Oral argument: Nov. 10, 2008
Appealed from: Appeals Court of Massachusetts (July 31, 2007)
CONFRONTATION CLAUSE, SIXTH AMENDMENT, CRAWFORD v. WASHINGTON, DRUG TESTING, TESTIMONIAL EVIDENCE
This case involves the application of the Confrontation Clause of the Sixth Amendment to police laboratory reports. Police stopped Luis Melendez-Diaz outside of a Boston area K-Mart on suspicion of drug possession. He was arrested with two other individuals and driven to the police station. On the way to the station, the police observed Melendez-Diaz and one of his cohorts making unusual movements in the back seat. They later conducted a search of the cruiser and found nineteen plastic bags containing a powdery substance, and $320 on the floor of the vehicle. The Massachusetts Department of Public Health’s State Laboratory Institute tested the bags and found that they contained cocaine. A jury found Melendez-Diaz guilty of distributing and trafficking in cocaine. On appeal, Melendez-Diaz argued that the lab reports were “testimonial” in nature and that the Confrontation Clause of the Sixth Amendment required that he be allowed to cross-examine the analysts who prepared them. Massachusetts argued that the drug analysis reports were not testimonial within the meaning of the Confrontation Clause. If the Supreme Court finds that lab reports are “testimonial,” analysts will be required to give in-court testimony about the weight and composition of drugs used as evidence in criminal trials. This has the potential to create substantial costs for courts and testing facilities already struggling with limited resources, but might also increase the reliability of scientific evidence presented in criminal trials.
Whether a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004).
Whether a Massachusetts state law violates the Confrontation Clause of the Constitution by allowing laboratory reports, signed under oath, to serve in a criminal trial as prima facie evidence of the composition, quality, and net weight of a drug without live testimony from the analyst?
On November 15, 2001, the loss prevention manager of a Dorchester K-Mart store called the Boston police to report that a store employee, Thomas Wright, was engaging in suspicious activities. The manager told the police that Wright would sometimes go for short rides in a blue Mercury Sable sedan after he received or made phone calls, only to return ten minutes later.
That same day, the police set up surveillance in front of the K-Mart. They observed Wright coming out of the store and getting into a blue Mercury Sable sedan. The police also saw that there were two other individuals in the front section of the car, namely the driver, Montero, and the Petitioner, Luis Melendez-Diaz. As Wright was getting out of the car and walking back toward the store, the police stopped and searched him, finding four bags containing a powdery substance. The police arrested all three individuals, and drove them to the police station. On the way to the station, the police observed Melendez-Diaz and Montero whispering in Spanish to each other, and making unusual movements in the back seat. Suspecting foul play, the police later conducted a search of the cruiser that had transported the three men to the station. In the back seat, the police found nineteen plastic bags containing a powdery substance, as well as $320 on the floor of the vehicle. They submitted these bags, as well as the four taken from Wright, to the Massachusetts Department of Public Health’s State Laboratory Institute for testing. These were analyzed and found to contain 22.16 grams of cocaine. At trial, the plastic bags recovered from Wright and the cruiser and the laboratory reports were introduced as evidence. The jury ultimately found Melendez-Diaz guilty of distributing and trafficking in cocaine.
Melendez-Diaz appealed the trial court’s decision, arguing that the lab reports were “testimonial” in nature, and that, because of Crawford v. Washington, 541 U.S. 36 (2004),the court could not introduce them without allowing the defendant to cross-examine the lab analysts who prepared them. Massachusetts argued that the Massachusetts Supreme Judicial Court had already decided in Commonwealth v. Verde, 827 N.E.2d 701 (Mass. 2005), that such drug analysis reports were not testimonial within the meaning of Crawford’s interpretation of the Confrontation Clause, and that therefore Melendez-Diaz had no right to cross-examine the lab analysts. The Massachusetts Appeals Court affirmed the trial court’s decision, and rejected Melendez-Diaz’s argument. The Massachusetts Supreme Judicial Court denied review of Melendez-Diaz’s appeal.
Drug analysis certificates are widely used in place of live testimony to establish the composition, quality, and quantity of drugs introduced as evidence in criminal trials. These certificates are an efficient means of providing juries with information they need, but they do not give defendants the opportunity to cross-examine the analysts about their conclusions. If the Supreme Court finds that forensic evidence reports are subject to the Confrontation Clause of the Sixth Amendment, it may impose substantial costs on the criminal justice system, but may also make strides towards increased reliability.
Confrontation at What Cost?
Forensic labs in the United States are often understaffed and overworked. Testing labs staffed by relatively few analysts already handle thousands of cases per year, and often face substantial backlogs. Thirty-five states and the District of Columbia argue that if analysts are required to leave their labs to testify to the results of their tests in every case, those backlogs could grow to unmanageable levels.
