News Release

Supreme Court: Cross-Examination Crucial To Exposing Junk Science and Bogus "Experts"

Washington, DC­ (June 25, 2009) – A criminal defendant’s right to confront the witnesses against him includes the right to challenge the testimony of state crime lab technicians through cross-examination of those witnesses, the U.S. Supreme Court held today. The Court held that a state may not submit a drug analysis report in lieu of live testimony by the crime lab technicians over a defendant’s hearsay objection. The case is Melendez-Diaz v. Massachusetts, No. 07-591. The National Association of Criminal Defense Lawyers, along with the National Association of Federal Defenders and the National College for DUI Defense filed a friend-of-the-court brief in the case.

NACDL’s president predicted that challenging the prosecution to prove that its experts and evidence are sound could help restore public confidence in police forensic laboratories, which have been rocked by scandal in recent years.

The defendant, Luis Melendez-Diaz, was convicted of distributing cocaine after police found 19 small bags of white powder in a police car in which Melendez-Diaz had been transported after his arrest on suspicion of drug trafficking. The state offered as evidence a certified report from the department of public health laboratory stating that the bags contained cocaine, and the defendant objected on hearsay and Confrontation Clause grounds. Massachusetts law provided that such reports are “prima facie evidence” of illegal narcotics. The Massachusetts appeals courts upheld Melendez-Diaz’s conviction.

The U.S. Supreme Court reversed on Sixth Amendment confrontation grounds. “There is little doubt that the documents at issue in this case fall within the ‘core class of testimonial statements’” the Court said, citing its 2004 decision in Crawford v. Washington. The lab report stated that the substance in question at Melendez-Diaz’s trial was cocaine—the precise testimony the analysts would have been expected to provide at trial. Such reports are “functionally identical to live, in-court testimony, doing ‘precisely what a witness does on direct examination.’”

“You cannot cross-examine a piece of paper,” said NACDL President John Wesley Hall. “You can’t test the truth of a lab report without cross-examining the expert.”

Hall noted that the Court repeatedly cited the recent report of the National Academies’ National Research Council, which found that forensic evidence is not immune from manipulation or incompetence – there have been documented cases of fraud and error time and time again. “Police even have a name for it – ‘drylabbing’ – where a lab technician submits a report of tests that were never performed.”

Such problems were in the national spotlight over a decade ago when NACDL filed a Freedom of Information Act suit against the U.S. Department of Justice for the results of the Inspector General’s investigation of the FBI Lab. More recently, the FBI ceased performing comparative bullet lead analysis after it was found that the technique’s capabilities were grossly exaggerated and misled juries. But problems of incompetence and fraud have persisted at the state level, the NRC report found.

“As the majority noted, cross-examination tests lab analysts’ ‘honesty, proficiency, and methodology,’” Hall said.

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Stanford University law professor Jeffrey L. Fisher, who also argued Crawford, argued the case for petitioner Melendez-Diaz. Fisher is a director of Stanford''s innovative Supreme Court Litigation Clinic, and also serves as a co-chair of NACDL’s highly-successful Amicus Curiae Committee. Jeffrey Green, of Sidley Austin, Washington, D.C., filed the amicus curiae brief on behalf of NACDL. Green is deputy chair of the committee.

On the Web:

The Supreme Court decision:

NACDL’s Amicus Curiae brief:$FILE/MelendezDiaz_Amicus.pdf

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The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.