The Supreme Court heard argument this morning in Smith v. Arizona. It's going to be a couple of days until I can give a fuller report, but for now: I think it is highly likely that Smith will get a reversal. I don't think more than one or two justices, if that, will adopt the principle that admission of a testimonial statement in support of an opinion is not admission for the truth of what the statement asserts, when the statement supports the opinion only if it is true. The Court seemed more interested in the enduring question of what are the bounds of the category of testimonial statements. And Justice Kavanaugh asked each of the three advocates what they thought of Justice Thomas's formality-solemnity test. But the Court seemed strongly disposed to conclude that the question of whether the statements here are testimonial had not been preserved for review; the Court might be prepared to take another case to reconsider thee "primary purpose" test, but I don't believe it will be here.
5 comments:
Kavanaugh & Thomas definitely want to address whether Rast's statements were testimonial and what test (primary purpose/objective person; targeted individual; or formality/solemnity) governs the Govt's introduction of hearsay in the context of forensic evidence.
I agree, however, the Court is unlikely to address that critical issue in this case.
I also agree that the Court will hold that Rast's statements were introduced to prove the truth of his assertions and Rule 703 doesn't alter this conclusion or permit introduction as a conduit around the Confrontation Clause.
I was present for the argument, and agree that this case will most likely fall in favor of the petitioner, based on the questioning and demenor of the Court. As a forensic scientist however I want to correct a mischaracterization in the briefing and in the comments here.
I wonder if this Blog owner, commenters, or any of the Justices has ever met or spoken with a forensic scientist, or spent a day in a lab? Forensic scientists are not looking to :get out of going to court" or avoid court appearances to defend their work and that of their lab - to the contrary, by and large they relish it (notwithstanding the DOJ's questionable prospect of witnesses being "savaged" by the defense, which was brought up twice).
Testimony is what makes forensic science "forensic". Forensic scientists are educators of the trier of fact on scientific matters, and the opportunity to educate is one of the things that attracts scientists to this profession.
Laboratory management and state and local government that pay the bills, definitely want to manage their scarce resources, so sending the fewest number of witnesses to any given proceeding to meet the constitutional burden, actually makes witnesses available for many more proceedings, and more confrontation. Ultimately however the number of forensic scientists is a fixed resource who can only be in one place at a time, so with more restrictive rules on admissibility, expect more competition to have a witness available when you need them.
The sky did not fall after Melenedez Diaz, and wont fall after Smith, but with each ruling in this series it does place a greater and greater burden on labs, making it increasingly difficult to provide witnesses for cases where they are actually needed, and to keep up with the next cases that they will eventually testify to.
As was aluded to in this blog, defendants largely don't want the state's impressive witnesses to appear and describe in detail the findings of their examinations, let alone a parade of witnesses all supporting one another. What the defense does enjoy however is the gamesmanship of the roll call - subpoena the whole lab and see if they show up, if yes, then stipulate or plead, if no, move for suppression. This happens a LOT. That's detrimental to defendants who have a legitimate question about limitations of the testing being offered against them by the state.
On the notion of having one analyst work a case from beginning to end, thats impractical - what would an automobile cost if we still built cars that way? Labs are dramatically under-resourced, and segmented workflows, automation, batching of cases, all involving more people in the testing, are the innovative ways we have tried to cover those shortfalls. In the event of a restrictive ruling by the Court, labs will continue to perform tests, continue to send people to court, continue to ask for money to meet the casework and testimony demand (and be disappointed), but the scientists will come to work each day, collect their paycheck, enthusiastically and respectfully go to court, testify or not, and go back to work the next day.
I know a lot of forensic scientists, but I dont know any who are arguing that we should save money or time by denying a defendant their constitutional right to confront, or that we should return to the Melendez Diaz world of affadavits in lieu of testimony. Furthermore, we acknowledge that the cost of providing that testimony should not be a consideration in terms of this ruling. However, once we see and measure the impacts, let's hope that labs are appropriately resourced to meet the courts increased expectations of witness availability.
BKL,
I've had the pleasure of working with many forensic scientists over by 40+ years as an attorney.
In my experience, none of the forensic scientists I worked with cared if the accused was convicted or acquitted. And they were more than willing to subject themselves to the crucible of cross-examination.
Accordingly, to say that their work product in the lab was produced for the primary purpose of establishing an accused guilt or with the goal of targeting a particular defendant is a stretch.
The Court, in deciding what hearsay evidence is testimonial, would be wise to distinguish between forensic declarants and ordinary fact declarants such as eyewitnesses to or victims of crimes.
But, as I said previously, it doesn't appear that the Court will revisit its testimonial approach or the various formulations of what constitutes testimonial hearsay in this case.
In very belated response to the comments of BKL, which I very much appreciate and which somehow I just noticed recently: I don’t doubt that forensic scientists are, by and large, perfectly willing to go to court to explain their work. And I certainly agree that labs should be better funded. In fact, let’s suppose that every time a criminal trial depended on lab results a lab analyst came to testify. Would that be horrible? Our system depends on witnesses testifying. I don’t think lab witnesses are different from others in that respect. Now don’t get me wrong. I’m glad that in most cases that depend on lab tests a lab witness doesn’t actually have to come to testify in court. (I think they’ve testified in writing by making a report.) But the attitude presented by the states seems to be that we work from a baseline of zero lab witnesses in court and anything else is an imposition. Lab witnesses are witnesses, witnesses are an integral part of our criminal justice system, and prosecution witnesses must testify live if the defendant stands on his rights.
