Monday, March 09, 2009

Still no decision in Melendez-Diaz

The Supreme Court has completed this sitting without issuing its decision in the Melendez-Diaz case, in which it will decide whether a forensic lab report asserting that a substance contains cocaine is testimonial for purposes of the Confrontation Clause. The next date on which the Court is scheduled to issue opinions is March 23.

20 comments:

Anonymous said...

Melendez-Diaz is one of only two Nov. arguments that has not been issued. And Scalia has yet to write an opinion from that term. Maybe good news, or maybe evidence that he's having trouble getting to 5 votes.

Richard D. Friedman said...

My guess is that Scalia will write a majority opinion reversing the Massachusetts court. But we shall see. I had thought the decision might even be unanimous, but the longer the wait the less likely that appears.

mitch ignatoff said...

Professor-

What I observed at the argument was Justice Kennedy quite concerned with the impact their ruling would have on the states. Justices Breyer and Ginsburg also seemed quite concerned.

I'm sure the justices have seen the report from the national academy of sciences. There may be other areas of impact they are concerned about. I suggest a short article from you might sway 1 justice to join what we both hope is Scalia's opinion. And I am still of the opinion that there is a difference between a machine made primarily for law enforcement purposes and one made for commercial use. The former is subject to the confrontation clause, the latter not.

Mitch Ignatoff, Esq.

mitch ignatoff said...

Professor-

To follow up, there are two big areas of impact, drugs and alcohol. In drug cases the anticipated rulig would permit the defense to get the gas chromatograph readings and have our expert to compare them. The lab would have to provide chain of custody to prove that what was tested was from my client. The gas chromatograph is a commercially available instrument that is used in labs around the country. It is not created for law enforcement purposes. No confrontation right to cross examine someone personally familiar with the machine.

For alcohol-DWI, Dui-the breath testing machine is specifically created for law enforcement purposes. We are entitled under the confrontation clause to cross examine someone who is personally familiar with that machine as to hardware and software.

DWI must be the most prosecuted crime in the country. California permits confrontation with regard to the breath testing machine. They have a pool of lab experts that testify in each and every dwi case before a jury. If California can do it other states can too.

DNA? Not done by machine. If done for law enforcement purpose, lab expert must testify.

I suggest s hort artticle from you done now, before the Justices decide, might sway the hold outs.

Mitch Ignatoff

Anonymous said...

It's driving me crazy.... And I agree -- the longer it takes, the worse it might be.

Pamela Metzger

Anonymous said...

The Mass. AG was hard pressed to answer many of the Court's questions. I didn't get the impression there was much division among the justices that this type of evidence is testimonial. The division came with the concern over the impact it will have on state budgets. So, the delay could from disagreement over answering the question of how a defendant can waive this right. To a lesser degree, perhaps there's a concurrence dealing with whether the sworn oaths themselves are or are not testimonial.

Richard D. Friedman said...

I don't think I understand the last sentence of the last comment.

Also, going back a ways, Mitch speaks of a machine being subject to the confrontation rights. But machines aren't subject to the right; only people can be witnesses. There is an argument that if a machine is made primarily for law enforcement purposes and the software determines that in a given circumstance the machine will report X, where X is indicative of, say, presence of cocaine, then the coding of the software is a testimonial statement for confrontation purposes. But there is no need to reach this issue in Melendez-Diaz, any more than there is a need to reach the issue of whether a statement generally certifying an instrument as accurate is testimonial.

I do hope the Court is not preparing to say that scientific statements are not testimonial; that would be completely unjustified. And I also hope that they are not going to give in on principle and say that surrogate witnesses are OK -- that is, that it is acceptable to admit a lab report in the absence of the author or another person who observed the events and conditions asserted by the report so long as someone generally familiar with the lab's procedure testifies. That, of course, is not what Massachusetts did in this case, and there is no basis for allowing a prosecution to introduce a witness to testify, "I didn't see what happened here, but I've seen similar events, so let me tell you what happened here."

Anonymous said...

If laboratory reports are testimonial, wouldn't "a statement generally certifying an instrument as accurate" also be testimonial? If not, why?

Richard D. Friedman said...

The lab report is a statement made with rspect to a particular incident; it is clearly made in contemplation that it will be used in a prosecution related to that incident. This is not true of a statement ceritfying in general that an instrument is accurate. I am not saying that the general certification is not testimonial, but only that holding that the lab report is testimonial does not compel the conclusion that the general certification is. Some courts have drawn this distinction. (Moreover, I don't think there generally is a need for certification, but that is another issue.) Put more bluntly, the Supreme Court should not fear that if it holds for Melendez-Diaz a necessary consequence will be that in each case in which it wants to present a machine read-out the person who tested the machine will have to testify. That is an issue for another day.

Anonymous said...

