By David E. Frank and Kimberly Atkins
Massachusetts Lawyers Weekly
The Supreme Court last week heard arguments by Attorney General Martha Coakley, among others, in a Massachusetts case that could have a significant impact on the prosecution of drug offenses and other crimes in this state.
In Melendez-Diaz v. Massachusetts, the court will decide whether a state forensic-lab report prepared for use in a criminal case is testimonial evidence subject to the demands of the Confrontation Clause, as set forth in the landmark 2004 Crawford v. Washington decision.
The defendant argued at the Nov. 10 hearing that, because the reports are subject to the Confrontation Clause, prosecutors are required to call lab analysts to testify at trial during their case-in-chief.
If the court rules that such evidence is testimonial, prosecutors who frequently rely on such reports in drunk-driving, fingerprint, DNA, drug and firearm trials will no longer be allowed to present such evidence without first calling live witnesses.
In an interview conducted in Boston prior to the hearing, Coakley noted that there are not enough chemists working in Massachusetts to handle the added responsibilities that would come with an adverse ruling.
“If this case is decided against us, it will be a disaster for at least misdemeanor District Court prosecutions,” she said. “We cannot afford to, nor would we be able to, have attendants come in for every case that we prosecute. “
Coakley, the first elected Massachusetts AG to argue before the Supreme Court since AG James M. Shannon in the 1980s, said this case seemed like a natural fit for her.
“When we learned that the Supreme Court took the case, we were surprised, but decided that it was a good case for me to argue because of my time spent as a criminal practitioner,” said Coakley, a former Middlesex County district attorney. “If this were a case on energy or some other environmental issue, there are people in the office who know more about those issues who I would have deferred to, but with my experience in the criminal justice system, I felt confident that I had a good feel for the way these principles are supposed to work. “
Goal is to reduce delay
In 2002, defendant Luis E. Melendez-Diaz was indicted in Suffolk Superior Court on cocaine-trafficking charges. The defendant and his co-defendant were accused of selling drugs in a store parking lot. When prosecutors at trial sought to introduce lab certificates accompanying two batches of drugs recovered in the case, defense attorney John P. Moss Jr. of Cambridge objected, citing the Supreme Court’s recent ruling in Crawford.
Superior Court Judge Barbara J. Rouse overruled the objection and admitted the certificates under G.L.c. 111, §12 and 13.
Section 12 requires the Massachusetts Department of Public Health to “make ... a chemical analysis of any narcotic drug ... when submitted to it by police authorities ... provided, that it is satisfied that the analysis is to be used for the enforcement of law. “
Section 13 states that the “presentation of such certificate to the court by any police officer ... shall be prima facie evidence that all the requirements [of Section 12] have been complied with. “
The provision is intended “to simplify proof of chemical analyses performed routinely and accurately by a public agency and ‘to reduce court delays and the inconvenience of having busy public servants called as witnesses’” in every case in which drug analysis evidence is presented.
The defendant was convicted and sentenced to a three-year to three-year-plus-one-day state prison term.
‘It’s classic hearsay’
During her oral arguments before the Supreme Court, Coakley contended that the statute does not violate the Confrontation Clause.
Thirty-five states have similar rules, according to amicus briefs.
“The drug analysis certificates at issue in this case are not testimonial statements that have been covered by the Confrontation Clause,” Coakley told the justices, in her first appearance before the court. “They are not the statement of a percipient witness who has observed past behavior of the defendant. [T]hey are official records [of] independently verifiable facts. “
But Justice David H. Souter questioned Coakley’s argument.
"[What if in] a circumstantial evidence case the witness comes in and says, ‘Yes, I saw a blue car go down the street at 10 o’clock’?” Souter asked. “Is that testimonial?”
“It is, your honor,” Coakley replied.
“And the distinction between that and the lab report saying, ‘The substance that was shown to me which I analyzed was cocaine. ' What’s the distinction?” Souter asked.
“In the first instance you have a witness to an event in a particular case that can be tied to, perhaps, behavior of the defendant that’s deemed to be criminal. It’s classic hearsay,” Coakley said. "[But] in this instance ... we have a protocol set up by a state statute that indeed does test substances other than those definitely headed for litigation. “
“I don’t see the difference between the two,” said Justice Antonin Scalia. “I mean, the one, he saw the blue car [and] here the witness says this is cocaine. [A]nd in both cases, that fact is deemed essential by the prosecution for the conviction. “
Coakley argued that finding such reports testimonial will require lab report preparers to appear as trial witnesses.
“As a practical matter, in Massachusetts it would mean that District Court misdemeanor drug prosecutions would essentially grind to a halt,” she said.
Justice Anthony M. Kennedy was not swayed, noting that “the state of California and other populous states have for, I take it, some number of years been able to function quite effectively under the rule that [the defendant] proposes. “
Opinions about test results
Jeffrey L. Fisher, a Supreme Court litigator and professor at Stanford University Law School, argued for the defendant. He said the reports are essentially opinions about test results and should be subject to cross-examination.
“Introducing forensic laboratory reports, such as the certificates at issue in this case, is the modern equivalent of trial by affidavit,” Fisher said. “The documents are sworn formal statements crafted for the express purpose of proving a fact that is an element of a criminal offense. They are introduced in lieu of having the analyst called as a witness to the stand. They are therefore quintessentially testimonial. “
Kennedy wondered what probative value calling such a witness would have.
“Suppose the tests were by John Smith, assistant lab technician,” Kennedy said. “And you call John Smith, and you say, ‘Is this your signature?’ ‘Yes. ' ‘Do you remember doing this test?’ And he says, ‘I do thousands of tests. I don’t remember. I can tell you the way I always do them. ' I mean, is that what you want?”
Fisher stood his ground. “Even in a test where the analyst doesn’t remember and, as you put it, it’s a standardized test, there are still plenty of questions the defendant might want to ask,” he said. “What test was performed? What’s the error rate on that test? How do your protocols work? What are your experience and credentials in analyzing those?”
A decision from the court is expected later this term.
Kimberly Atkins is a reporter at Lawyers USA, a sister publication of Lawyers Weekly.
Copyright 2008 Dolan Media Newswires