Comments on the Arizona and SG briefs in Smith v. Arizona, Part 2

 Arizona and the SG, and some of the other supporting amici as well, raise once more the supposed multi-witness problem – i.e., the idea that if the Confrontation Clause is deemed to require that an analyst in the position of Rast testify subject to confrontation then there will often have to be a parade of lab witnesses.  I have often (most recently in my amicus brief in this case at 24-26) responded to this supposed concern, which I believe is raised largely as a scare tactic.  A few quick points. 

First, there’s no data presented suggesting that this is a problem in reality.  On the contrary, I’ve presented data indicating that it isn’t.  Part of the reason is that very often defendants have no interest in having a lab witness testify live. 

Second, only those who make testimonial statements that the prosecution chooses to present need testify subject to confrontation.   See Melendez-Diaz, 557 U.S. at 311 n. 1.  Yes, there may be a question of whether the prosecution has left such large gaps in its proof that there isn’t enough to support a conviction, but that is not in itself a confrontation problem. 

Third, most lab tests are performed by a single lab analyst – and if a lab is worried about multiple analysts having to testify, it can organize itself in a vertically integrated way, even for DNA tests.  (Note the case of the army lab, highlighted in my brief.) 

Fourth, in most cases (not all, as the SG points out, but most), retesting is a possibility, so that if in fact a lab witness has to testify and one who otherwise would do so is unavailable, or multiple witnesses would have to testify, it’s a simple matter to have an available witness retest and testify. 

Fifth, the state can reduce any burden by various means.  Notice-and-demand statutes help.  If a lab is far away from where many trials are conducted then – even assuming it is not practical to locate a lab closer – a lab tech who must testify in several cases can do so on one trip by giving depositions.  Courts can be flexible about scheduling.

Finally, even assuming there is some extra expense, that has no constitutional significance.  We have to remember that all times that lab witnesses are witnesses like any other, and they are providing testimony that may be crucial in convicting a person, perhaps leading to a multi-year sentence.  It is not asking too much to require them occasionally to testify in front of the person whose future they may be affecting so gravely.

One other, somewhat related point:  The SG says that in many cases the jury would not even understand what the lab tech reports.  So what?  If a witness testifies in a foreign language, most jurors will not understand the testimony without translation.  We still require confrontation by the witness.  Here, the lab tech is providing crucial information; maybe she can translate it herself, maybe another witness can, but in any event the accused has a right to examine her about how she came to make the assertions she did.