South Carolina Criminal Defense Blog

I would have thought that the error of this was self evident, but apparently many states, including Massachusetts, have held that it was not a violation of the Confrontation Clause to allow affidavits of chemists in lieu of live testimony at trial, to prove that a substance is an illegal drug. The Sixth Amendment's Confrontation Clause gives us the right to confront the witnesses against us, in the form of a meaningful cross-examination, and Crawford v. Washington, in 2004, expressly ruled that hearsay in the form of testimonial statements, such as affidavits, does not satisfy the Constitution.

In Melendez-Diaz, released today by the United States Supreme Court, the Court held that affidavits of chemists as to weight and analysis of a drug, admitted in court without the live testimony of the analyst, violate the Sixth Amendment as well:

“Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Id., at 51–52 (internal quotation marks and citations omitted). . . .

In short, under our decision in Crawford the analysts’ affidavits were testimonial statements, and the analysts were “witnesses” for purposes of the Sixth Amendment. Absent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to “‘be confronted with’” the analysts at trial. Crawford, supra, at 54.

The Court rejected the State's argument that the analysts are not "conventional" witnesses and that their statements (the affidavits) were not provided in response to interrogation, holding that it does not matter whether the witness makes their out-of-court statement in response to interrogation or whether the witness volunteers their testimony - the witness who volunteers his testimony is no less a witness against the defendant than a witness who is responding to interrogation.

The Court also rejected the argument that chemists' affidavits should be admitted because they were more reliable than other types of hearsay, pointing out that this was the very rule in Ohio v. Roberts (that evidence with particularized guarantees of trustworthiness was admissible notwithstanding the Confrontation Clause), which was overturned in Crawford:

[The Confrontation Clause] commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross examination. . . . Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.” 541 U. S., at 61–62.

One thing that may make Melendez-Diaz a landmark case in coming years is that the Court expressly recognizes the growing acknowledgment of the unreliability of much of the scientific testing that has been accepted in the courts until this point, a fact that other courts across the country have begun to recognize in recent years. And the Court goes even further, to recognize the fact that analysts who work for law enforcement can and do manufacture evidence at times:

Nor is it evident that what respondent calls “neutral scientific testing” is as neutral or as reliable as respondent suggests. Forensic evidence is not uniquely immune from the risk of manipulation. According to a recent study conducted under the auspices of the National Academy of Sciences, “[t]he majority of [laboratories producing forensic evidence] are administered by law enforcement agencies, such as police departments, where the laboratory administrator reports to the head of the agency. . . .”

. . . And “[b]ecause forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency.” Id., at S–17. A forensic analyst responding to a request from a law enforcement official may feel pressure—or have an incentive—to alter the evidence in a manner favorable to the prosecution.

Another argument rejected by the Court was that if the Court did not allow the use of chemist affidavits, the system would be overwhelmed - to expect prosecutors to bring chemists to testify in every case where a defendant demanded live testimony would burden the system to the breaking point:

Finally, respondent asks us to relax the requirements of the Confrontation Clause to accommodate the “‘necessities of trial and the adversary process.’” Brief for Respondent 59. It is not clear whence we would derive the authority to do so. The Confrontation Clause may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination. The Confrontation Clause—like those other constitutional provisions—is binding, and we may not disregard it at our convenience.

If only the Court held the rest of the Constitution, like the Fourth Amendment, in such high regard. But - I am not complaining. To me this decision seemed like it should have been obvious, yet we were all holding our breath to see what our high court did with it. I am impressed.