Thursday, November 13, 2008

Thoughts on Melendez-Diaz: chain of custody, products of a machine, who must testify, etc.

While Melendez-Diaz is pending, I am going to write about various significant issues beaing on it. Here I will write about the chain of custody, products of a machine, who must testify, and other related topics.

Chain of custody is not a technical requirement that should be belittled as a mere technicality. The chain is part of the requirement of authentication, which is that the proponent demonstrate that a piece of evidence is what its proponent claim it to be. Absent authentication, the evidence has no substantial probative value, because its connection to the case has not been demonstrated. Authentication is a fundamental part of the whole story told by the prosecution, which is how a course of events that included the crime charged wound up producing the evidence that the prosecution has presented in court. Some items are treated as self-authenticating because from the face of the item it is readily inferrable, on the basis of information of the type that jurors are allowed to bring with them to court, that the item is what it appears to be; no evidence need be produced that an item that appears to be the New York Times of November 14, 2008 is exactly that. But assuming, as is usually the case, that the item is not self-authenticating, then, like any other part of that story that the jurors cannot infer based on the information they are entitled to bring to the job, authentication has to be proved by ordinary admissible evidence.

So let’s say a breathalyzer spits out a red splotch on paper if the subject’s blood alcohol level is excessive. Plainly, the prosecution cannot prove its case simply by introducing a red splotch on paper of the type generated by the breathalyzer. Absent evidence that this splotch was generated by a test performed on the accused’s breath, the splotch is essentially irrelevant; its connection to the story we are concerned about has not been shown.

Suppose now that a lab technician who performs the test writes on the margin of the paper, "Jack Sparrow, Nov. 14, 2008." Taken in context, that is an assertion that the red splotch is the result of a test done on Jack Sparrow on the date recited. That assertion was plainly meant for evidentiary purposes, and it is testimonial. The red splotch itself is not testimonial, of course – as has been noted on the states' side in this case, and by some courts, that is just the product of a machine. But without a testimonial statement as to just what that product is, it is of no help to the adjudication. And if the paper with the writing is offered by the prosecution, then a testimonial statement has been offered without the witness having been subjected to cross-examination. That is a Confrontation Clause violation.

So what can the state do, assuming the defendant does not waive the confrontation right? Obviously, the way it can most clearly solve the problem is to present as a witness at trial, the technician, who will testify how the splotch was generated. I will discuss here five other possibilities. Two are clearly permissible. Another should be permitted, in my view, though it is controversial. The final ones I believe are clearly unconstitutional.

1. A properly drawn notice-and-demand statute is constitutional. Petitioner has acknowledged that a "bland" notice-and-demand statute is constitutional. That is, so long as all the defendant has to do to get confrontation is make a timely demand, there should be no problem. Of course, a statute could make an unreasonable demand on the defendant, and that could create a problem. And I think some leeway ought to be allowed if some reason arises belatedly giving the defendant reason to demand confrontation. But in general, a well-drafted notice-and-demand statute is constitutional, and that relieves much of the problem; most defendants have no desire to have the technician tesify live.

2. The constitutional requirement is not that the person who performed the test or wrote the report testify subject to confrontation, but that someone testify from first-hand knowledge about the process leading to the reported results. The critical factual propositions to which the technician would testify at trial, if she does appear, are:

a. The person or bsubstance tested was the one material to the case.

b. The test was performed as described by the witness.

c. (1) The results of the test were as testified by the witness, or (2) A
given tangible item is the product of the test.

Testimony subject to confrontation as to these propositions must be presented by a witness with personal knowledge of them. That witness could, of course, be the technician who performed the test, but it need not be. Suppose that at every step along the way the technician is accompanied by a trainee who touches nothing and writes nothing but observes everything the technician does. (Some jurisdictions routinely have multiple physicians present at an autopsy.) Then that trainee could testify at trial as to these propositions. For that matter, suppose the cop who brings the suspect, or the sample, to the lab stays and watches the entire test being performed. The cop could then testify from first-hand knowledge as to these propositions as well.

