly. You presented an easy target (sorry about that). If you do not want some pedantic correcting an imprecise statement. Don't make them.

If sometimes correcting imprecise statement is pedantic, then I pled guilty of being pedant.

I must thank-you though as you have given me the word of the day for my next Toastmasters Meeting.

I have no problem with the hourly rate or charge by most attorneys. I realize the costs that go into a practice. I actually have friends who are attorneys. My point was that not all attorneys are about truth, justice and the American way. Just as the Forensic Discipline have folks that need to go away because of the ethics, morals, training etc, so does the Law Profession have some that are not up to snuff and motives may not be in the direction of their client.

I think this whole issue before SCOTUS will not affect Latent Prints one way or the other or at the very most have a small impact. If a prosecutor wants you to come to court you are going to court----trust me on that one.

I have read amicus curiae briefs and my take on them are that they are presentations by both sides and the attorneys focus on the facts and arguments most favorable to their clients. Noticed I hi-lighted arguments. The ones I have read are mostly just arguments and very little facts. One side’s beliefs referenced on paper vs another side beliefs referenced on paper.

[Kasey Wertheim]

Update:

Court weighs nature of lab evidence

By Joan Biskupic, USA TODAY
WASHINGTON — The Supreme Court heard arguments Monday in a case that could have great impact because of prosecutors' widespread reliance on forensic evidence. The justices appeared open to ruling that lab workers must be available for cross-examination when states introduce drug, blood or other forensic reports at trial.
"Introducing forensic laboratory reports (without live witnesses) is the modern equivalent of trial by affidavit," said Stanford University law professor Jeffrey Fisher, representing Luis Melendez-Diaz, who was convicted of cocaine trafficking. Fisher challenged a Massachusetts policy, similar to others nationwide, that allows forensic analysts to submit certificates — here, a report on the authenticity and quantity of cocaine seized — without testifying.

SUPREME COURT: Court denies appeal over victim impact evidence

Massachusetts Attorney General Martha Coakley countered that forcing lab workers to testify would be costly and time-consuming. "Misdemeanor drug prosecutions would essentially grind to a halt," she said.

The question is whether lab reports should be considered "testimonial," rather than objective public records. If they are testimonial, they would be subject to the Sixth Amendment right to confront witnesses.

In recent years, the court has more broadly interpreted the right to confront witnesses. Justice Antonin Scalia, who was among those sympathetic to Melendez-Diaz's claim, has taken the lead in making it harder for witnesses' statements to be introduced without testimony.

Thirty-five states are siding with Massachusetts. One of the groups backing Melendez-Diaz, the National Innocence Network, says forensic evidence is wrongly assumed to be infallible. The group asserts that in most of the exonerations it has obtained, forensic errors, such as blood type testing, played a key role in conviction.

The justices seemed aware of the case's scope.

"Labs are backed up with DNA," Justice Anthony Kennedy said. "This is a very, very substantial burden if we tell every state … that in every drug case the state must produce the expert."

Yet Kennedy also noted that California, "a huge state with many, many drug prosecutions" is among the handful of states that already require analysts' testimony, and it "seems to get along all right."

Justice Ruth Bader Ginsburg asked why it was not enough that a defendant can subpoena lab workers if questions about tainted evidence arise.

Fisher said the prosecution should bear the burden of putting on witnesses for its assertion of the facts. "We would vigorously oppose any attempt to shift the burden on the defense to call witnesses like that," Fisher said.

Ginsburg also challenged Coakley's prediction of a congested system. "There are going to be a large number that wash out because they are plea bargained," Ginsburg said, adding that in many other cases the defense will accept the lab report.

When Coakley minimized the chance of bad convictions arising from lab reports, Justice Stephen Breyer expressed disbelief: "Aren't there some things I read in the paper … about these laboratories in various places, and they lost the results, they got it all wrong? That just doesn't happen?"

Find this article at:
http://www.usatoday.com/news/washington ... ourt_N.htm

[Bill]

I wish I had been paying closer attention. I could have taken the Metro into town and listened to the arguments.

I had been trying to follow this case and it got onto the docket while my attention was somewhere else.

I wonder if any other forensic examiners were present.

Bill