Thursday, June 25, 2009

An initial reaction to the Melendez-Diaz decision

Here are some early thoughts about the majority opinion in Melendez-Diaz v. Massachusetts, 2009 WL 1789468, and Justice Thomas’s concurrence. I’ll try to write in a few days about the dissent.

First, this is a terrific decision. It is the right result, for the right reasons. It clears up a lot of issues that should have been clear. It should have been unanimous; the principal concern it raises is not anything it says, or doesn’t say, but that only five justices joined it, and one of those five is about to leave the Court.

An anonymous commenter to my earlier post said that the Court never made an affirmative argument as to why the lab reports were testimonial. I don’t think that is correct. Part II of the opinion makes the case. It does so briefly because Justice Scalia believes – accurately, I think – that this is an easy case, a “rather straightforward application of Crawford.” First, the Court says that affidavits are in the core class of testimonial statements identified by Crawford, and these certificates are clearly affidavits. Correct. Sufficient for the result. But then the Court gives an underlying basis. Although it had just quoted the three definitions of “testimonial” recited by Crawford, now it just applied one, the right one (or at least the one closest to right) – the statements were made “under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” And under that standard, the case is an easy one; indeed, the sole purpose of the certificates was evidentiary. Easy case.

But the Court goes on to respond to a “potpourri” of counter-arguments. As an introduction, it notes that its result does not upset a long-standing, well-established body of law; most of the decisions allowing lab reports in without a live witness are from the Roberts era.

The first counter-argument it knocks down is that the certificates are not testimonial because they are not accusatory. Lots of witnesses give testimony that is not accusatory. It would wipe out a good deal of the confrontation right if it were limited to statements that are accusatory. Descriptions of a crime scene, narrations of the victim’s whereabouts or of the defendant’s – none of these are accusatory.

Next, the Court knocks down the idea that somehow the Confrontation Clause doesn’t apply because lab technicians are not “conventional” witnesses. It breaks this down into three parts. One is that the witness’s observations were “near-contemporaneous” – to which the Court’s response is essentially, “Not really true, and irrelevant in any event.” Second, the lab analyst doesn’t observe the crime or any human action related to it. That’s pretty similar to the “accusatory” argument – lots of testimony falls outside that narrow category. Third, the statement wasn’t made in response to interrogation. Once again, so what? The Court emphasizes a point it made in Davis – a volunteered statement can be testimonial. (And anyway, it says, this was in response to a police request.) All plainly right.

Third is the argument that somehow the certificates are different because they report on a scientific test. That, says the Court, is just an invitation to return to the pre-Crawford regime of Roberts. Right. And anyway, these statements aren’t always so reliable. But lest anyone believe that the Court’s discussion of reliability signaled that it was hedging on its rejection of reliability as the governing criterion for the Confrontation Clause:
The analysts who swore the affidavits provided testimony against Melendez-Diaz, and they are therefore subject to confrontation; we would reach the same conclusion if all analysts always possessed the scientific acumen of Mme. Curie and the veracity of Mother Theresa.
I didn’t know that Mother Theresa’s reputation for veracity was so strong – but otherwise, clearly correct.

Fourth, the Court blasts the idea that the certificates should be exempt as business or official records. Once again, the Court's basic take is "Not true, and so what anyway?" The certificates don't qualify under the traditional exception because they were produced for use at trial. And if the exception did extend so far, it wouldn't do the prosecution any good. The Court gives a clarification, which was necessary but should not have been, of the relationship between the Confrontation Clause and hearsay exceptions:
Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because – having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial – they are not testimonial. Whether or not they qualify as business or official records, the analysts' statements here – prepared specifically for use at petitioner's trial – were testimony against petitioner, and the analysts were subject to confrontation under the Sixth Amendment.
Fifth is the argument that the power to subpoena the analyst, either under the Compulsory Process Clause or a state statute, adequately fulfills the confrontation right. Justice Scalia gives this argument the back of the hand that it deserves, dismissing it in a single paragraph – though several states had adopted it. And it was dangerous, too, because the principle was limitless and would have posed a significant threat to the continuing vitality of the Confrontation Clause. I confess I was a little sorry to see this part of the opinion; my petition in Briscoe v. Virginia, which has been held pending this decision, had raised this issue, and I would have loved to argue it. Instead, we get handed a victory without argument. Darn.

Finally, and perhaps what most motivated the dissenters, is concern about the burden to the judicial system. Once again, the response is basically two-fronted. Sure the Confrontation Clause, like other constitutional guarantees, makes prosecution more burdensome, but that does not give us leeway to ignore it. At greater length, the Court expresses doubt about "dire predictions": "Perhaps the best indication that the sky will not fall after today's decision is that it has not done so already." Plenty of states do not rely on certificates (or on surrogate witnesses), and they have managed. I will write more about this issue later, but for now just a couple of quick points: First, most defendants, as the Court says, have no desire for the lab technician to appear. Second, the Court properly notes that a simple notice-and-demand statute is valid. Under such a statute, if the prosecution gives timely notice of of intent to use a certificate, the defendant must make a timely demand for the witness to appear or give up the right. Correct.

