Wednesday, February 20, 2008

Moving to a head on lab reports (updated Feb. 21)

Petitioner has filed his reply brief in support of the petition in Melendez-Diaz, the Massachusetts case on lab reports. You can see it by clicking here, and you can see the other papers filed in the case by looking at my prior post. This case, along withthe O'Maley and Geier cases, discussed in another post, is now scheduled for conference on March 14; we should know on the morning of St. Patrick's Day which, if any of them, the Court will take.

Meanwhile, the conflict continues to thicken. The New York Court of Appeals weighed in yesterday with a decision, People v. Rawlins, 2008 WL 423397, holding in one case that fingerprint reports were clearly testimonial (correct there), but in another that DNA reports were not (wrong there). Unlike some decisions admitting DNA reports, this one tries to make careful distinctions, but I don't think they hold up; I'll try to write about this later.

13 comments:

Anonymous said...

Professor-

Could you pos the reply brief of Mass. not on West. Thanks.

Mitch Ignatoff

Justin Eisele said...

Great work as always keeping us updated.

The lab report situation is dire.

Richard Klibaner said...

The New York court is a little careless in its cite checking. In footnote 8, it cites the Oregon Appeals Court case of People v Hinojos-Mendoza, 140 P3d 30, 37, which was overruled by the Colorado Supreme Court on the question of whether labeling something a business record automatically makes it non-testimonial. Hinojos-Mendoza v. People, 169 P.3d 662, Colo.,2007 (the court of appeals' opinion in this case, erroneously focus[es] on the reliability of the reports and whether the reports fall within the business or public records hearsay exceptions.") I note that a petition for cert was recently filed in Hinojos-Mendoza, Feb 04, 2008 NO. 07-9369. (I assume this attacks the holding of Hinojos-Mendoza that the state, by statute, can put the burden on the defendant to require prior to trial the presence of the technician who prepared the report.)

More seriously, what I find, perhaps, most confusing about Rawlins is the suggestion that a report of the comparison of two fingerprints finding that they come from the same person is "accusatory," but that a report comparing two DNA samples and finding that they come from the same person is not. I suspect that what the Court is really saying is that one of these findings is obviously reliable and the other is not. Of course, as we all know, under Crawford, reliability is no cure for a lack of cross-examination. Reliability, by another name, is also what underlies the comment that "A salient characteristic of objective, highly scientific testing like DNA analysis is that the results are not inherently biased toward inculpating the defendant; they can also exculpate" and the discussion of the holdings in Geier and Verde. Verde, in particular, relies on the idea that these are "routine" and "scientific" tests and that nothing is likely to be gained from cross-examination - which seems to ignore the central thrust of Crawford.

Richard Klibaner

Anonymous said...

I tried to post this earlier: if it shows up twice, please excuse me.

I don't think the NY court drew the suggested distinction between two types of conclusion. As I read the opinion, the DNA "business record" was non-testimonial and admissible because it did not contain the expert conclusion that the two profiles matched. It was introduced only for the steps taken by the lab employees during the course of the DNA analysis of the crime scene sample. The match was the subject of live testimony from an expert.

The court "almost" says that the fact parts of lab reports come in, but that any expert opinion in the "business record" cannot come in (unless the expert testifies). I was in court for the argument, and the "opinion" issue was the one that seemed to have the judges puzzled.

Mark Dwyer

Anonymous said...

Professor,

I believe someone above asked the same thing, but the link in your original post is still not working. Can you post the Massachusetts's brief for Melendez-Diaz? It would be so helpful! I, too, cannot find it on Lexis or West.

Thank you,

Stephanie C.

Richard D. Friedman said...

I'm not sure what the problem is; the link seemed to work for me. But try this URL:

http://www-personal.umich.edu/%7Erdfrdman/MDBriefOPFNL.pdf

Anonymous said...

Petitions for cert have been filed in Rawlins. Any idea when the USSC will decide them? Thanks.

Richard D. Friedman said...