Now note that if the technician testifies she will often testify as to a fourth proposition:
d. The proper interpretation of the test results is as testified by the
But even assuming that interpretive evidence is necessary, there is no requirement that the witness providing the interpretation be the one who testifies as to the three factual predicates identified above; as long as a witness with first-hand knowledge is able to testify to those predicates, then any witness with sufficient expertise to interpret the test results may do so.

3. The state may provide a pre-trial opportunity for confrontation, and if it does the courts should be generous in holding that the witness is unavailable at the time of trial. Much of the inefficiency that Massachusetts and its supporting amici complain about would be avoided if the state provides a full pre-trial opportunity for confrontation. The deposition can be scheduled ahead of time, and does not have to depend on what happens at trial. A witness coming from a distant city could schedule several depositions on one trip. In most cases involving lab reports, there is no mystery early on what the lab report would be used to prove and what the defendant would like to achieve on cross. Early cross-examination offers the possibility that the witness will have a clearer memory of the test than at trial. And the deposition can be videotaped.

The sticking point is that under Crawford a pre-trial opportunity for cross suffices only if the witness is unavailable to testify at trial. I think it would be wise to be rather generous in deeming a witness who has been subjected to cross-examination to be unavailable at the time of trial. Unavailability is often a matter of degree, and given the prior cross and the rather small probability that a second cross would add much, I think the trial court should be allowed to characterize as unavailable a lab technician who would have to travel a great distance. Also, if at the time of trial the witness has virtually no memory of the particular incident -- and that should be subject to demonstration without live testimony from the witness -- then that is a basis for holding her unavailable.

Pretrial testimony is a second-best solution. But in this context, I think it should be constitutionally acceptable.

4. A surrogate should not be allowed to testify to the factual predicates necessary for proving the test results. I stated above the three predicates necessary to admit lab results. Notwithstanding the position taken by several other law professors in an amicus brief, I think it is plainly inadequate for a witness who did not observe the conduct of the test or the handling of the substance tested to report someone else's assertions as to the chain of custody of the substance, the test performed on it, and the results of that test. ("I didn't see the stuff being handled, I didn't see the test being performed, and I didn't see the results of the test. But I'll tell you what my colleague wrote on these points.") There is simply no justification for presenting a surrogate witness to report the testimonial statement made by another witness who has not been subjected to confrontation and whom the state cannot or would rather not produce.

5. The state should not be allowed to shift the burden of presenting the witness to the defendant. I have said that a simple notice-and-demand statute should be constitutionally acceptable. But the confrontation right is not satisfied by providing that the defendant may call the technician as his own witness. The passive language of the Confrontation Clause suggests that such a burden-shifting statute is unacceptable. So does the fact that, given the Compulsory Process Clause, the Confrontation Clause would be rendered a virtual nullity if such a statute were valid. But to my mind, the most significant factor is that practical considerations make clear that telling the defendant, "You may call this technician whose report has been entered against you" is simply not the equivalent of telling the defendant, "You may cross-examine the prosecution witness who has just testified against you." My pending petition in Briscoe v. Virginia explores the reasons why this is so.


Anonymous said...

Thanks for the very interesting insight, professor. Can you give an example of a particular State's constitutuonally proper notice-and-demand statute?

Richard D. Friedman said...

Drawing from citations in the law professors' brief, here are several notice-and-demand statutes that appear to me, at least at a quick glance, to be constitutional:

Delaware, Del. Code. Ann. tit. 10, §§ 4330-4332 (2008).

Illinois, 725 Ill. Comp. Stat. 5/115-15 (2008).

Maryland, Md. Code. Ann., Cts. & Jud. Proc. §§ 10-306, 10-914 (West 2008).

Ohio, Ohio Rev. Code Ann. § 2925.51 (West 2008).

Texas, Tex. Code Crim. Proc. Ann. art. 38.41 (Vernon 2007).

Some of these make it seem at first that the certificate is simply admissible, but read on and you find that if the defendant makes the demand then there has to be a live witness.

Ohio gives the court discretion to extend the time for the demand. As I indicated in my posting, I think application of one of these statutes might be unconstitutional in a given case if the deadline is applied inflexibly, even though not until later did the defendant have good reason to want the witness to come in live.