Finally, one brief point about Justice Thomas's concurrence. He has, incorrectly in my view, placed emphasis on formality. But these certificates were as formal as could be. I don't think this was a particularly difficult case for him.

More at a later time. Now, I'm going to celebrate my 20th anniversary with my wife. A better gift from the Court than Giles, which was decided a year ago today.

21 comments:

Mark said...

I agree fully with your comments. This was an easy case that should have been unanimous. Giles still disappoints me, however, as it leads to perverse results. But Scalia got it right on this one. It's a shame they handed this one down at the same time as the strip search case. Melendez was certainly the more important decision in the long run.

John Thacker said...

I'm very, very interested in Sotomayor's opinion on Crawford, Melendez-Diaz, and the entire legalist vs. pragmatic line of cases-- Apprendi, Ring, Booker, Arizona v. Gant, and even Kyllo v. United States.

Probably the most significant line of cases where Justice Souter has been a consistent member of a five justice majority. As such, it should be the issue in her nomination.

Anonymous said...

Please elaborate on Point 5: How does this opinion overrule state statutes that put the burden on the Defendant to subpoena the analyst? The opinion says "that is not so" in response to the dissents belief that the opinion will invalidate notice-and-demand statutes and goes on to specifically say that "the defendant always has the burden of raising his Confrontation Clause objection; notice-and-demand statutes simply govern the time within which he must do so. States are free to adopt procedural rules governing objections." Then in footnote 12 Scalia specifically says that issue will remain for another day.

Richard D. Friedman said...

Part III.E of the opinion addresses the subpoena issue in one paragraph:

Respondent asserts that we should find no Confrontation Clause violation in this case because petitioner had the ability to subpoena the analysts. But that power-whether pursuant to state law or the Compulsory Process Clause-is no substitute for the right of confrontation. Unlike the Confrontation Clause, those provisions are of no use to the defendant when the witness is unavailable or simply refuses to appear. See, e.g., Davis, 547 U.S., at 820 (“[The witness] was subpoenaed, but she did not appear at ... trial”). Converting the prosecution's duty under the Confrontation Clause into the defendant's privilege under state law or the Compulsory Process Clause shifts the consequences of adverse-witness no-shows from the State to the accused. More fundamentally, the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court. Its value to the defendant is not replaced by a system in which the prosecution presents its evidence via ex parte affidavits and waits for the defendant to subpoena the affiants if he chooses.

law said...

In light Of MELENDEZ how would court treat m. e. confrontation cases where cause of death is an issue and substitute m. e. is called?

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Heather said...

CONGRATS ON YOUR GRANT TODAY!

Troglodytum Brachiandum said...

I was also struck by the part of Kennedy's dissent which seemed to imply "come one, come all" for testimony - that testimony on scientific matters would necessitate the appearance of all members of the testing group. It was a weak argument. In forensic cases, a local authority certifies the validity.
Lovely stuff, though. I'm a non-attorney citizen hobbyist regarding SC decisions.

Heather said...
This comment has been removed by the author.
Richard D. Friedman said...

Belated thanks to Heather for the congratulations!

Caleb said...

It was a remarkable experience to read this opinion against the backdrop of 1) my position as an assistant district attorney practicing in the Commonwealth of Massachusetts and 2) my experience as your former student. I was - and am - struck most by Scalia's reference to the (often) decidedly inconvenient constitutional principles that bind us all. It was the right result, but that doesn't mean it will be an easy one to live with. It's hard to describe the effect this has had on criminal practice in Mass. - or anywhere else, I imagine. It occurs to me that at least from a Law and Economics perspective this will force prosecutors to prioritize which crimes are the most important, so to speak. Justice Kennedy is right at least insofar as he calculates the theoretical impossibility of getting chemists - "analysts," as it were - to testify, given the current numbers.

Suffice it to say I was never much of a Scalia fan before this decision. I'm sure I don't agree with him on everything, but I trust something about him now. And inasmuch as he generates trust - even in me, a lowly line ADA in the trenches of a local district court - he creates a thing of value.

Anonymous said...

Are Medical Examiner reports considered non-testimonial? I have a case where on the day of trial the State listed a substitute ME. The original ME is in Nova Scotia and we are in Florida. Is he "unavailable"?

habeaslaw said...
This comment has been removed by the author.
habeaslaw said...

Did anyone see the Washington Post article today? http://www.washingtonpost.com/wp-dyn/content/article/2009/07/14/AR2009071403565.html

THE STATEMENT IN THE FIRST PARAGRAPH IS ABSOLUTELY INCORRECT FOR A NUMBER OF REASONS, "Lab sheets that identify a substance as a narcotic or breath-test printouts describing a suspect's blood-alcohol level are no longer sufficient evidence, the court ruled."

