Wisconsin Department of Justice doesn’t “get it”

The Wisconsin Department of Justice doesn’t seem to get what Melendez-Diaz is about. It’s not about some­one being in court to “read” the results, it’s about being able to effec­tively cross-examine the actual ana­lyst who per­formed the tests spe­cific to the case at trial.

“We don’t think the Melendez-Diaz deci­sion will have a sig­nif­i­cant impact on Wisconsin’s crim­i­nal pros­e­cu­tions,” said Bill Cosh, a spokesman for the state Department of Justice. “State pros­e­cu­tors nor­mally present live tes­ti­mony from the foren­sic sci­en­tists who per­form actu­ally lab­o­ra­tory tests, and Wisconsin law pro­vides for use of a sub­sti­tute expert wit­ness in cer­tain instances. We believe the Wisconsin law is con­sis­tent with Melendez-Diaz but we expect defen­dants to chal­lenge that law in court.”

A “proxy” ana­lyst can only tes­tify about what they WOULD have done, or what the lab pro­to­cols and pro­ce­dures are or were. They have no idea if that is what actu­ally hap­pened in the case.

I would also expect the “sub­sti­tute ana­lyst” aspect of Wisconsin state law to be chal­lenged as well under the Melendez-Diaz ruling.

Original arti­cle posted here:

Wisconsin legal experts are still try­ing to assess the effects of a recent U.S. Supreme Court deci­sion that man­dates lab tech­ni­cians appear in court to defend their work.
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In a June 25 deci­sion, Melendez-Diaz v. Massachusetts, the court ruled, under the Sixth Amendment right of con­fronting wit­nesses, that the author of a crime lab report can be sum­moned to tes­tify as to the verac­ity of the report.

Wisconsin has two labs that con­duct tests for law enforce­ment agen­cies: the State Hygiene Lab of Wisconsin and the State Crime Lab.

The hygiene lab con­ducts about 25,000 blood tests every year and about 3,000 tox­i­col­ogy tests.

The Crime Lab han­dles about 18,000 cases, some involv­ing more than one test.

Under the present sys­tem, the job of tes­ti­fy­ing about evi­dence usu­ally falls to a lab super­vi­sor who can speak to the verac­ity of the test and the method­ol­ogy, espe­cially in those cases where tests were con­ducted by more than one analyst.

In major court cases, the ana­lyst is usu­ally called to testify.

But if only a frac­tion of the 40,000 tests require a tech­ni­cian in the court­room, the result could be costly.

“We don’t think the Melendez-Diaz deci­sion will have a sig­nif­i­cant impact on Wisconsin’s crim­i­nal pros­e­cu­tions,” said Bill Cosh, a spokesman for the state Department of Justice. “State pros­e­cu­tors nor­mally present live tes­ti­mony from the foren­sic sci­en­tists who per­form actu­ally lab­o­ra­tory tests, and Wisconsin law pro­vides for use of a sub­sti­tute expert wit­ness in cer­tain instances. We believe the Wisconsin law is con­sis­tent with Melendez-Diaz but we expect defen­dants to chal­lenge that law in court.”

The sub­sti­tute wit­ness may become an issue.

“If the ana­lyst did the test and wrote the report then they will have to be there,” said Neenah attor­ney Rob Bellin. “I know it has been a long-standing tra­di­tion to have the super­vi­sor tes­tify, but based on what I have seen I think Wisconsin will have to fol­low it.”

Bellin said the rul­ing could be more of a prob­lem for the hygiene lab, whose blood alco­hol tests are relied upon to pros­e­cute drunken dri­ving cases should attor­neys decide to make mis­chief by chal­leng­ing blood-alcohol con­tent results.

Laura Liddicoat, direc­tor of the foren­sic tox­i­col­ogy pro­gram at the hygiene lab, said she doesn’t fore­see any prob­lems. She is the super­vi­sor who is usu­ally called upon to tes­tify on behalf of the lab. She said that process would continue.

“We are not expect­ing too much of a change,” she said. “The ini­tial chat­ter from an attor­ney I spoke to feels that we still have good case law in Wisconsin.”

But that pro­ce­dure is bound to be challenged.

“There are some motions already being filed in Wisconsin and they will have to fol­low the law,” Bellin said. “I don’t see how they can’t.”