Melendez-Diaz (6th Amendment Confrontation Clause issues)
by Moderator on Sep.04, 2009, under Topics for discussion
The U.S. Supreme Court recently held that expert testimony falls under the 6th Amendment right of the defendant to face adverse witnesses. States that have used affidavits for this purpose must now scramble to change their practices to accommodate the new ruling. But beyond this, there are a number of issues yet to be dealt with: What about old cases where evidence is no longer available for retesting? What about others who had a hand in the examination process? It would be instructive to learn how other regions are dealing with this issue, if at all. Readers are invited to discuss these issues and to offer examples.
January 15th, 2010 on 11:56 am
It looks like the Supremes are going to revisit the issue. With the retirement of one Justice and the ascendancy of a former prosecutor, the 5 to 4 decision in Melendez-Diaz could well be reversed. When I used to work in the Virginia system, lab reports were admissible “as evidence of the facts therein” at any stage up to a criminal trial. At trial, there had to be a stipulation by both sides to admit the report without the scientist. I spent a lot of time in court. This does point out the need to ensure reliability in our forensic science if reports are to be admitted in the absense of the analyst because cross examination will not be avialable in such cases.
January 21st, 2010 on 7:21 am
If laboratories had refrained from the opaque practice of issuing “certificates of analysis,” and produce (as some do) actual scientific laboratory reports, the decision could well have gone the other way. Reports should state how the evidence was analyzed, but some laboratories, being “team players,” who wish to deny information to “the other side,” persist in limiting even minimal disclosure.
Reading some of these “check off” reports, it is impossible to determine whether the analyst used a GC-MS, or merely sniffed the evidence. Some reports refer to “instrumental methods,” as if that tells the reader anything. Which instrument?
The NAS report recommends the following:
“As a general matter, laboratory reports generated as the result of a scientific analysis should be complete and thorough. They should contain, at minimum, “methods and materials,”“procedures,” “results,” “conclusions,” and, as appropriate, sources and magnitudes of uncertainty in the procedures and conclusions (e.g., levels of confidence). Some forensic science laboratory reports meet this standard of reporting, but many do not. Some reports contain only identifying and agency information, a brief description of the evidence being submitted, a brief description of the types of analysis requested, and a short statement of the results (e.g., “the greenish, brown plant material in item #1 was identified as marijuana”), and they include no mention of methods or any discussion of measurement uncertainties.
This is one recommendation that could be implemented without legislation or funding, but labs have not stepped up, citing the ability to keep relevant data in the case file as allowed by ISO 17025. That option may and should disappear when ASCLD/LAB revises their standards later this year.
January 21st, 2010 on 8:19 am
I have a big problem with this NAS recommendation – “As a general matter, laboratory reports generated as the result of a scientific analysis should be complete and thorough. They should contain, at minimum, “methods and materials,”“procedures,” “results,” “conclusions,” and, as appropriate, sources and magnitudes of uncertainty in the procedures and conclusions (e.g., levels of confidence). If I am to take it literally, then that means my DNA report that is now usually two pages, must include the entire DNA analysis method. There are dozens of pages in our DNA method alone, not to mention the materials, procedures, magnatudes of uncertainty, etc. All of this information is fully available for review under the Subpoena process. The report should be simple summary of the type of test, results obtained and some information to describe the relevance or significance of those results (when appropriate). Forensic reports are not designed or intended to be research summaries.
By the way, how would one include a “measurement of uncertainty” in a report on the identification of marijuana?