The law professors' brief lists several other statutes that might be acceptable, but for one reason or another I was unsure of them.
I believe the ones cited above are enough to give a sense of what the states may do.

Anonymous said...

("I didn't see the stuff being handled, I didn't see the test being performed, and I didn't see the results of the test. But I'll tell you what my colleague wrote on these points.")

to me that sounds like classically admissible material. The witness says, "I didn't see the crates brought into the warehouse, I didn't see my colleague opening the crates and counting the widgets inside, and I can't from personal knowledge verify the count he made. But I will tell you from this business record that there were 356 widgets delivered."

I know this doesn't address "prepared for litigation," and I won't go there tonight. but: it doesn't sound bad to me.

Mark Dwyer

Richard D. Friedman said...

Well, golly, preparation in contemplation of litigation is the whole point. Mark's hypothetical does help clarify the matter, I think.

In the hypo, the witness doesn't have personal knowledge of the widgets and can't testify as to that. What he can do is authenticate the document and provide predicate for satisfying he hearsay exception for business records. The document was not prepared in contemplation of litigation, and so there's no confrontation problem. So presumably the document is admitted -- and then the assertion presented to the jury is the one made by the document, not one made without personal knowledge by the witness in court.

In the hypothetical I presented, by ceontrast, the certificate clearly is prepared in contemplation of litigation, and so it is testimonial and can't be admitted absent the testimony of someone who can endorse it from personal knowledge. This is a pretty basic distinction.

Anonymous said...

well, since we're going there: that assumes what I, at least, think cannot be assumed. when a doctor performing an autopsy describes in his report the track of a bullet or the depth of a knife wound, he should have no more knowledge of the significance of particular findings to litigation than does the widget counter -- whose report, by the way, also can quite foreseeably be used in litigation.

anyway, that is a matter for state hearsay law. as to what is "testimonial," beyond Crawford's apparent affection for business records: unless someone tells the pathologist what the state wants him to say, I can't see how his choice to say that the slug proceeded from left to right rather than from right to left is a matter intended to advance the state's position in court.

conclusions are different. but the weight of the heart or the unremarkable nature of the left ear are facts akin to the number of widgets. the notes of such facts made on the autopsy report are not prepared for litigation. and an expert should be able to discuss the document, allowing it to present its assertions of fact to the jury.

Mark Dwyer

Richard D. Friedman said...

A very interesting perspective (and one that just happens to be very favorable to prosecutors), as I would expect from Mark.

Note that Mark picks the case in which the testimonial quality of the statement seems to be the weakest: Assuming the doctor isn't told by the cops "left to right," then isn't it 50-50 whether that helps or hurts the prosecution, and then how can it be testimonial. A few points:

1. The reason I say this is apparently the weakest case is because often the analyst knows full well that the statement will help the prosecution. That's true in Melendez-Diaz, given that the analyst concluded that the stuff was cocaine rather than, say, rock salt. And it's true in an autopsy case when the examiner concludes that the cause of death was, say, strangulation, and not accidental, natural, or suicide.

2. Even in the left-right case, I think it is not true that it's only 50-50 that the statement will help the prosecution. The analyst presumably believes (as I do, in general) that it is probable that the prosecution will pursue the truth, so the analyst should believe that the truth as she perceives it is more likely than not to support the prosecution.

3. In any event, the 50-50 quality does not make the statement non-testimonial. Suppose the police come up to someone and say, "We suspect your neighbor of murder. It's very important that we fix what time you saw him leaving his house last night. Tell us as we roll the videotape, and if it supports a murder case against him, we'll use your statement in court; you won't have to take an oath, or come to court, or face cross-examination." Is there any doubt that this is testimonial? A statement can be testimonial, even though at the moment it is made the declarant cannot be sure whether ultimately it will help or hurt the prosecution, so long as there is a substantial probability that it will be used in prosecution.

4. I think the substantial probability is the key. I'm not sure why Mark says the widget counter anticipates evidentiary use of the statement, but in most business contexts the probability of evidentiary use is very small. And if it isn't . . . well, I'd like to know what the case is.

