More Melendez-Diaz Whining

No the sky won’t fall, but foren­sic sci­en­tists are going to have to do a more com­plete job. Not only ana­lyz­ing the evi­dence, and writ­ing reports, but also explain­ing their results to the trier of fact, and defend­ing their opin­ions against cross-examination.

It’s inter­est­ing to see pros­e­cu­tors so wor­ried about this rul­ing. Maybe not being able to mis­rep­re­sent what the lab reports mean, with the actual lab ana­lyst present, is a concern?

Original arti­cle posted here:

Supreme Court Requires Lab Analysts to Testify: Now What?

By Rebecca Waters

In early July we reported on the out­come of the con­tentious Melendez-Diaz v. Massachusetts Supreme Court deci­sion requir­ing foren­sic ana­lysts to be avail­able to tes­tify if their reports are admit­ted as evi­dence. The Court left it to indi­vid­ual states to sort out the logis­tics of call­ing ana­lysts to tes­tify, and it is too soon to see the full ram­i­fi­ca­tions of this deci­sion. However, with a few weeks to digest this news, we’ve had some time to con­tem­plate what this rul­ing will mean.

“It’s a train wreck,” said Scott Burns, exec­u­tive direc­tor of the National District Attorneys Association. “To now require that crim­i­nal­ists in offices and labs that are already bur­dened and in states where bud­gets are already being cut back, to travel to court­rooms and wait to say that cocaine is cocaine—we’re still kind of reel­ing from this decision.”

In Virginia, defense attorney’s jumped on the oppor­tu­nity to test this deci­sion, and the effects have been felt. “In recent weeks, sev­eral cases in Hampton, includ­ing a three-day trial in a sig­nif­i­cant drug case, had to be post­poned because the crime lab ana­lysts weren’t on hand,” the Daily Press reported. “In Virginia Beach on Thursday, a DUI case had to be reduced to reck­less dri­ving because an ana­lyst wasn’t around.”

“If sci­en­tists had to appear at all the drug cases and DUI cases, you can imag­ine the chaos that would result,” Hampton Commonwealth’s Attorney Linda D. Curtis told the Daily. “If they’re required to travel all over the Peninsula and the Southside, they won’t be in the lab doing analy­ses. … So this could poten­tially cre­ate a bot­tle­neck in the court­room and the labs.”

Richard Meehan, an attor­ney in Bridgeport, Connecticut, agrees. Noting in his Norwich Bulletin col­umn, “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.”

The Sky Will Not Fall
Not every­one agrees that this deci­sion will crip­ple crime labs and com­pound back­logs, how­ever. The Allegheny County Medical Examiner in Pennsylvania, Dr. Karl E. Williams, sees this as no more than an irritation.

“I am, of course, con­cerned with any­thing being added on to the work of my crime lab, because every­body there is over­worked and under­paid,” Williams told the Pittsburgh Tribune-Review. “But in most cases, I don’t think defense attor­neys will bring in a foren­sic ana­lyst to court unless they have a very com­pelling rea­son. We’ll just have to wait and see, but I don’t pre­dict it will be a big problem.”

Duquesne University law pro­fes­sor Bruce Antkowiak con­curs, believ­ing that few defense attor­neys would want to put a sci­en­tist on the wit­ness stand.

“To a jury, the most com­pelling evi­dence is the sci­en­tific evi­dence,” Antkowiak told the Tribune-Review. “As a defense attor­ney, the last thing you want is to put that nice, impres­sive sci­en­tist on the stand to go into great detail and show blown-up pho­tographs of evi­dence that will just fas­ci­nate the jury, and it’s stuff you prob­a­bly aren’t even con­test­ing in the first place.”

“The sky will not fall after today’s deci­sion,” Justice Antonin Scalia wrote in his major­ity opin­ion. And many agree that this deci­sion is in fact nec­es­sary in light of flawed foren­sic science.

Melendez-Diaz and the NAS Report
In his opin­ion, Justice Scalia cited the recent NAS report which called into ques­tion the reli­a­bil­ity of foren­sic science—a band­wagon many have been happy to jump onboard. Rather than neu­tral sci­en­tific fact, crime lab reports are now viewed by the Court as indict­ments of the defen­dant and sub­ject to the restric­tions of the Sixth Amendment Confrontation Clause.

William C. Thompson, a pro­fes­sor of crim­i­nol­ogy at the University of California, Irvine, told the New York Times that recent crime lab scan­dals prove that live tes­ti­mony from ana­lysts is needed to explore poten­tial flaws in lab­o­ra­tory reports.

“The per­son can be inter­ro­gated about the process, about the mean­ing of the doc­u­ment,” Professor Thompson said. “The lab report itself can­not be inter­ro­gated to estab­lish the strengths and lim­i­ta­tions of the analysis.”