I agree that a statement that "generally, machines of X sort work," is different from the lab test situtation. But as I understand intox-texting machines, a government employee does a test on the machine and concludes: "It is working properly." It seems to me that this is the same as saying, "I ran a test on X substance, it is cocaine." I suppose one could argue that the intox-testing machine situation is not in reference to a particular prosecution, but the argument seems rather weak. The tester of the machine knows what the machine is used for: to show, at trial, somone was intoxicated. If one is to accept Mass.'s argument in Melendez, that the confrontation clause looks only to statements recieved with the intent to accuse a particular person of a crime, the intox-testing machine situation would not create a testimonial statement, but in all liklihood, neither would a drug analysis laboratory report.

Richard D. Friedman said...

I don't think "I did a test on this machine, and it is working properly," asserted outside the context of any particular incident, is the same as "I did a test on this particular substance, and it is cocaine." The second one is, or should be, clearly testimonial -- and I sure hope Melendez-Diaz so rules. The tester might not know who the accused will be, but the statement is made with respect to a specific incident. I am inclined to agree with the anonymous commenter that the first one is testimonial as well, but I do think there is a difference that the Court might find appealing and that would not do great violence to the Confrontation Clause -- the statement is not made with reference to any specific incident or setting involving a potential criminal violation. (I think that a statement like the one in Giles, made before the incident at issue in the trial but with reference to another criminal incident in the same relationship, is clearly distinguishable.) It is made about a particular machine, but so far as any criminal occurrence is concerned it is made utterly in the abstract. Whether it is nevertheless testimonial therefore involves a question additional to the one in Melendez-Diaz, and is best left for another day. First, I hope the Court decides Melendez-Diaz right!

Anonymous said...

Regarding surrogate experts - you correctly note that that was not what Massachusetts did in this case. However, I would imagine there are cases pending (at the petition for cert stage) before the Court where a "surrogate" was used. I'm not familiar with the way the court accepts/rejects cases, but could the delay in Melendez-Diaz be because the Court wishes to address the surrogate issue in another case?

Richard D. Friedman said...

That's hard to imagine. I suppose the logic would be, "We're inclined to hold that this is testimonial, but we don't want to do so unless we know surrogates can be used, and we don't want to decide that in the context of this case, so we'd better hold it until we get and take a case that presents that issue squarely." Apart from the dubious reasoning -- whether surrogates can be used should not affect whether the lab report is testimonial -- I don't think they ever work that way. I can imagine them saying, "This is testimonial, but surrogates are OK." That would be very unfortunate, I think. If they have any doubt about the proposition that surrogates are not OK, they should leave that issue to the future.

Anonymous said...

And I think Jeff made that point quite clearly during the oral argument.

Pam

Mitch Ignatoff said...

Professor-

I agree that only people make statements.

It seems to me that the issue the court wants to decide is broader. Justice Kennedy wanted a decision that applied to all lab tests. The court has also not denied cert. in State v. Sweet, 195 N.J. 357 (2008) in which petitioner filed for a writ of certiorari. Here the question is whether the confrontation clause is violated when an official signs a certification that the breath machine is accurate. in New Jersey this certificate prevents cross exmination regarding how the machine operates and how accurate it is.

There was a clear concensus that the business record rule does not survive the confrontation clause. I think the real difference under discussion is Palmer v. Hoffman and the Clause. Palmer is cited for the distinction that if some statement is prepared in anticipation of litigation it is not admissible. Both sides cited to this case as all important. Scalia said that the outer limit of confrontation is statements that were made under circumstances which would lead an objective witness to reasonably believe the statement would be available for use at a later trial. Is that any different than statements made in anticipation of litigtaion?

Note that the states have been uniformly holding that once a certification of proper operation of a machine has been issued you cannot cross examine as to the operation of the machine-except California. And even there you cannot cross examine as to the theory of the design of the machine-at least in breath test cases.

My distinction is that if the machine is commercially available for purchase by anyone then under Palmer the design of the machine is not subject to cross examination.You cannot cross examine anyone who has personal knowledge of the operation of the machine. Nor does the state have to provide a witness as to how the machine operates and how accurate it is-altho they do in California. So in Melendez-Diaz where the state did use a machine which is commercially available to anyone the state does not have to provide this kind of witness.

I hope I am wrong. But the declarant-the designer of the machine-would not expect it to be used prosecutorily when he made the statement. However, in Palmer the statement was an accident report, which could be used to improve operation as well as be used in anticipation of litigation.

Help me out here.

Mitch Ignatoff

mitch ignatoff said...

Professor-

All the states, in breath test cases, except California have held that inspection of the machine is a regular business function, and not a law enforcement function. Once the machine is inspected they do not have to provide a witness as to how the machine operates. You cannot cross examine as to accuracy or bias. So if the programmer designs the machine so that the results are biased you are out of luck.

Mitch Ignatoff

mitch ignatoff said...

Professor-

The imprression I got from watching the oral argument is that there is no disagreement from any member of the court that the business record rule was invented considerably after the confrontation clause was enacted, and thus it does not survive the Clause.

I also think that prosecution is not a business. The Clause was ment to limit prosecution, government. Insofar as government, prosecution, does some tasks routinely, uniformly, they still have to bring a witness to court to testify to it and be subject to cross examination.

