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Will the US Supreme Court Reverse Itself on Defense Examination of Crime Lab Techs?

Last week, we pondered the trustworthiness of crime labs in Texas – or more accurately, how inaccurate their results can be.  One good bit of news in all that mess is the ruling of the United States Supreme Court in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), where just this summer the Highest Court in the Land decided that criminal defense attorneys could cross-examine lab techs on their lab reports.

For many, it was shocking that defense attorneys weren’t already allowed the chance to question lab technicians on the witness stand about their lab results.  (One more example of how CSI isn’t based in reality.)  Well, here’s something even more shocking: the U.S. Supreme Court may change its mind.

That’s right.  The Supreme Court may take back the right of a defense attorney to cross-examine crime lab pros. 

Melendez-Diaz was just argued this summer.  (Interestingly, Massachusetts’ Martha Coakley argued on behalf of the prosecution – you can watch the oral arguments at Oyez.org.  Yes, this is the same Martha Coakley that is rumored to be losing her battle with Republican Scott Brown in tomorrow’s special election to fill Teddy Kennedy’s vacant Senate seat.)   

Well, the U.S. Supreme Court granted – and heard – oral argument in another case just last week:  Briscoe v. Virginia (07-11191).  Briscoe is a consolidation of two cases, and it was argued by the Virginia Solicitor General for the prosecution.  The two cases in Briscoe both dealt with “certificates of analysis” from state crime labs without any forensic scientists taking the witness stand at the defendants’ trials.  At issue, can the prosecution present evidence of illegal drugs (which is what the certificates claimed were found) without calling the human beings who did the forensic testing? 

In these situations, criminal defense attorneys have to make a decision – should they stipulate to the certificates as being truthful, without questioning the lab techs?  Sometimes, this may be smart.  Sometimes, a good defense lawyer wants that crime lab tech on the stand.

What Will Happen to Melendez-Diaz now? 

There are critics who argue that Melendez-Diaz was a wrong decision, that it was decided too fast and without sufficient consideration of the expense and confusion that forcing forensic technicians out of their labs and into courtrooms would raise.  They’re excited that the Supreme Court will correct what they see as an error — particularly with Justice Sotomayor on the court now. 

However, there are a great many criminal defense attorneys that aren’t happy about these rumblings.  As Justice Scalia pointed out during last week’s Briscoe arguments, not putting those crime lab reports up for cross-examination is tantamount to “trial by affidavit.” 

Without examination, these untrustworthy crime lab results are merely “trial by affidavit.”

Look, there’s a reason to put a human on the stand in these situations.  Crime lab analysis is scientific in nature and there aren’t many scientists in the courtroom, usually.  Those pieces of paper that pop out of labs are already known to be unreliable, and defense attorneys MUST have the opportunity to have that crime lab technician or forensic scientist on the witness stand to explain what was done, and why the results are (or aren’t) accurate. 

We cannot bow to worship crime lab reports as inviolate.  Let us only hope that the United States Supreme Court uses Briscoe to support Melendez-Diaz, and not to erase the victory for justice that Melendez-Diaz represents.

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