5. Mark draws a distinction between conclusions and objective observations. (Ah, for the good old days of Roberts, when such observations would come in as reliable.) But assuming the examiner concludes, or suggests, murder was the probable cause of death, I think it's clear that the whole document is prepared for litigation and therefore testimonial -- the examiner knows that the full report is going to the prosecutor.

And by the way, the attempt by some courts to draw a distinction between factual observations and conclusions is entirely spurious. Not only is the line between the two very fuzzy -- note, for example, the Supreme Court's evisceration of it in Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988) -- but let's recall that what we want from an eyewitness is "just the facts." There is nothing less testimonial about factual observances than about conclusions. I do think the attempt by some courts to use the distinction in this context is motivated by a sense that the analyst's factual observations are reliable. Can't do that anymore.

Anonymous said...

if I were to use a "weakest" scenario, I'd probably go with the technician who examines DNA left by an unknown criminal. the technician has no possible knowledge of what result will help a future prosecution, and no way of manipulating the results even if he did.

but: I won't drag it out, professor, and I thank you for your comments. still: "Can't do that anymore." that is the question! it may be clear that we can't do it anymore as to the witness speaking to the police about his neighbor -- if ever we did that. but as to lab-facts, we shall see.

Mark Dwyer

Richard D. Friedman said...

Thanks, Mark.

I think Mark's DNA case is comparable to one in which the cops ask the busybody neighbor, "We're investigating a murder in the neighborhood. Did you see any strange cars here last night? And if so, could you describe them? [And then [as in my prior comment] videotape, no need for oath or cross or presence at trial.]" Clearly testimonial, as I believe the DNA case is.

My "Can't do that" comment was addressed to the making of reliability arguments.

steve baker said...

1)Is there a link to the law professor's amicus brief in Melendez-Diaz?

2)Are their cases upholding coroner's reports as to cause of death admissible with/without another expert so testifying? In Illinois, the practice used by prosecutors when a ME is deceased or retired is to bring into court a second ME.
Criminal - Search And Seizure/ Murder / Right Of Confrontation
1st Dist. People v. Moore, No. 1-06-0432 (December 11, 2007) 2nd div. (KARNEZIS) Affirmed
Police officer had probable cause to arrest defendant, after he identified himself; because other officers, conducting investigation of murder, had specific information identifying defendant as perpetrator of murder. Further, it was not error for trial court to allow witness from coroner’s office to testify based on retired physicians autopsy report; because the records qualify as business records.

Anonymous said...

Professor Friedman,

Can you square your belief that the law ought to reflect point (3) in your post, with your belief that the Confrontation Clause, at base, expresses a preference for live, in court testimony? It seems to me much of your writing in this area is motivated by a belief that the clause means something specific, not that the right to confront a witness is always or even often valuable. So why now support a (seemingly--of course there might be a perfectly principled explanation for this) unprincipled diluting of the right?

Is (3) motivated more by a fear that without relaxing the unavailability requirement, courts will be too willing to define assertions you believe to be testimonial as "non-testimonial?"

Anonymous said...

Under (2), no more lab supervisors testify to the results of lab reports unless they witnessed the test, right? So if the technician was alone when they performed the test, and is unavailable, that test would be inadmissable. The most probematic area is, of course, with a dead pathologist who performed an autopsy years ago.

Richard D. Friedman said...

Right as to the first sentence. As to the stale autopsy problem, the state has at least three ways of protecting itself:

(1) Have multiple qualified witnesses observe the autopsy in case the examiner who performs it becomes unavailable. As I understand it, this is standard practice in some medical examiner's offices. And indeed, some labs routinely have multiple observers even of tests more routine than an autopsy.

(2) Videotape the autopsy, showing the face (or some distinctive feature) of the cadaver, and running the tape continuously. Then, even if no one who was present at the autopsy is available at trial, the videotape can be authenticated by anyone who recognizes the face.

(3) At least if there is a limited pool of suspects at the time of the autopsy or soon after, give notice to each one that (a) he is a principal suspect in a murder case, (b) a deposition of the medical examiner will be held on a given date, (c) the suspect may attend and cross-examine; (d) a lawyer will be appointed for him if he cannot afford one; (e) if the suspect is ultimately tried for the murder and the examiner is then unavailable to testify, the state will seek to introduce a video recording of all or part of the deposition.