I thought the oral argument was not clear on this point. It certainly was not clear from the issue framed in the briefs that the court had already decided that the business record rule does not survive the clause. the question is how far does the clause go. Justices Kennedy, Breyer and Ginsburg were looking for some means of limiting the impact of the Clause.

In response to Chief Justice Roberts’ question, p.4, lines3-13 petitioners agreed that you do not have the right to an analyst at a particular level. P5, lines 9-14. When I am trying a criminal case I want the guy who actually did the test to cross examine, not someone else. The Confrontation Right must include the person who did the test, not simply some supervisor. The actual author of the report is who I want to cross examine, not the person he reports his results to. Of what use to me is the supervisor’s report if he relied on someone else? What’s the point of Confrontation if I can’t get the actual witness?

Justice Kennedy made this point in his question, p.5 lines 17-23. You might answer this question that if the lab guy can’t remember what he said, than the past recollection recorded hearsay exception is eliminated by the Confrontation Clause. Defendant wins because the state cannot prove the substance is cocaine. And defendants will try more cases until the lab hires enough analysts so that the analysts perform few enough tests so that they remember each one. And Justice Roberts makes this precise point. P. 19 lines 7-18.

From Justice Breyer’s question on p. 17 in which he asks petitioner's views on a workable rule through Justice Alito’s question on p. 20 and through Justice Breyer’s and Kennedy’s question on 22 petitioner ducks the question. I think petitioner's brief in part answers this question when you cite Gideon v. Wainright for the burden the Court imposed on the states. The Confrontation Clause imposes a lesser burden.

In rebuttal petitioner's state that they have no objection if the prosecution introduces machine generated data. P.58, lines 12-14. But what if the machine is biased? I am sure you have heard the phrase “garbage in, garbage out” used with computers. Do petitioners really mean that the Confrontation Clause is limited so that we cannot force the state to put on witnesses about how this particular machine did the tests and cannot explore the machine for bias? After all, any machine is simply a series of statements made by engineers and programmers, among others. Can the computer program be biased? Of course it can. See the website of Dr. Michael Hlastala at the University of Washington (state) medical school.

Justice Souter than asks petitioner why petitioner doesn't insist on examining the person who actually conducted the test and petitioner agrees that defendant may have that right. P. 61 lines 12-21. Again, petitioner means that whether the machine is biased is not subject to the Confrontation Clause? P62, lines 22- p63 lines 10.

My impression from watching the argument and reading the transcript is that the Court will buy that a statement prepared in anticipation of litigation is testimonial. And that these lab reports were clearly prepared in anticipation of litigation. Petitioners should not limit their argument to proving the elements of the case; a statement is testimonial if it is prepared in anticipation of litigation. A win means that a lot more lab techs will be required by the states. But the Court is very concerned about imposing this burden on the states. They want to know where to draw the line, ie where does the Confrontation Right end?
Analytically the Confrontation Right has no limit. If I’m defending a person accused of speeding I want the person who designed and programmed the radar gun there so I can explore whether the gun itself is biased or inaccurate. In one case this is not much, but there are millions of speeding tickets issued annually. The system could grind to a halt because everyone would insist on going to trial in the reasonable hope that there are not enough programmers to testify. And this is a right every American has.
I think statistics from California will be helpful, as well as comparing them with another state that only recently granted a right of Confrontation in felonies-New Jersey for instance.

I suggest that the Confrontation Right be limited to cases where the statute violated permits the judge to sentence the defendant to jail-any jail time at all (or at least 24 hours). To most people I represent this separates the minor charges from the more serious ones, the charges they will hire a lawyer for and defend from those they won't bother with the expense.

The 6th Amendment has a limitation in it-defendants have a right to a jury trial when they can be sentenced to jail for more than 6 months. D.C. v. Clawans, 300 U.S. 617 (1937); Duncan v. Louisianna, 391 U.S. 145 (1968); Baldwin v. New York, 399 U.S. 66 (1970); Blanton v. North Las Vegas, 489 U.S. 538 (1989). This could be a limit on the Confrontation Right too. (As an aside, the existing practice in the nation regarding DWI is more than 6 months in jail for a third offense). But I assume that the Melendez-Diaz Court wants to reach more than just those offenses which have a jury trial right.

Crawford says that at common law there was no limit to confrontation in non-felony cases since confrontation applied to misdemeanors.I would be satisfied if the limit was any jail time. However, I believe that giving more confrontation results in more, not less, trials, and more need for state expert witnesses. A trial, however, is every American’s right.

I suggest a supplemental brief to answer the Court’s concerns about practical limits on the Confrontation Right. My sense is that petitioner's oral argument left the Court confused. And I think that the Court did not fairly raise the issue they wanted answered.

mitch ignatoff said...

Professor-

One constitutional issue is whether at common law there was a right of confrontation in petty offense cases. And then to what extent. I know the Americans hated the British Vice Admiralty Courts, which mainly fined colonists. Given this it seems to me that the confrontation right is co-terminus with the right to trial-any trial, with or without a jury. A brief on this issue would certainly answer any 'practical' limitation on the confrontation right.

Mitch Ignatoff

Anonymous said...

Still no opinion.

Anonymous said...

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