Along similar lines, The National District Attorneys Association (“NDAA”) argues that if the Supreme Court finds a confrontation right, it will cause substantial delays in the courts. Lab technician testimony could add time to trials and wreak chaos on court dockets. The NDAA also argues that the number of plea bargains could decrease significantly if confrontation is required. They reason that no rational defendant would plead guilty, knowing that the prosecution could only prevail at trial if an analyst appears to testify. As a result, the number of cases going to trial could increase dramatically and prosecutors could be forced to agree to lenient plea agreements. Additionally, the NDAA argues analyst testimony might cause such delays that a defendant’s right to a speedy trial would be denied, causing the charges against them to be dismissed. This could prove detrimental to the public interest by compromising public safety and eliminating an effective means of breaking the cycle of substance abuse that arrest and incarceration provide.
A group of law professors argue that the costs of finding a confrontation right are overstated, and that creative uses of technology can preserve the most critical aspects of confrontation while keeping costs manageable. One such idea is to have the court designate a day where interested parties may examine analysts and videotape their testimony before a judge and under oath.
Another Professor Richard Friedman argues that rights granted by the Constitution do not depend on the outcome of a cost-benefit analysis. Professor Freidman states that “[d]ispensing with confrontation because it would be too expensive is similar. . . to dispensing with the jury trial because a defendant is obviously guilty.” The Supreme Court has protected other rights of criminal defendants without resorting to a cost-benefit analysis in doing so. Where “[t]he Constitution prescribes a procedure for determining the reliability of testimony in criminal trials, [the courts] . . . lack authority to replace it with one of our own devising.
Would confrontation enhance the reliability of criminal convictions?
The NDAA argues that live testimony by analysts would provide little benefit because the issue in most trials is not whether the confiscated substance is in fact drugs but whether the defendant can be linked to the drugs. The benefit of analyst testimony might also be reduced because, with the tremendous caseload, there is “little chance” of an analyst having “any independent memory” of conducting any given test. However, the National Association of Criminal Defense Lawyers argues that live testimony is beneficial because witnesses on the stand “tend to think twice before engaging in overstatements or omission, to avoid being embarrassed or impeached.” Additionally, live testimony would allow juries to gauge the credibility of the analyst through “tone of voice, facial expressions, and general demeanor”
The Innocence Network argues that sound scientific procedures and methods “withstand even the most vigorous cross-examination,” but that confrontation could root out analysts who engage in “bad forensic practices and pseudo-science,” and thus reduce errors and wrongful convictions. The Innocence Network states that in more than 50% of the 200 exonerations it has been involved in, sloppy or misleading forensic evidence has been a factor in the wrongful conviction.
Forensic laboratories are not required to maintain accreditation with a scientific standards organization, although such organizations do exist. . While accreditation is no guarantee of reliable results, under the current system many forensic examiners have “little or no scientific background but are merely state law enforcement employees.” Some experts have used pseudo-science and fabricated numerical probabilities to give testing results more import than is properly due. Confrontation could help “dismantle misapplied or erroneous forensic evidence” by putting such practices up to the careful scrutiny of cross-examination.
The laboratory reports’ nature: testimonial or nontestimonial?
The Sixth Amendment to the Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .” Petitioner Melendez-Diaz relies on the Supreme Court’s decision in Crawford v. Washington, which defined “testimony” as “a solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Essentially, the Crawford court held that such “testimonial” evidence must be given in person, so that the defendant could confront the testifying witness.
Melendez-Diaz identifies two reasons the Supreme Court had previously given for the Confrontation Clause. The first is that by observing the witness on the stand during direct and cross examination, a jury can assess the credibility of such a witness. The second is to address the risk of abuse by the government if it is involved in producing testimonial evidence geared for litigation. Ultimately, Melendez-Diaz argues, the Confrontation Clause seeks to prevent the substitution of ex parte (one-sided) affidavits and examination in place of live testimony against the defendant. If such affidavits and examinations do exactly what a witness does on direct examination (i.e., give testimonial evidence), then live testimony must be used. Melendez-Diaz states that the state forensic analyst’s laboratory reports were affidavits because they were “[v]oluntary declaration of facts written down and sworn to by the declarant before an officer authorized to administer oaths . . . .” Moreover, Melendez-Diaz continues, these “affidavits” established that the substance found by the police was cocaine, making the lab reports “testimonial” under Crawford. The trial court had instructed the jury that it could find Melendez-Diaz guilty of possession cocaine based solely on these lab results. What the trial court should have done was allow Melendez-Diaz to cross-examine the forensic analysts that produced the lab reports; because of this failure, Melendez-Diaz concludes, his Confrontation rights were violated.
On the other hand, Respondent Massachusetts argues that the lab reports are not testimonial in nature. Confrontation, it contends, is required only for accusers, but drug analyses are based on entirely neutral facts that are non-accusatory. Drug analyses (and other similar laboratory testing) do not resemble an accusation because they do not focus on historic facts like a denunciation, which instead explains “when, where, why, how, with whom, to whom, and so on.” Drug analyses, on the other hand, focus on present facts. Forensic examiners must determine what the physical substance in front of them is, and their duty is to give a conclusion and opinion based on the objective physical evidence before them, not to accuse anyone of wrongdoing. Ultimately, Massachusetts reasons, a forensic examiner is focused only on what he or she has to test, not on the individual defendant, and the examiner has no subjective interest in the test’s outcome.
