Tuesday, September 02, 2008

Respondent's brief in Melendez-Diaz

Here is the brief on the merits of the Commonwealth, as respondent, in Melendez-Diaz v. Massachusetts. I expect I will post some comments on it within a few days.


Terry Hart said...

I was wondering, perhaps, even though this argument wasn't raised in the respondent's brief (and has only been raised in a handful of cases dealing with the confrontation clause), if you could comment on how you would reconcile the holding of Schmerber v. California, 384 U.S. 757, with the issue at hand.
Granted, Schmerber involves the 5th amendment, but both the language and reasoning of the court bears striking similarities to what the Crawford Court seemed to be driving at.
And on a gut level, one would think the framers would be far more concerned about a government forcibly drawing blood from a citizen than not allowing the accused to cross-examine the office drone who weighed evidence.

Richard D. Friedman said...

I just think they're two very different issues. Schmerber is concerned with a personal intrusion in the government's attempt to collect evidence. The Confrontation Clause is concerned with establishing the proper procedures for witnesses to give testimony against a criminal defendant. I wouldn't have any good way of judging which is weightier, and I don't think that matters. But it sure seems clear to me that the drone who reports that a given sample contains cocaine sure ought to be considered a witness.

Terry Hart said...

Good points. I guess I'm still a little confused because the language and analysis the Court used in Schmerber seems to be precisely in line with the rules the Court laid out in Crawford.

Regarding the question of whether a breathalyzer test implicates the privilege against self-incrimination, the Court in Schmerber said:

We hold that the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature, and that the withdrawal of blood and use of the analysis in question in this case did not involve compulsion to these ends.

This holding bears great resemblance to the holding in Crawford: Evidence implicates the Confrontation Clause if it is testimonial in nature. Since the Court did not define testimonial beyond what was necessary for the issue at hand, it has led to this split in the Circuit concerning the admittance of forensic lab reports without the cross-examination of the report preparers.

However, Schmerber said specifically that breathalyzer reports are not testimonial for the purposes of the fifth amendment:

Petitioner's testimonial capacities were in no way implicated; indeed, his participation, except as a donor, was irrelevant to the results of the test, which depend on chemical analysis and on that alone. Since the blood test evidence, although an incriminating product of compulsion, was neither petitioner's testimony nor evidence relating to some communicative act or writing by the petitioner, it was not inadmissible on privilege grounds.

In essence, they are saying that a breathalyzer report does not cause an accused to be a "witness" against himself. I guess my question is, how would you then consider a preparer of a breathalyzer test (or any similar forensic lab report) to be a "witness" against the accused for purposes of the sixth amendment?

Anonymous said...

The brief asks the right question: who is an "accuser"? But the answer it gives reflects most of the defects of post-Crawford jurisprudence.

First, it assumes an English origin for the right of confrontation. If we want to know who the Founders thought was an "accuser", we should look at the trial of John Hancock for smuggling described in 30A Federal Practice & Procedure: Evidence § 6345, p. 516. The depositions of the customs officials did not directly "accuse" Hancock of anything, though when coupled with other evidence they might have suggested his guilt. John Adams and others thought Hancock had been denied the right to confront his accusers.

Second, anachronistic reading of founding era cases. In 1791 the common law was in the midst of a switch from a system that insured reliability of verdicts by disqualifying everyone with a motive to lie to a system that allowed interested parties to testify and relied on the jury and cross-examination to secure reliable verdicts. To confuse an exemption for small merchants without a clerk from the rule of incompetence for interested parties with a hearsay exception for business records betrays a startling lack of historical sophistication. Since writings were not regarded as hearsay in 1791, no "official records exception" was needed.

Third, assuming that the Supreme Court did not reject the "resemblance test" in Davis (see 30 FPP § 6371, at note 225) the brief misapplies it. The affidavit at issue in Melendez-Diaz does resemble the civil law ex parte examination of witnesses: both involve hearsay statements intended for use at trial prepared in a manner controlled by the government without any participation of the defendant.

Fourth, the brief displays an unsophisticated notion of "science" whose flaws can be seen by anyone familiar with Daubert. Crime labs are "scientistic", not "scientific" institutions. The chemists may qualify as "experts" but they are not subject to peer review and the other institutions of true science. The point is not that all crime labs are corrupt---but they are all corruptible because of the absence of scientific controls. The fact that jurors may have an equally simple-minded view of "science" is a reason enough to bring in the chemists for cross-examination.

Fifth, the brief ignores "the holistic Sixth Amendment. The Founders did not see the right of confrontation as a free-standing right but as a part of a procedural system they called "trial by jury." This case looks different if you add the right to trial by jury, the right to counsel, and the Winship line of cases. For an attempt at something like this, see Seaman, Triangulating Testimonial Hearsay: The Constitutional Boundaries of Expert Opinion Testimony, 2008, 96 Geo.L.J. 827.