Meehan agrees but adds that often errors just win cases on tech­ni­cal­i­ties: “Drug screen­ing tests may be sci­en­tif­i­cally reli­able, in gen­eral, but the real­ity is under­fund­ing and increas­ing instances of human error in foren­sic lab­o­ra­to­ries can ren­der results unre­li­able. A renowned defense lawyer once noted in a speech that often, when there is no real fac­tual defense, a lawyer ‘plays for the fum­bles,’ look­ing for some foul up in the process to undo the best of state case.”

Peter Neufeld, co-director of the Innocence Project, rejoiced in the deci­sion but doesn’t think the Court went far enough.

“It will take some time to sort out how the case will affect future pros­e­cu­tions. But we should be focused instead on what the case says about the state of foren­sic sci­ence in this country—and how much remains to be done to ensure that our crim­i­nal jus­tice sys­tem relies on solid sci­ence,” he wrote in an opin­ion piece for the Tennessean.

“The Supreme Court deci­sion rec­og­nized the prob­lem with­out address­ing it,” he added, cit­ing the NAS report’s rec­om­men­da­tion for an inde­pen­dent, science-based fed­eral agency to reg­u­late foren­sic sci­ence. “Without under­ly­ing research and stan­dards, nobody knows how reli­able the sci­ence is. That is why we need a National Institute of Forensic Science.”

Solutions
“The deci­sion in Melendez-Diaz v. Massachusetts will have rel­a­tively lit­tle impact on pros­e­cu­tors in Michigan, which is among a minor­ity of states that already require lab tech­ni­cians to tes­tify about any test results they pro­duce,” Brian Dickerson wrote for the Detroit Free Press. “But it effec­tively pre­cludes leg­is­la­tion to ease that bur­den on Michigan State Police sci­en­tists, who are cur­rently log­ging 15 or more hours of over­time a week to process an enor­mous back­log of foren­sic evidence.”

Dickerson agreed, that the sky will not fall due to the Melendez-Diaz deci­sion. “But the cost of putting those who man­u­fac­ture, sell, and use illicit drugs behind bars rose sig­nif­i­cantly this week. And now those of us who pay the freight have even more rea­son to won­der if we’re get­ting our money’s worth,” he writes.

Michigan, how­ever, may hold the key to deal­ing with the bur­den imposed by the Court’s deci­sion. When the state passed .08 BAC leg­is­la­tion, law enforce­ment was encour­aged to ask for drug and blood screen­ing on all blood draws of sus­pected impaired dri­ving offend­ers. This caused a dra­matic spike in the case­load for blood/alcohol analy­sis at the Michigan State Police Forensic Science Division’s Toxicology Laboratory.

Due to Michigan’s require­ment for ana­lyst tes­ti­mony, lab sci­en­tists were forced to spend a sig­nif­i­cant por­tion of their work­day trav­el­ing and tes­ti­fy­ing in courts across the state. The Michigan State Police decided to imple­ment a video tes­ti­mony pro­gram allow­ing ana­lysts to tes­tify from their own labs via video trans­mis­sion. Video tech­nol­ogy even allows ana­lysts to sched­ule mul­ti­ple tes­ti­monies with var­i­ous courts across the state on the same day.

After mul­ti­ple video tes­ti­monies uti­lized by courts across the state, over­all sav­ings are esti­mated at approx­i­mately $1,100 per tes­ti­mony. This tech­nol­ogy has also saved the state many staff hours (typ­i­cally wasted in travel time), uti­liz­ing the tech­nol­ogy to reduce the time sci­en­tists are out of the lab to 30 min­utes instead of 14 hours, the Michigan Office of Highway Safety Planning reports.

After one full year of oper­a­tion, the State Police Forensic Science Laboratory expe­ri­enced a decreased alco­hol back­log of approx­i­mately 150 — 200 cases from a high of 300 cases, with a turn­around time of approx­i­mately 5 days, from a high of 14 days. The tox­i­col­ogy (drug) back­log decreased to approx­i­mately 600 cases from a high of 1,000 cases with a turn­around time of 60 days, from a high of 120 days.

Virginia, too, might have a solu­tion in the form of a state Supreme Court deci­sion allow­ing the pros­e­cu­tion to give the defense notice before the trial if they intend to use a lab report. This gives the defense a chance to request the analyst’s tes­ti­mony prior to the trial. The U.S. Supreme Court will be hear­ing a case in their next term to deter­mine whether this rul­ing is con­sis­tent with the require­ments of Melendez-Diaz.

Depending on how states choose to inter­pret the Court’s deci­sion. Creative solu­tions like those in Michigan and Virginia could mit­i­gate the bur­den on crime labs.