First, if the Df is not challenging the reliability of the intoxilizer, I believe the intoxilizer raw data is immaterial and irrelevant to the issues before the court at trial. For example, in notice and demand states, doesn’t a failure to object to the reliability essentially amount to a stipulation of reliability? I don’t think Scalia has any problem with “notice and demand” statutes. So why don't DAs ask DF to stipulate to the reliability of the intoxilizer results prior to trial? An intoxilizer is not a declarant so data generated by that intoxilizer would not be subject to confrontation. However, I believe basic rules of evidence require that some foundation be laid before admitted such data. Therefore, when raw data and conclusions are strictly generated by a machine, unless the DF is challenging the reliability of the results, why would he waste the court's time subpoenaing the person who administered the test?

Moreover, if DF makes such a motion on the day of the trial, why don't DAs just consent to a continuance and schedule a Daubert Hearing? That is if the Defense contends the results of the intoxilizer are reliable, but for the administrator's incompetence. If that is not what the Df is alleging, then it appears that the DF is wasting the courts time and his motion to confront the person administering the intoxilizer is arguably frivolous.

Second, identifying whether a substance is or is not the narcotic alleged is generally not a material issue that trial attorneys are challenging. Is it? However, if they choose that as the defense and opt to challenge it during the trial, they have every right to do so under the Due Process Clause of the Fourteenth amendment (not only the Confrontation Clause). The only thing that Melendez does is require the state to afford the DF an evidentiary hearing on reliability of an analyst’s analysis if he objects to the results and/or reliability of those results.

I think the following dicta from Scalia clearly indicates that when a DF challenges the reliability of the analysis and conclusion, he's entitled to cross-examine the analyst at some point during the criminal proceeding.

See Scalia's dicta from Melendez-Diaz - "The defendant always has the burden of raising his Confrontation Clause objection; notice-and-demand statutes simply govern the time within which he must do so. States are free to adopt procedural rules governing objections. It is common to require a defendant to exercise his rights under the Compulsory Process Clause in advance of trial, announcing his intent to present certain witnesses. There is no conceivable reason why he cannot similarly be compelled to exercise his Confrontation Clause rights before trial. Today's decision will not disrupt criminal prosecutions in the many large States whose practice is already in accord with the Confrontation Clause." Melendez-Diaz v. Massachusetts 2009 WL 1789468, 12 (2009)

This doesn’t necessarily mean it has to occur at trial, however. Does it? Nowhere in Scalia's opinion could I find him saying this confrontation must occur at trial. In fact, at one point he uses the phrase "before trial." On the other hand, if a DF notifies the court that this is a critical part of his defense, then doesn't Due Process require the court to allow the confrontation at trial. He does have a right to control his defense right?

In sum, Melendez did not extend, abrogate, or modify the test in Crawford. The test for confrontation continues to be the same. As such, these prosecutors (and this reporter) are clearly either not fully informed or making a mountain out of a mole hill.

habeaslaw said...

I retract this sentence...

"The only thing that Melendez does is require the state to afford the DF an evidentiary hearing on reliability of an analyst’s analysis if he objects to the results and/or reliability of those results."

habeaslaw said...

I suppose I'm only venting this way because I'm on a number of crim defense list serves and the 'chatter' tells me that MD has judges and DAs stumped in N.C. and it appears DWI attorneys will abuse this case for merely frivolous reasons. I'm not ok with that conduct because it could mean that the person who needs it most will get a judge who is sick of the antics surrounding the MD decision...then, that defendant will be the one to suffer as a result of the unnecessary delays DWI attys have caused the courts.

Don L said...

This is Professor Blinka's early reaction to Melendez-Diaz. http://law.marquette.edu/facultyblog/2009/07/06/confrontation-and-criminal-trials-whats-actually-in-play/
He notes a general trend regarding the Court's disdain for scientific evidence.

Mitchell E. Ignatoff said...

Professor;

Congratulations on your wedding anniversary.

I am troubled by footnote 1 of the opinion. It seems to me that the Court's holding is limited to requiring the analyst to testify. In the case of breath testing machines I want to attack the documents showing that the machine is reliable. The New Jersey Supreme Court has held that these documents show the machine is reliable and that these documents are business records.State v. Chun. Since the alcotest-the breath machine-is used solely for the prosecution I can argue that these documents are prepared for litigation-they are testimonial. I was hoping the holding would be more than that; that these documents are testimonial. DWI trials in New Jersey are before a judge only-no jury.

Am I wrong?

Mitch Ignatoff, Esq.

Mitchell E. Ignatoff said...

Professor-

Let me add that I want to challenge the reliability of the alcotest. In State v. Chun the court held that it was conclusively reliable.

Mitch Ignatoff, Esq.

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