Melendez-Diaz also claims that the “Confrontation Clause applies with full force to all prosecutorial witnesses, regardless of whether they describe objectively verifiable facts or they offer an opinion concerning who committed the crime.” Hence, the Confrontation Clause does not require reliable testimony, but that the reliability of the testimonial evidence be evaluated through cross-examination. Moreover, the nature of the lab reports, Melendez-Diaz contends, although based on objective facts, is such that the drug forensic examiners must be subjected to direct and cross-examination for three reasons. First, even if the evidence is reliable, it is easy for forensic examiners to fabricate the results of the test. Second, drug-testing is a complicated process with over seventeen different methods of testing. And third, many crime labs are not even nationally accredited. Hence, by subjecting state forensic examiners to direct and cross-examination, they are more likely to be careful in their testing, and also more likely to use the best available testing methods.
The business or official records hearsay exceptions
The Supreme Court in Crawford found that the Confrontation Clause’s requirements did not apply to business or official records, because at the time of the framing of the Constitution, they were generally admitted. Because such evidence is considered nontestimonial, whether or not Melendez-Diaz’s lab reports are analogous to these common law exceptions determines also whether his Confrontation rights were violated. If the drug reports come within the business or official records exception, then it is likely that there was no constitutional Confrontation requirement, since the reports would then be nontestimonial.
Massachusetts argues that the drug lab reports come within the business and official records exception, and thus within the meaning of the Confrontation Clause. It argues that first, official records were generally admissible at common law because of the high probability that the public official will give truthful statements. Moreover, the inconvenience resulting from having officials testify in court instead of doing their jobs would be too high to justify live testimony.
On the other hand, Melendez-Diaz, relying on Crawford, maintains that the drug lab reports are neither business nor official records within the meaning of the Confrontation Clause. Instead, the hearsay exception for business and official records does not encompass reports produced in anticipation of litigation. Melendez-Diaz points out that the common law business record exception is very limited in scope, which only allowed introduction of business ledgers that had records of “wares shipped, sold, and received.”
Massachusetts responds that Melendez-Diaz ignores the fact that there are two branches to the common law business records exception. It asserts that Melendez-Diaz focuses on the narrower exception, namely the “shopbook” records of business sales. What it omits, Massachusetts claims, is another branch of the business records exception, which is the “general exception in favor of regular entries made in the course of business.” As a result, Massachusetts analogizes the lab reports as regular entries made in the course of business by explaining that the “business” of forensic analysts is to examine substances and record the results as lab reports, not in anticipation of litigation, but because it is their job to do so.
Melendez-Diaz’s chances to challenge the validity of the lab reports
Massachusetts argues that even if the lab reports could be termed “testimonial,” the admission of the lab reports did not violate Melendez-Diaz’s Confrontation rights because Melendez-Diaz had many chances to challenge the validity of the lab reports under Massachusetts law. Some of the options available to Melendez-Diaz, Massachusetts claims, were hiring an independent expert to analyze the substance, requesting an evidentiary hearing, and compelling, through a subpoena or through his right to compulsory process, the forensic examiners to be present at trial, and subject to cross-examination. Massachusetts points out that the Supreme Court has recognized that such opportunities reduce the likelihood that the accused’s confrontation rights were violated. It refers to the Supreme Court’s decision in United States v. Owens, 484 U.S. 554, 559 (1988), where the Court held that the Confrontation Clause is generally satisfied when there is an opportunity for cross-examination. In conclusion, Massachusetts states, as long as Melendez-Diaz is provided with an opportunity to confront and cross-examine the forensic analysts, the constitutional Confrontation requirement is fulfilled. Overall, Massachusetts concludes that an accused’s confrontation rights are not rigid and absolute in all cases, which is how Melendez-Diaz characterizes them to be.
Massachusetts then claims that there is little risk that the examiner will be influenced by the prosecution. First, there is no inquisitorial dialogue between the police and the analysts. Moreover, the analysts are not inherently prone to manipulation by the prosecution because the results are objectively verifiable, unlike hearsay statements, which could be easily doctored.
Melendez-Diaz was convicted on drug possession and trafficking charges based upon a drug analysis report presented to the jury at his criminal trial. The Supreme Court is now tasked with determining whether or not such a report is “testimonial” under its decision in Crawford v. Washington. If found to be “testimonial,” future results of drug analysis tests would have to be admitted through in-court testimony by the analyst who prepared the report. Such a requirement could impose significant hardships on testing facilities whose resources are already stretched thin. This could, however, prove to be a significant victory for criminal defendants’ rights and could help to curb some of the reliability problems presently plaguing forensic testing.
Edited by: Joe Hashmall
- American Society of Crime Lab Directors
- USA Today: “High Court Accepts Crime Lab Case”
- The Oyez Project: Melendez-Diaz v. Massachusetts, (No. 07-591)
- The Scientific Working Group for the Analysis of Seized Drugs