Friday, September 15, 2017

Scotusblog piece on the effects of Melendez-Diaz

Scotusblog recently ran a piece by Andrew Hamm titled Looking back at predictions in Melendez-Diaz v. MassachusettsHere is a link. 

I think it's fair to say that this article bears out the conclusion that, despite the dire predictions made by Justice Kennedy of how devastating Melendez-Diaz would be to the criminal justice system, the actual effect has been rather modest.  There was, at least in some states, an initial period of adjustment, as one would expect.  And it may be that defendants' hands in plea bargaining have been strengthened slightly -- but that's not inappropriate, because if defendants' rights have been ignored and are then restored, their bargaining hands should be strengthened.  The Scotusblog article reports the findings of a Ph.D. dissertation by Catherine Bonventre concluding that the effects of Melendez-Diaz have been "none to minimal.  It also uses a study that I supervised, previously reported on this blog, indicating that even in DNA cases adhering to the confrontation right does not result in a parade of lab witnesses.

The Scotusblog article also summarizes the argument made by Sean Driscoll that the case of Annie Dookhan, who was cross-examined 150 times without her years of lab fraud being discovered shows the futility of cross in this context.  I certainly don't think it's a panacea, and it may be that a determined liar like Dookhan will often not be exposed on cross.  But I think the principal value of cross, or the possibility of it, in this context is that the practice of lab techs is likely to be considerably more careful if they know they may have to answer questions under oath about what they have done.

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