Early last year, in State v. Crager (discussed here), the Ohio Supreme Court held that the testimony of laboratory analysts wasn’t subject to Crawford v. Washington:  the defendant did not have a right to confront and cross-examine the person who actually performed the test.  A few months ago, in Melendez-Diaz v. Massachusetts (discussed here), the US Supreme Court held that Crawford did in fact apply to laboratory tests, and that the state could not simply submit an affidavit of the test results:  the defendant was entitled to cross-examine the tester.

Crager had been appealed to the high court.  Two weeks after Melendez-Diaz, the Court did what’s known in appellate parlance as a GVR on Crager:  it granted certiorari, vacated the decision, and remanded the case back to the Ohio Supreme Court for further consideration in light of Melendez-Diaz. 

At least one person thinks that’s not going to change the outcome in Crager. 

In an article in the Plain Dealer last week discussing the ramifications of Melendez-Diaz on Crager, the head of the appellate division of the Cuyahoga County Prosecutor’s told them

she is confident the Ohio Supreme Court will not overturn the Crager decision and that the state will dodge the calamitous predictions. Even though the DNA analyst who testified in the Crager case was not the one who performed the test, the defendant still had a chance to confront a witness in court, and this should satisfy the constitutional right to confrontation…

When I first read this, I chalked it up to whistling past the graveyard.  While there are examples of a lower court re-affirming a decision after a GVR, more commonly the court will take the hint and reverse; not doing so has historically been an invitation to a Supreme Court smackdown later on. 

On second thought, though, there may be something to it.  In Melendez-Diaz only an affidavit from the analyst was offered, while in Crager the analyst, albeit not the one who’d actually performed the tests, had testified.  The idea that the confrontation right is satisfied as long as somebody testifies, even if it’s not the person who performed the test, might be enough for the Ohio Supreme Court to hang its hat on, especially given the problems that could ensue if the person who actually performed the test is required to appear. 

Take drug cases, for example.  Ohio has what’s called a “notice and demand” statute:  under RC 2929.51, if the State provides a copy of the lab report (along with certain formalities) and the defense doesn’t demand live testimony of the analyst within seven days after that, the report can be admitted into evidence.  Melendez-Diaz specifically approves of this procedure; a defendant can waive the confrontation right, and does so by failing to demand live testimony. 

Assuming that the analyst who actually performed the test has to testify, though, this introduces a new factor into a defense attorney’s decision to demand testimony.  Here in Cuyahoga County, it’s not a big deal:  most tests are performed by the police Scientific Investigation Unit, which is in the same building as the courthouse.  (Which is probably why I’ve never had a drug case where the prosecutor complied with 2929.51; he’ll ask me to stipulate to the results on the day of trial, and if I don’t, he can have the analyst there in five minutes.)  But in many smaller counties, the test is performed by the State Bureau of Criminal Investigation.  Having the analyst who actually performed the test appear in court could be a real handicap to the prosecution in that situation.

The same might apply to coroner’s reports.  Crager relied heavily on State v. Craig, which had rejected a Crawford challenge to testimony by one coroner about an autopsy performed by a different one.  While at first glance there appears to be no difference between the two situations, there might be.  Keep in mind that Crawford applies only to “testimonial” statements, which the Court has broadly defined as those made for purposes of prosecution.  The Crager court’s argument that DNA tests didn’t fit within that category was a tough sell, but the argument could be made that an autopsy, which is required by law in all “unusual” deaths, isn’t really “testimonial” within the meaning of Crawford.  Plus, a coroner’s office is generally regarded as more independent than, say, agencies specifically set up by the State to perform scientific tests used in criminal cases, and the potential for abuse in the latter situation received a good deal of attention in Scalia’s majority opinion in Melendez-Diaz.  Still, anyone who’s followed the exploits of the Los Angeles coroner’s office knows there’s plenty of room for abuse there, too.

The major impediment to reaffirming Crager by narrowly reading Melendez-Diaz, though, is the latter opinion’s thorough debunking of the notion that cross-examination of the person who actually performed the test isn’t necessary, because the test is simply a compilation of objective observations.  After noting that, for the drug tests at issue in Melendez-Diaz, “at least some of that methodology requires the exercise of judgment and presents a risk of error that might be explored on cross-examination,” Scalia continues:

The same is true of many of the other types of forensic evidence commonly used in criminal prosecutions. “[T]here is wide variability across forensic science disciplines with regard to techniques, methodologies, reliability, types and numbers of potential errors, research, general acceptability, and published material.” National Academy Report S–5 (discussing problems of subjectivity, bias, and unreliability of common forensic tests such as latent fingerprint analysis, pattern/impression analysis, and toolmark and firearms analysis).  Contrary to respondent’s and the dissent’s suggestion, there is little reason to believe that confrontation will be useless in testing analysts’ honesty, proficiency, and methodology—the features that are commonly the focus in the cross-examination of experts.

Given that, it’s difficult to read Melendez-Diaz other than as requiring testimony by the same expert who performed the test.  That’s certainly going to present obstacles to the prosecution:  people leave jobs, people move, or people simply aren’t available, even in the short time frame that most criminal cases involve.  But Melendez-Diaz doesn’t seem to offer any other alternative.