I think that the deposition should be admissible in this circumstance unless the accused shows good cause why the opportunity to be confronted with the witness at the deposition was inadequate. Depositions of witnesses who are unavailable to testify at trial have been admissible against criminal defendants at least since the early seventeenth century. The fact that this defendant has not yet been charged should not make the deposition invalid given that he has strong incentive to treat the deposition seriously.

Steven Yermish said...

Professor Friedman:
The autopsy situation is of course the most problematic, given the long period of time that may arise in (a) identifying and charging a defendant and/or (b) getting the case to trial after charges are brought. The first two ideas, secondary observers and videotape, are viable options. Here in Miami, the use of a second examiner to observe the autopsy has become a common practice for the medical examiners office.
I disagree generally with the deposition option. While in a particular case that may be viable (esepcially in a situation where the defendant has already been charged), it is often difficult to cross examine a medical examiner at a very early stage. You do not necessarily know the right questions, and issues like time of death can be extremely difficult to address before other pretrial investigation is complete. While depositions may be admissible in criminal cases, they are taken after charges are brought, so that a defendant is in a position to better address questions to a deponent, ususally after having been given an opportunity to conduct some discovery and investigation.
The routine use of video these days should make that option the most attractive and viable one, although the gruesomeness of the video may raise other issues, especially prejudice claims under Rule 403. I believe careful editing can circumvent those objections.

Richard D. Friedman said...

I don't disagree with Steven that a pre-charge deposition may be too early, if counsel for the as-yet uncharged suspect is not in a good enough position to know what to ask the pathologist. But I don't think there should be a per se rule that it's too early; I think that if the pathologist becomes unavailable by the time of trial and the prosecution offers the deposition, the accused should have to demonstrate why, though he had an opportunity to examine the pathologist, that opportunity was too early. Sometimes the accused will be able to do so, and sometimes not. Perhaps the principal reason making it difficult early on to examine the pathologist is probably that the suspect may not yet know what the prosecution's theory of the case will be -- if it does charge him in the end. Note, though, that this concern gives the prosecution an incentive to inform the suspect: "If we charge you, we anticipate that our theory will be . . ." The prosecution may not be happy about doing that, but this is a choice it can make if it wants to improve the chance that it will be able to get the pathologist's evidence in.

I should add that despite the emotional pull that the "stale autopsy" case seems to have, ultimately it is much like any other case in which, if a witness becomes unavailable before trial through no fault of the defendant and the prosecution has not managed to preserve the confrontation right, the prosecution loses the benefit of that witness's evidence. Unfortunate, but we do the best we can. Here, unlike the situation with an eyewitness, the state has ways -- in addition to taking a deposition -- of improving its chances.

Mitch Ignatoff said...

My sense of the argument is that the Court wanted to set a precedent for all lab tests such as ballistics, drugs, DNA, among others. I also believe that a number of the justices were quite concerned about the impact their holding might have on the states. Yet it seemed to me that the Court was going to rule, in line with Palmer v. Hoffman, that any statement made in anticipation of litigation was testimonial and thus barred by the 6th Amendment.

The Court wasted little time dispensing with the business record exception to the hearsay rule. They found no historical precedent for the proposition that a statement made in anticipation of litigation was a business record. The Court clearly felt that the lab tech’s certificate was a statement made in anticipation of litigation. And this is so even though the lab tech was supposedly neutral, the machine doing the test was largely automated, and the lab tech did these tests routinely.

The real issue in this case, unfortunately not really addressed by the parties, was where the Court was going to draw the line for the end of the right of confrontation; that is, at what point does the state not have to bring in the lab tech to testify. Analytically the Confrontation Clause has no limit. Even in a speeding ticket case the state would have to bring in the designer and programmer of the particular radar gun used by this police officer so they could be cross examined as to bias in the machine. And every American has a right to the Confrontation Clause in every criminal prosecution.

