Monday, November 10, 2008

The Melendez-Diaz argument

I have not been able to work much on the blog lately, because of the press of other work. But I attended the argument of Melendez-Diaz v. Massachusetts in the Supreme Court yesterday and I want to report on that. (The transcript is available on the Court's website; you can see it by clicking here.)

For those who have not been tracking the case, it concerns the question whether the Confrontation Clause covers a certificate of a lab report that a given substance cocaine. I believe the answer is clearly affirmative, and I am hopeful that the Court will reach this result; I would not be amazed if it were unanimous, though that is of course hard to predict.

There was no substantial doubt that the certificate was prepared in contemplation of use in prosecution; the statute makes it clear on its face that these certificates are to be prepared for usei n law enforcement, and the Commonwealth (represented at argument by Attorney General Martha Coakley) has not denied the point.

Much of the discussion concerned the practical impact of holding that lab reports are testimonial. Jeff Fisher, arguing for the petitioner, explained effectively that in most case the author of the report would not have to come to trial because usually defense counsel would be willing to do without confrontation. Defense counsel might make this clear by stipulating to admission of a certificate. Also, a state can validly create a simple “notice and demand” system, under which the state gives notice of intent to introduce the certificate and it is admissible unless the accused demands that the state produce the author of the report. But it is the defense’s choice whether to demand confrontation, not one that can be made by a court. (Jeff made the same point in response to questions about whether cross-examination of the analyst would be futile given the analyst's presumed lack of memory; he might have also added that the Supreme Court has said, in upholding admissibility of a witness's prior statement despite the witness's inability to respond to many questions on cross, that showing the witness's loss of memory is a benefit to the defense.) Jeff also pointed out that numerous states – including California and other large ones – currently have procedures that are constitutionally satisfactory, and they seem to be able to operate effectively. At one point, Ms. Coakley said that California had joined the amicus brief of Attorneys General – but the Chief Justice soon pointed out that she was mistaken.

Lisa Schertler, arguing for the United States as amicus, contended that the certificate should be admitted because it merely reported the output of a machine. I don't think she made much headway with the argument, and for good reason. Justice Scalia presented an interesting hypotheical -- the time of murder is significant, and a witness says the clock was striking twelve. Obviously, that would be testimonial. The output of the machine is of course not itself testimonial, but the certificate reflects much more. At the outset of the argument, I believe there may have been some confusion on this score, but by the end -- there was a good exchange between Jeff and Justice Souter at the very end -- I think the matter was clear: The state must present a witness who can testify from personal knowledge about the chain of custody from the time the material enters the lab to the time the test is performed, and about what test was performed. This, I believe, must include testimony establishing that the particular test output is the result of the test on the relevant substance and not on another. But once this is done, any qualified expert can give an interpretation of the output.

Another issue that came up a couple of times was whether the Confrontation Clause was satisfied because the accused has a right to call the author of the report himself. Jeff answered that this argument could lead to trial by affidavits of any witness the prosecution chose, and that it ignores the passive nature of the confrontation right -- that is, the accused has a right to be confronted with the witness, to demand that the witness be presented to him. Also, it would essentially render the Confrontation Clause a nullity, given the Compulsory Process Clause. He did not address the practical reasons why the defendant's chance to call the analyst is not the equivalent of the right to cross-examine the analyst; his reply brief pointed out that I raised these practical problems in my pending petition for certiorari in Briscoe v. Virginia. If the Court decides to treat this issue outside the question presented by the Melendez-Diaz petition and instead to address it in Briscoe, I would not be unhappy. But it may be that the Court will simply hold here that the right to call a witness does not satisfy the confrontation right.

Justice Breyer in particular pushed one issue: Suppose there is a non-testimonial document, not prepared in contemplation of litigation, and the prosecution offers a certificate, prepared in contemplation of being used in prosecution, that the underlying document is authentic. Must the author of that certificate testify in court, and if not what is the distinction between that certificate and the one at issue here? Jeff responded that a certificate of this sort is not evidence as such, but is akin to a seal, which can be used as foundation for the document. In contrast, the certificate here is being used to establish an element of the crime.

I think this is at least the kernel of the answer. This is a tricky matter that could not be adequately addressed in oral argument -- and that, I believe, warrants further historical research. The United States took the view that "human assertions that merely establish the foundation for admitting nontestimonial evidence do not themselves trigger Confrontation Clause rights," but that cannot be right. Suppose a non-testimonial letter allegedly by the victim is critical in a murder case; the prosecution could not authenticate it by presenting the certificate of a handwriting analyst that the letter was in fact written by the victim. But when the prosecution wishes to produce a copy of an official document, I do not believe there is a constitutional requirement that there be evidence of proof that the document is what it appears to be; there are some documents that the law treats as self-authenticating, and this could be one. Traditionally, documents under seal were regarded as self-authenticated, and certificates of copies are a modern counterpart. They amount virtually to a form of judicial notice of authenticity. It is clear that documents under seal were not thought of in the founding era as an alternative form of testimony (as dying declarations were). They were categorically different from testimony, and they do not resemble the certificates in this case, which report on a test performed in contemplation of prosecution.

15 comments:

Anonymous said...