The cert petition is Meekins v. New York, No. 07-10845, brought on behalf of Meekins by David Greenberg. The Court has asked for a response by the State. That is due August 22, and according to the Court's schedule the papers will be distributed on September 4, in time for the case to be considered, along with the whole summer influx, at the conference of September 29. If the Court thinks there is a procedural problem with the case, it could deny the petition in early October. But it seems far more likely that the Court will hold the case until it decides Melendez-Diaz, which will be argued on November 10. If (as I hope and expect)it holds in that case that lab reports are testimonial, it would presumably remand for further proceedings in light of that decision.

Anonymous said...

Respected though you are, Professor, I may just have to respectfully dissent from your views about Rawlins/Meekins. I will post more on this later, but judging from prior postings about this consolidated case, I think we must be mindful (apparently lost on some) that the interesting aspect this cutting edge Crawford issue is judging, in rough approximations, at what point a lab report looks and smells like a "witness." The declarant must "act" as a "witness against" defendant would. To be sure, a report's author may know many things about the subject of investigation and teter on the precipice of accusation; the hard question, of course, is where along that spectrum is s/he recording/observing on the one hand, and either judging/opining, infering or outright accusing, on the other? An admittedly hard question in some cases, to be sure, but not an entirely cynical one such as to admit none. In this sense, I think the NY Court of Appeals struck a proper balance by demanding a careful weighing of familiar factors, always in context, to ensure that we not treat every single lab report as an accusatory instrument when no such prohibitive designation is warranted.

Richard D. Friedman said...

This comment by an anonymous reader (I do wish you would identify yourself, at least by the nature of your professional affiliation if for some reason you must remain anonymous) seems to be based on the premise that only "judging," "opining", "inferring," and "outright accusing" are covered by the Confrontation Clause, and that recording one's observations is not -- even though it is done with the anticipation that it will likely aid in a prosecution. But I don't believe that is so. The Clause applies to "witnesses against" the accused, not just to accusers. It is not limited to opinion evidence; obviously, it applies as well to those (such as eyewitnesses) who pass on their observations in as factually spare a manner as possible. I don';t believe that at the time the witness makes the statement he or she needs to know whether it will help or hurt the accused. For example, suppose the police tell a person, "We are investigating a crime. Did you see your neighbor at home last night?" I believe the responsive statement is testimonial; the prosecution should not be able to introduce against the accused the officer's account of what the neighbor said, without the neighbor testifying live, even though when she spoke the neighbor presumably did not know whether her statement was helping or hurting the accused. In the case of lab reports, I believe the analyst knows it is highly probable that the report will likely help the prosecution -- especially if the report asserts the presence of an illegal drug.

Anonymous said...

The omniscient question that controls, however, is not what is said. I'm afraid therein lies the "application" problem of Crawford and progeny. The relevant question is not what is said, or how prejudicial it may be against the ultimate, putative defendant; in fact, prejudice against defendant is irrelevant. As Rawlins Court suggested, virtually any information may hurt s/he who stands charged. For example, if all an out-of-court declarant's statement reveals, in response to an investigating officer's question (i.e., "you say you were on your morning job on so and so date, did you observe whether it had rained that morning two hours earlier?"), is whether s/he observed wetness on the morning grass in a park on a particular day to, say, corroborate the date of occurence of a crime (the morning of which did rain heavily), that is not "testimonial". Nor should it be. It's an observation. But beyond characterization (i.e., observation or something else), we must ask what purpose was served by the giving of that observation ("statement"). Purpose, of course, cannot be based soley on whether it might be used later in a prosecution; that might never happen. Many "factors" factor into that calculus. The point here is that we can't just preclude every out of court statement just because it might hurt defendant later; if that's the test, as the Professor suggests, then lets throw the long-standng hearsay rules out the window; they mean nothing if you accept that proposition. More later.

Anonymous said...

Addendum to my last post: I don't want to suggest that all observations are necessarily non-testimonial. The Professor is certainly right on that score. What is important is the "purpose" for which the statement was made or inquired upon. Innocuous purposes do "blur" the line; but cynicism about purpose (i.e., lab technician, whose job it is to perform, say, a DNA test which they have reason to believe/know may be later used at trial) is, in my mind, insufficient. Conceivably anything anyone says at any given moment could be used at trial.
-NYC Attorney.

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