I’m sensitive to the gamesmanship issue that BKL mentions, of the defendant insisting that lab witnesses show up, and then when they do waiving the live testimony. I think that this can be lessened to some extent by notice-and-demand statutes. (I've also suggested other legislative fixes. See https://confrontationright.blogspot.com/2011/01/michigan-state-that-does-it-right.html) A prosecutor could also lessen it somewhat by adopting a policy that if the defendant insists on the witness showing up and the witness does so, then the prosecutor will put the insist on putting the witness on the stand; usually the defendant would not want that. Also, if the lab tech is a considerable distance from the courthouse, several depositions could be arranged for a given day. Michigan courts adhered to the rule of Melendez-Diaz long before the Supreme Court adopted it as a matter of law, and the gamesmanship issue has never been debilitating.
BKL says that a vertically integrated lab is impractical. A few responses: (1) For certain simple tests, that isn’t at all true, because ordinarily only one person performs the test. (2) For complex tests like DNA, I assume that division of labor is the most efficient way of organizing a lab, as BKL says. But it is possible for a lab to be vertically integrated. That is how the US Army Criminal Investigation Laboratory (which may be better financed than most) operates. See United States v. Katso, 74 MJ 273, 276 (2015), cert. denied, 136 S.Ct. 1512 (2016). (3) It is not anybody who participates in a test who is a witness for Confrontation Clause purposes, but only a person who makes a testimonial statement that is presented against the accused. (4) Retesting is almost always possible, so even if a defendant demanded the presence of several lab witnesses for a given test, the lab could usually have one person do that particular test over again, mooting out the demand. (5) The bottom line is that the so called parade of witnesses doesn’t happen. A study of Michigan cases, which I presented some years ago on this blog, showed that even in DNA cases an average of 1.25 lab witnesses testifies live, and virtually never more than two.
https://confrontationright.blogspot.com/2011/01/michigan-state-that-does-it-right.html;
https://confrontationright.blogspot.com/2010/12/is-there-multi-witness-problem-with.html
And, by the way, yes, I've spent considerable time talking to forensic scientists about the practicalities of testing.
In very belated response to the comments of BKL, which I very much appreciate and which somehow I just noticed recently: I don’t doubt that forensic scientists are, by and large, perfectly willing to go to court to explain their work. And I certainly agree that labs should be better funded. In fact, let’s suppose that every time a criminal trial depended on lab results a lab analyst came to testify. Would that be horrible? Our system depends on witnesses testifying. I don’t think lab witnesses are different from others in that respect. Now don’t get me wrong. I’m glad that in most cases that depend on lab tests a lab witness doesn’t actually have to come to testify in court. (I think they’ve testified in writing by making a report.) But the attitude presented by the states seems to be that we work from a baseline of zero lab witnesses in court and anything else is an imposition. Lab witnesses are witnesses, witnesses are an integral part of our criminal justice system, and prosecution witnesses must testify live if the defendant stands on his rights.
I’m sensitive to the gamesmanship issue that BKL mentions, of the defendant insisting that lab witnesses show up, and then when they do waiving the live testimony. I think that this can be lessened to some extent by notice-and-demand statutes. (I've also suggested other legislative fixes. See https://confrontationright.blogspot.com/2011/01/michigan-state-that-does-it-right.html) A prosecutor could also lessen it somewhat by adopting a policy that if the defendant insists on the witness showing up and the witness does so, then the prosecutor will put the insist on putting the witness on the stand; usually the defendant would not want that. Also, if the lab tech is a considerable distance from the courthouse, several depositions could be arranged for a given day. Michigan courts adhered to the rule of Melendez-Diaz long before the Supreme Court adopted it as a matter of law, and the gamesmanship issue has never been debilitating.
BKL says that a vertically integrated lab is impractical. A few responses: (1) For certain simple tests, that isn’t at all true, because ordinarily only one person performs the test. (2) For complex tests like DNA, I assume that division of labor is the most efficient way of organizing a lab, as BKL says. But it is possible for a lab to be vertically integrated. That is how the US Army Criminal Investigation Laboratory (which may be better financed than most) operates. See United States v. Katso, 74 MJ 273, 276 (2015), cert. denied, 136 S.Ct. 1512 (2016). (3) It is not anybody who participates in a test who is a witness for Confrontation Clause purposes, but only a person who makes a testimonial statement that is presented against the accused. (4) Retesting is almost always possible, so even if a defendant demanded the presence of several lab witnesses for a given test, the lab could usually have one person do that particular test over again, mooting out the demand. (5) The bottom line is that the so called parade of witnesses doesn’t happen. A study of Michigan cases, which I presented some years ago on this blog, showed that even in DNA cases an average of 1.25 lab witnesses testifies live, and virtually never more than two.
https://confrontationright.blogspot.com/2011/01/michigan-state-that-does-it-right.html;
https://confrontationright.blogspot.com/2010/12/is-there-multi-witness-problem-with.html
And, by the way, yes, I've spent considerable time talking to forensic scientists about the practicalities of testing.
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