Thursday, January 20, 2011

Michigan – a state that does it right.

Last month, shortly after I posted results of the study of Michigan trial transcripts done by students under my supervision, Mark Dwyer, the long-time and very capable Chief of the Appeals Bureau in the District Attorney's Office and a regular reader of this blog, asked:

If your reports let you answer, I think it would be interesting to know in how many of the DNA cases the witness or witnesses who testified were present at every stage of the DNA processing. I suspect that this would be a rare circumstance. Have you a view on whether one lab witness "familiar" with the testing will suffice, if he or she was not present at every stage?

I responded:

An important question. For now, I'm going to stick with the comments I made in footnote 9 of the amicus brief I just posted. I hope to have more to say next week.

So far as what I think should suffice, I will continue at least for now to stick with the comments in my brief. But I can add more about the Michigan practice because I have spent some time with John Collins, director of the Michigan State Police Forensic Science Division. (I met with him shortly after Mark posed his question, which is why I hoped to supplement my answer before this, but I haven’t gotten around to doing it until now.) I am delighted to say that, though he is a Michigan State guy, John strikes me as a very capable, dedicated, and thoughtful public official, and he clearly believes that his labs are able to comply with constitutional requirements without having to bear an undue burden.

So, in answer to Mark’s question, no, ordinarily there would not be one person who observed every phase of DNA testing. But ordinarily, according to John (who graciously consented to allowing me to report on our conversation), there are no more than three lab technicians who perform work on a given sample. So the prospect of having to present a nearly endless chain of witnesses to introduce the results of one DNA test is really a strawman for the Michigan state lab, given the degree of vertical integration that it uses to conduct these tests. If in a given case all three analysts were required to testify live, John says they would do so without question. If in all cases all three were required to testify, it would indeed create a heavy burden on the lab as currently funded. But this doesn’t happen. Recall that the data in my amicus brief show that on average even in DNA cases that go to trial only 1.25 lab witnesses testify. For all the fears expressed by the Melendez-Diaz dissenters, the reality is that even for a complex test like DNA matters have settled down so that the number of witnesses who have to testify is quite reasonable.

It also bears emphasis that the reason why as many live witnesses testify as do is attributable at least in large part to the demands of the prosecution rather than the defense. That is, often the prosecution wants its technical witnesses to testify live, to make a vivid impression. (To put it bluntly: When prosecutors want lab witnesses to testify live, they do so, and no controversy arises; when defendants want lab witnesses to testify live but the prosecutor doesn’t, or can’t produce the witness, the prosecutor (in states unlike Michigan that before Melendez-Diaz did not follow proper procedures) complains about how burdensome the production is.) One piece of information I learned from John strengthens this point: Michigan has developed facilities for lab technicians to testify, on consent of the parties, by remote video. John is obviously interested in fostering this practice. He reports that it is the prosecutor rather than the defense that most often is unwilling to allow this cost-saving convenience.

John did express concern on one point: Too often, he said, defense counsel refuses to stipulate to presentation of a lab report until the witness appears ready to testify; then, counsel, (1) recognizing that the prosecution is able to present the witness live and (2) not really wanting live testimony, stipulates to admissibility of the report. I don’t believe John has any data on how often this happens, and it clearly is not a debilitating problem. But it does seem to me that the problem could be cured by a simple statutory fix: If the defense declines a pre-trial request to stipulate to admissibility of the report (or, in those states having a notice-and-demand statute, makes a demand), it must assert that it does not intend to stipulate to admissibility of the report if the witness appears at trial ready to testify. There are some statutes that require the defense to assert that it is making the demand in good faith or that it intends to cross-examine. The first of these strikes me as too vague and the second as too demanding; perhaps the defense wants to see what the direct testimony is, expose the witness to the trier of fact, and only then decide whether to cross-examine or not. But a statute that says in effect that if the defense demands confrontation it must really want that the witness testify live and not merely that the prosecution be put to the test of bringing the witness to court seems entirely reasonable to me. And I think it would greatly reduce this problem, however significant or insignificant it might be: A defense lawyer will not want to have to explain very often why it belatedly decided to stipulate to admissibility of the report after declining to before. And I suppose if this isn’t good enough a state could adopt an even stronger statute, providing that if the defense declines a timely request to stipulate (or makes a timely demand), and the witness appears at trial prepared to testify live, the court must call the witness to give live testimony.

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