Prof- with all the discussion yesterday about California law on this issue, what is the likelihood, if any, that the Court will take a California case to look deeper into how lab reports are handled? I believe there are a few California cases pending, in particluar Geier v. California, No. 07-7770 (See your post from 2/12/08). Thanks

Anonymous said...

Doesn't Geier present the same issue as Melendez-Diaz, namely, whether lab reports are testimonial? There would be no reason to grant cert on Geier.

Richard D. Friedman said...

That's right -- plus, Geier has a big harmless error problem. The reminder of Geier does prompt me to add to my posting with respect to California. There is no statute in California comparable to the one in Massachusetts and in other states allowing certificates of lab reports. Geier did allow a supervisor to testify as to the lab results determined by a subordinate, and I believe this was erroneous; it was based on the perception that the report was not testimonial. I do not know whether this practice is common in California, but I am hopeful that it will be clearly invalid after Melendez-Diaz is decided.

Steven Yermish said...

The practice here in Florida, like California and many other jurisdictions, had been to have a supervisor or records custodian testify at trial, rather than the analyst who performed the testing and authored the report. In Florida, that practice was overturned in May 2008 by the Supreme Court in the Johnson case, affirming a lower appellate court decision holding that a lab report was a testimonial statement.
It seems to me that if the Supreme Court decides in Melendez-Diaz that the lab report is testimonial, the effect will be the same (as here in Florida), the author of the report will have to testify at trial.
Thus rather than granting cert in Geier (and other similar cases in the pipeline), it will GVR the case.

afor said...

I have a cert. petition pending in Meekins v. New York. In Meekins, the police sent a rape kit in a cold case to a private, out-of-state lab for DNA testing. The resulting DNA profile matched my client's profile in a NY data base; he was arrested, charged, tried and convicted. The problem I foresee, assuming M-D wins, is that in my case there was no suspect at the time the private lab generated the DNA data. Therefore, it might be argued that the data and report so generated wasn't accusatory or testimonial under Crawford. Any thoughts or insights on this aspect of the issue would be much appreciated. Thanks. David Greenberg.

Trace Rabern said...

Mr. Greenberg, I'd be interested to know what Professor Friedman thinks, but I see no reason why in your situation the lab result isn't just as testimonial as in Melendez-Diaz. Every time the government sends something off to a forensic lab, they are in theory trying to solve a crime by either confirming their suspicions, or proving they are on the wrong track. The work was still done in an effort of crime-solving, and unexpected results should be as helpful to the government as the expected ones (e.g., seems we might have the wrong guy, the real perpetrator is still on the loose). They clearly sent the sample off to attempt a prosecution, not in the expectation that they were ordering take-out or providing feedback on Amazon or something else non-investigative. That they did not have in mind a certain suspect does not seem to me to alter the analysis of what is "testimonial".

Richard D. Friedman said...

I agree with Trace Rabern's comment. To be a "witness against" the accused does not require that there have been an identifiable suspect at the time of the statement. Suppose a crime is committed in the dark and an eyewitness -- it could be the victim -- describes it afterwards to the police. (Assume it's long enough afterwards that it's definitely not an emergency.) Clearly, that statement is testimonial.

Anonymous said...

Mass.'s response brief certainly makes the argument that the Confrontation Clause is focused on "accusatory" statements. If the Clause is not so limited, are all statements to or by the govenrment (save in emeregencies)testimonial? Is the defenition of testiminial even limited to statements recived by the government?

Richard D. Friedman said...

No, it cannot be that all statements by or to the government are testimonial. I had an exchange with Justice Alito on this point when I argued Hammon. Statement to cop in the donut shop, nobody thinking of any crime or case: "Jack is back in town. I saw him yesterday. He's looking good." Plainly not testimonial -- because it's not made in anticipation that it will be used in investigation or prosecution of a crime.

And I don't think the definition of testimonial should be limited to statements received by the government. If that were a limitation, then witnesses could testify by making statements to intermediaries -- and that, far from being fanciful, is surely what would happen, because victims' support organizations would offer their services by taking testimony (on videotape) and relieving the witness of the need to show up at trial, take an oath, or face cross-examination.

Anonymous said...

What if the cop in the donut shop is looking for Jack in connection with a murder but the declarant does not know this, testimonial?

If the definition of testimonial is not limited to statements recieved by the govenrment, how then would you define the term?

Richard D. Friedman said...

If the cop is looking for Jack in connection with a murder and the declarant has no idea about this, then it is not testimonial. If the declarant thinks he's just chatting, then it is as if the cop is operating undercover. The key, in my view, is whether the statement was made by the declarant in anticipation that it would be used in prosecution or investigation of a crime.

Rocky Sharwell said...

My experience in Florida differs with Steve Yermish's. I do appeals in 14 counties. I have done so for 11 years. I was counsel at the Florida Supreme Court in Florida v. Johnson-which had the identical issue to Melendez-Diaz.

Other than the Johnson case--I have never seen an appellate record where they send the supervisor to testify about the lab results.

Anonymous said...

Is that the same Jeff Fisher UMichLaw class of '97?

Richard D. Friedman said...

Yes. Jeff argued Crawford and Davis, among other Supreme Court cases.

Sophia said...

Pretty helpful data, lots of thanks for your post.