The Supreme Court this morning ruled that it’s a violation of the Sixth Amendment’s Confrontation Clause for the prosecution in a drug case to simply admit a sworn lab report, without the chemist’s testimony, to prove that the drugs were controlled substances.
This is what we predicted, of course, making us 3 for 4 for the final four criminal decisions of the term.
It was no suprise to see that Scalia wrote the majority opinion here in Melendez-Diaz v. Massachusetts. Scalia has long been the Court’s main champion of the Confrontation Clause. But it was surprising to see Kennedy not only rounding out a 4-Justice dissent, but writing the dissenting opinion.
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In drug cases, the prosecution needs to prove that the drugs really are controlled substances. So chemists test the drugs, and write lab reports. To make the lab reports evidentiary, they’re sworn to by the chemists. It’s time-consuming to have chemists come to court to prepare or give testimony. So here in New York we typically see chemists testifying only at trial, not in the Grand Jury, where their sworn lab reports are introduced as self-authenticating records. In other states, like Massachusetts, the chemists never even testify at trial, and instead the prosecution relies solely on the lab report to establish that the drugs were drugs.
In the Grand Jury, there is no problem, because there is no right to confront witnesses there. But in the trial setting, there is a Sixth Amendment right to confront and cross-examine witnesses. Lab reports, of course, cannot be cross-examined. So the issue came up as to whether such lab reports are akin to testimony, in which case the Sixth Amendment would require that the chemist actually testify, so that there would be an opportunity for confrontation. Massachusetts believed that lab reports are not testimonial.
In today’s case, Melendez-Diaz was charged with selling cocaine, and at trial the prosecution merely submitted lab reports to show that the substance in question actually was cocaine. By a narrow 5-4 majority, the Supreme Court ruled that this was not enough, and that relying solely on the lab reports violated the Confrontation Clause.
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Writing for the majority, Scalia started by hearkening back to the Court’s recent decision in Crawford v. Washington, 541 U.S. 36 (2004), which held that the Confrontation Clause guarantees the right to confront those who bear testimony against a defendant. If a witness does not appear at trial, then that witness’ other testimony against the defendant is inadmissible unless the defendant had the chance to cross-examine that testimony.
The Court in Crawford explicitly included affidavits and “other pretrial statements that the declarants would expect to be used prosecutorially.” Lab reports, opined Scalia, clearly fit that definition.
Lab reports are something that one would reasonably believe to be used at trial. Not only that, but under Massachusetts law, the sole purpose of the lab reports was to provide evidence for use at trial. “We can safely assume,” Scalia concluded, “that the analysts were aware of the affidavits’ evidentiary purpose, since that purpose — as stated in the relevant state-law provision — was reprinted on the affidavits themselves.”
Therefore, the lab reports are testimonial statements, and are therefore inadmissible unless the chemists testify at trial as well.
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That pretty much ends Scalia’s substantive opinion. He’s finished by page 5. There are a lot more pages to come, however, because he’s only now starting to have fun. He opens this next section with a roaring salvo against the Chief Justice and Justices Alito, Breyer and Kennedy:
We must assure the reader of the falsity of the dissent’s opening alarum that we are “sweeping away an accepted rule governing the admission of scientific evidence” that has been “established for at least 90 years” and “extends across at least 35 states and six Federal Courts of Appeals.”
Scalia then demonstrates that every presumption inherent in those statements is simply false. After a few paragraphs of this, he says “we turn now to the various legal arguments raised by respondent and the dissent.”
There simply isn’t time to go into each of the arguments in detail. Suffice it to say that it is entertaining reading. Feel free to look at it yourself here.
Here’s a quick summary, however, of the points he makes:
1) Chemists are too “accusatory” witnesses. Their evidence is used for the purpose of inculpating defendants.
2) Chemists are witnesses like any other witness. They made observations and drew conclusions, which are now being presented in evidence.
3) Chemist reports are not automatically trustworthy and reliable on their face. They are the records of tests and observations made by human beings. Defendants need an opportunity to assess how reliable those tests and obervations happen to be. Chemists sometimes get things wrong.
4) Chemist reports are not automatically neutral or immune from the risk of manipulation. Chemists work for the police, and they also sometimes have pressures to sacrifice appropriate methodology for the sake of expediency. Chemists sometimes get things wrong.
5) Chemist reports don’t fall within the business-record exception to the hearsay rule, because the regularly conducted business activity here is the production of evidence for trial. They don’t have the same reliability as regular business records kept for neutral purposes.
6) Just because the defendant could subpoena and call the chemists as witnesses doesn’t mean the State has any less burden to do so itself. The Confrontation Clause does not shift the burden of proof to the defense.
7) Requiring chemists to testify at trial will not create an undue burden on states. States with large caseloads already do so, without any undue burden.
Most of these conclusions were telegraphed at oral argument, but it’s fun to read Scalia deal with each one in his own way.
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It’s also fun to read the dissent fight back against Scalia here. But again, we’ll let you read it yourself.