Tuesday, June 24, 2008

Top-side amicus briefs in Melendez-Diaz (updated, June 24, pm)

Yesterday was the deadline for amicus briefs in support of the petitioner in Melendez-Diaz v. Massachusetts, No. 07-591, the case raising the issue of whether forensic laboratory reports are testimonial within the meaning of the Confrontation Clause. I have filed a brief, which you can see by clicking here. For the brief of several other law professors, click here. For the brief of the National Innocence Network, click here. And for the brief of the National Association of Criminal Defense Lawyers, the National Association of Federal Defenders, and the National College for DUI Defense, click here. My understanding is that these are no other amicus briefs filed in support of the petitioner.


Anonymous said...

Prof- Is it your position that the lab analyst who performed the laboratory testing MUST testify, or can confrontation be satisfied if another analyst with familiarity of the report, say the lab director, testifies regarding the lab report? What if several analysts working in an assembly line fashion perform a test, must each and every analyst testify to satisfy Crawford? What are your thoughts on the "surrogate expert" alternative suggested by the law professors in their AC?

Richard D. Friedman said...

I don't think one person can testify as to a given event or condition on the basis that another person has described that event or condition. I don't at all like the "surrogate expert" alternative suggested by the law profs (people for whom I have great respect). I think the state can protect itself, in most cases, if it wishes by offering an early deposition; it can even do that in murder cases where no arrest has been made by offering a deposition to any identified suspects. It can also video-record an autopsy so that the observations can later be authenticated by anyone who can identify the body. Perhaps some evidence would necessarily be lost -- but in any long-delayed trial there is the danger of some witnesses no longer being able to testify, and that is just something we have to deal with.

As for the assembly line, I think each witness has to be able to testify from personal observation. If one witness has observed what other analysts have done, that's OK. If that isn't feasible, then I think the state should either bring each participant in or rearrange the assembly line so that one (or fewer) witnesses can testify as to the test. Inefficient? the whole idea of requiring witnesses to testify live is inefficient. The cost can be reduced considerably by offering early depositions in some cases and by requiring timely demands if the accused wants the analysts to testify.

Richard D. Friedman said...

A bit of amplification on my prior comment: There is no problem whatsoever with one expert giving an opinion as to conclusions that may be drawn from facts observed by another person. I just don't think the Confrontation clause squares with one person testifying, "Here are the facts. I didn't observe them, but someone who does the same thing I do for a living that I do did observe them, and I'll tell you what she said."

Phil Cave said...

This is the situation we have in the military. Each year several hundred military people face prosecution based on the laboratory results of a urinalysis test for drugs of abuse.

The laboratory sends an "expert," usually one of three or four per laboratory whose job is "quality assurance review" and "testimony" for the prosecution. They review and testify about each of the steps in the process, interpret the data and test results, and then testify that based on a forensically sound test, the person had X or Y in their system. That's the prosecution case, plus the people who actually took the sample.
The Court of Appeals for the Armed Forces decided United States v. Magyari, 63 M.J. 123, 125 (C.A.A.F. 2006), to say that this process doesn't offend Crawford. This is so, even though there are parts of the "assembly line" where a lab employee is making a judgment or qualitative assessment rather than reporting a fact. We are still litigating these issues with a view to potential impacts of Melendez-Diaz. The Court of Appeals for the Armed Forces decided United States v. Harcrow, 66 M.J. 154 (C.A.A.F. 2008),
http://www.armfor.uscourts.gov/opinions/2008Term/07-0135.pdf) in March, which takes the position that the lab examiner must testify. We are awaiting the impact, if any, of a decision in Melendez-Diaz.