Sixth, tendentious use of precedents. The brief says every modern Supreme Court case has involved an "accusation." What about the "accusation" in Dutton v. Evans:
" if it hadn't been for that dirty son-of-a-bitch Alex Evans we wouldn't be in this now." If that is an accusation, then "the substance the police took from Melendez-Diaz is cocaine looks like an easy case.

Finally, ignoring confrontation policy. The brief does not seem to understand that the Sixth Amendment was not designed to make it easy for the government to convict. The British Admiralty in 1791 could have made all of the arguments for denying confrontation that the Commonwealth makes in the brief. The Founders did not find them convincing and neither should we.

This is a case where procedure abuts substance. The statistics cited in the Commonwealth brief suggest that criminalization of drug use has not been a conspicuous success in preventing the use of unauthorized happiness pills. This suggests that the Court need not distort confrontation policy to further bloat our overcrowded prison systems. Perhaps if they did not have the duct tape of the criminal law to patch over the problem, state legislators might explore more innovative policies to reduce drug use.

Richard D. Friedman said...

The above comment is by Kenneth Graham, emeritus professor at UCLA Law School, and he has authorized me to say so; lacking a Google password, he posted anonymously. I solicited his comments; he is not only one of the leading Evidence scholars of the day, who has done some great work on confrontation, but also one of the commentators quoted by the respondent's brief. Naturally, neither my solicitation of Ken's comments nor his posting them on this blog should be taken to be an endorsement by me of everything he says -- but his comments are mighty interesting.

Anonymous said...

I think the learned professor raises the right point with his distinction between science and scientistic. The problem is that the courtroom is not the right place to be conducting science either, especially under cross examination.

The other real difficulty is practical. Imagine if every report could be cross-examined. Justice is slow as it is, and such a situation would gum up the works even more. It would drastically increase the costs to the state of prosecutions. Meanwhile, there would be very little benefit to it as most labs do good work.

I honestly don't doubt that lab reports are testimonial. It's just that the solution of letting them be subject to cross is (as a social matter) just as bad as keeping them out.

Anonymous said...

Isn't the question of "science" or ""scientistic" wholly irrelevant? The reliability rationale of Roberts was done away with in Crawford/Davis. The science/scientistic argument is nothing but an argument regarding reliability, which should be irrelevant to the determination of whether laboratory reports are "testimonial." Nothing in Crawford or Davis suggests that because lab reports are created scientifically (i.e. are "reliable") they are non-testimonial. The opposite seems to be true. The statements in Davis found to be testimonial where recorded. How much more reliable can something be?

Mitchell E. Ignatoff, Esaq. said...


I am awaiting your comments on Massachusetts brief. What most concerns me is the argument that public officials findings are entitled to an exception to confrontation.

First, the states hate confrontation, because they believe that it's extra work to convict someone who is already guilty, particularly if there is a supposed scientific machine finding, such as the kind and quantity of drugs, or the amount of alcohol in the blood.

Massachusetts' brief ignores colonial history, not just that cited in Crawford, but a pulbication that John Adams relied on published by a merchant/lawyer in South Carolina about the workings of the vice admiralty courts. I suspect there were other writings by colonial lawyers at the time.

Massachusetts' argument would gut Crawford by limiting confrontation to accusers. That's not what the confrontation clause says. Their argument could result in only the cop who signs the complaint-or maybe the forman of the grand jury-
actually having to testify. Every thing else comes in as a record of a disinterested public official, which the police often are characterized as.

I think the real issue is the reliabilty of scientific tests. These involve whether the chain of custody is correct, whether the test was done properly, whether the person who did the test was properly trained, whether the machine was properly set up-calibrated- at the time of the test, including now whether it's software fills in holes in the data, and the inherenet accuracy of the machine. With large amounts of drugs or alcohol these may not matter much, but with smaller amounts it matters alot. This is particularly so since there are no agencies accrediting these labs. Most attorneys are not trained enough to do this kind of cross examination.

With a notice statute these become false issues except when they matter, either because the machine is inaccurate or because the amount of the illegal substance is tiny. Generally if you call the chemist it gives the state a chance to bury you.

if you are a defender organization it is worthwhile to make the chemist testify because over time you can compare whether in fact they are accurate. I simply do not believe that every test is accurate, no matter how automated.

i'd like to hear your thoughts.

Mitchell E, Ignatoff,Esq.

Mitchell Ignatoff, Esq. said...

The publication I was referring to is Henry Laurens, Extracts from the Proceedings of the Court of Vice Admiraltyin Charles-Town, South Carolina (1768). I have been unable to find a copy to read. Professor, where can I get a copy?

Mitch Ignatoff, Esq.