I don’t know where the Court will draw the line. The 6th Amendment right to trial by jury is limited to any case where the penalty is more than six months in jail. In Crawford v. Washington the Court held that the Marian bail and committal statutes passed by Parliament in the 1500's for felony cases were exceptions to the right of confrontation. This implies that in non-felony cases confrontation was routine at common law. So even in cases of petty offenses, at common law there was a requirement of full confrontation; the state had to bring in the lab tech to testify. People were prosecuted for such petty offenses as public drunkenness, working on the Sabbath, and not being in church on the Sabbath at common law.

My personal preference is any statute which includes an option for jail time requires full confrontation. If the judge can-not will-throw your client in jail your client should be entitled to full confrontation. The state must bring in their lab tech in their case in chief.

Mitch Ignatoff, Esq.

Anonymous said...

"Even in a speeding ticket case the state would have to bring in the designer and programmer of the particular radar gun used by this police officer so they could be cross examined as to bias in the machine. And every American has a right to the Confrontation Clause in every criminal prosecution."

Why would the designer need to be called? While Crawford is potentially very expansive, your argument goes too far. The desginer of the machine does not make any statement when the machine's result's are admitted into evidence. And the machine's results are not hearsay. All that is needed is somone to lay a foundation regarding the reliability of the machine. This person certainly need not be its designer.

Mitch Ignatoff said...

Many modern machines are computers. If the machine is used almost exclusively to enforce the law-such as radar guns, breathalyzers-then the programmer of the machine is making a statement in anticipation of litigation when he programs the machine.

You cannot assume that a machine is not biased. The bias can be from the design or the programming of the machine.

I agree that a surrogate for the programmer or designer who has first hand knowledge can testify.

On any given day there must be tens of thousands of people arrested for drunken driving in this country. If every one of them hires a lawyer-a long assumption-and every lawyer files a notice under the notice and demand statute-again a long assumption-there is going to be a need for the state to produce the designer and programmer (or surrogate) for each case. This is not the same impact as Guideon v. Wainright had on the states, but it is large.

For the brathalyzer and the radar gun the number of testimonial statements is large because potentially anyon who touched the machine during the manufacturing process could produce a bias. So all the certificates provided that the machine was properly calibrated and tested-12-would require witnesses. The state simply cannot meet that burden. Depositions would be nice, but this gets really expensive.

There are alternative tests-blood for drunken driving-that require less witnesses and are more reliable.

Justice Kennedy was quite concerned about impact, and wanted to know California's experience since that state has no limit on confrontation. I don't know what California's experience is.

Limiting confrontation so that only the arresting cop has to testify and the machine programmer does not is simply not possible if the Court holds that a statement made in anticipation of litigation is a testimonial statement. If we limit confrontation to only those cases that can result in 1 day in jail or more then in a speeding ticket case neither the cop nor the programmmer has to testify. The state proves their case by affidavits and certifications of proper calibration-no witness has to testify. If we limit confrontation to 6 months in jail-the same as the right to jury trial in the 6th Amendment-then many states will reduce their penalties to avoid the expense of confrontation.

How do we address Justice Kennedy's concern?

Mitch Ignatoff

Mitch Ignatoff said...

I think that the impact of confrontation will be to force states to give more non-prosecution alternatives for offenses, ie rehabilitation. In New Jersey there is Pre Trial Intervention which permits first offenders to avoid criminal charges with short term rehabilitation. Ohter states have similar programs, such as Adjourned in Contemplation of Dismissal in NY and Acclertated Rehabilitation in Pennsylvania. If the states are worried about the cost of confrontation they can certainly make this kind of disposition of criminal charges available in a greater variety of matters. This limits prosecution to more serious offenses and second offenders. This answers my question. I woyuld certainly like Justice Kennedy to have this information.

Mitch Ignatoff

Anonymous said...

Speaking as a scientist and as someone who has been issuing out certificates of analysis, certificates of calibration, etc. I can say that the court got it 100% right. A defendant should be able to question the person who signed the certificate to ask about the results, error of the methods, operator to operator errors, etc. Also, scientists work for a company, and if the company says to issue out a certificate when the facts or data don't support it, most will issue - or its their job. Only testimony & cross examination is the only way to properly examine the facts presented by a certificate.

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