Almost two years ago, in State v. Crager (discussed here), the Ohio Supreme Court held that having a DNA analyst testify to tests that were actually performed by someone else didn’t violate the Confrontation Clause, as the US Supreme Court interpreted it in Crawford v. Washington.  Yesterday, the latter body, in Melendez-Diaz v. Massachusetts,  essentially told the former they got it wrong. 

The case is relatively simple.  Melendez-Diaz was arrested for drug possession.  The drugs were analyzed by the police lab, andthe prosecution at trial submitted “certificates of anlaysis” which stated that the seized items had been examined and “found to contain:  Cocaine.”  This procedure was permitted by Massachusetts law, and constituted prima facie evidence that the items were narcotics.

This would also seem to present a pretty simple legal question — it’s hard to see how you could get a more blatant violation of the Confrontation Clause than by allowing an affidavit from a witness to be submitted in lieu of live testimony.  But four justices joined in the dissent by Justice Kennedy (only the 2nd time this term that the latter has found himself on the short end of a 5-4 vote), drawing a distinction between “laboratory analysts who perform scientific tests” and ”more conventional witnesses,” and arguing that the Court’s ruling swept away nearly a century of accepted law “governing the admission of scientific evidence.”

As Justice Scalia points out in the majority opinion, though, the vast majority of those decisions followed the Court’s decision in Ohio v. Roberts in 1980, which brought the Confrontation Clause in line with the hearsay rule:  unconfronted testimony was admissible as long as it bore “indicia of reliability.”  Crawford overruled Roberts, so those decisions aren’t of much signficance.

Scalia concentrates most of his fire on the dissent’s argument, which is an echo of the five-member majority in Crager, that confrontation isn’t necessary because of the inherent reliability of such evidence, an argument that reached a crescendo in Crager with visiting Judge Kline’s concurrence dismissing the very idea that the such evidence might be suspect, culminating with the observation that “the prosecutor asked BCI for the DNA analysis through glasses of justice, not glasses of conviction.”

Maybe, maybe not, it turns out.  As I’d pointed out on previous occasions, the most recent of which was Wednesday, those who believe anymore in the infallibility of police forensic labs possess a naiveté that borders on the childlike.  Scalia cites the National Innocence Project amicus brief chronicling instances of fraud and dereliction, and notes that

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.

The most effective way to prevent such fraud, as well as to ferret it out, is by having the analyst subject to cross-examination.

While Melendez-Diaz obviously negates Crager’s holding that reports of laboratory tests are not subject to Crawford, the impact beyond that is less clear.  Ohio has a statute, RC 2925.51, similar to the Massachusetts one, permitting a lab report to be used to establish quantity and identity of drugs, with one important distinction:  under the Ohio law, the prosecutor has to furnish the report to the defense, and the defense waives the right to live testimony if it does not demand it seven days prior to trial.  Although some have argued that this unfairly puts the onus on the defense, that position was rejected by the Ohio Supreme Court in February in State v. Pasqualone, and Scalia’s opinion confirms that there’s no problem with it:  the defendant is always required to assert his Confrontation Clause objection, and notice and demand statutes simply govern the timing of when he must do so. 

Moreover, it’s unlikely that Melendez-Diaz is going to lead to analysts routinely having to testify.  I’ve found that live testimony can be helpful on certain occasions — for example, demonstrating to a jury the difficulties with “residue” cases — but other than that, why would any defense attorney want the prosecutor to spend additional time proving that the substance was drugs, when the defense has no way to counter it?

There are a couple of other issues that could pop up here, and although Scalia’s opinion addresses both (in the same footnote), it doesn’t answer them definitively.  One is whether the state would have to bring in all the witnesses who could testify as to the chain of custody.  The opinion notes that chain of custody goes to the weight, not the admissibility, of evidence, but then notes cryptically that “it is up to the prosecution to decide what steps in the chain of custody are so crucial as to require evidence; but what testimony is introduced must (if the defendant objects) be introduced live.”  Another question arises in the context of DUI prosecutions:  would the state need to bring in the person who calibrated the breathalyzer?  The opinion states that “documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records,” but gives no further clue as to when they wouldn’t so qualify.

There will be some questions that still have to be answered, and it may well turn out that the primary effect of Melendez-Diaz in Ohio will be the rejection of Crager’s unwarranted exaltation of the infallibility of state-sponsored forensic experts.  Frankly, if that’s all it accomplishes, it will have been well worth it.