Four years after Crawford v. Washington revolutionized Confrontation Clause jurisprudence, at least one major issue remains completely unsettled:  the admissibility of lab reports and similar records which have been routinely admitted at trials over the years.  The Ohio Supreme court tackled that issue a year ago in State v. Crager, where the lab analyst who’d conducted the DNA tests was on maternity leave at trial, and the prosecution had presented another analyst who based his testimony on her report.  The 3rd District had tossed the conviction, holding that the lab report was testimonial evidence under Crawford, and thus required the testimony of the person who actually performed it.  The Ohio Supreme Court reversed, broadly holding that “records of scientific tests” aren’t testimonial.  (I discussed Crager here.) 

Now the US Supreme Court is going to take a stab at it, and heard oral argument on Monday in Melendez-Diaz v. Massachusetts.  The evidence there was a little more routine:  a simple drug test showing that the drugs seized from the defendant were cocaine.  The Massachusetts courts held that the report was “akin to a business record and the confrontation clause was not implicated in this type of evidence.”

The Court had twice before rejected the invitation to wade into this swamp, because a swamp it is.  The major problem is in defining exactly what type of report an extension of Crawford would apply to.  A DNA analysis or a lab report showing the presence of drugs is one thing.  But how about a certificate that a breathalyzer had been properly calibrated; would the state need to bring in the individual who calibrated it?  How far do you go?

Some of the justices on Monday were clearly vexed by that question, with Alito at one point wondering if the defendants were “arguing for an empty exercise”:  many such reports are pretty much pro forma, and offer little or no opportunity for fruitful cross-examination.  Ginsberg suggested that if the testimony was so valuable to the defense, it could simply call the witness to the stand in its own case.  Jeff Fisher, the Stanford law professor arguing the case for the defendant, correctly pointed out that this wouldn’t be much different than allowing the state to plunk down a bunch of affidavits at trial, and then leave it up to the defense to call the witnesses it wanted to confront.

One issue that didn’t make its way into the argument was the one the Ohio Supreme Court had hung its hat on in Crager:  that cross-examination really isn’t essential because no one would question the integrity of BCI’s results, because “BCI maintains its independence to objectively test and analyze the samples it receives.”  This assertion reached a ludicrous crescendo in visiting Judge Kline’s concurrence,

absent evidence to the contrary, it should be presumed that the primary purpose behind any county prosecutor’s request for DNA analysis is to seek justice, not merely to prosecute or convict a defendant. . . the prosecutor asked BCI for the DNA analysis through glasses of justice, not glasses of conviction.

As I’d mentioned at the time, the notion that state-run scientific investigation units are uniformly objective can be dispelled by plugging “corrupt crime labs” into Google.  The reason this didn’t come up on Monday was probably because the National Innocence Project had filed an amicus brief, which you can get here, which recounted in detail the many instances of labs dummying up results.

So what’s going to be the result in Melendez-Diaz?  Hard to say.  Scalia, the author of Crawford and the most steadfast supporter of an expanded reading of the Confrontation Clause, is a clear vote for reversal; as he usually does, he spent most of the argument tossing up softball questions to the petitioner, and pointing out arguments that he felt they should be making.  Souter and Stevens seemed similarly skeptical of the state’s position.  Kennedy initially appeared concerned that a reversal would unduly burden the states, but that concern dissipated as the hearing went along, with him concluding that it was “a very important point” that California, which requires live testimony on lab reports, hadn’t experienced any problems.  The state’s position wasn’t helped on this when its attorney said that California was one of 35 states supporting Massachusetts in the case, only to be corrected by Chief Justice Roberts that she was wrong about that.

I’d anticipate a reversal here, although how far the Court will go is another matter; will it require, for example, testimony about breathalyzer calibration?  We’ll find out when the opinion comes down, probably this winter.