Adam Liptak has an article in the New York Times on the January 11th oral argument scheduled in Briscoe v. Virginia, revisiting the Supreme Court’s decision last term in Melendez-Diaz v. Massachusetts.  You will recall that the court held that the practice of submitting laboratory reports into evidence without a live witness was held to deny the defendant’s confrontation rights.

In light of the problems found with police labs by the National Academy of Science, not to mention the New York State Inspector General, and the speed with which the Supremes have taken on a new case to revisit a decision that’s less than a year old, Briscoe presents a problem.

There are two changes between last June and now.  The first change is the replacement of Justice Souter with Sonia Sotomayor.

This points to one of the institutional failings of the Supreme Court, that a one-person change in personnel might be sufficient to change the interpretation of what constitutes fundamental rights.  After all, how fundamental can a right be if it changes from term to term or person to person.  It reduces the value of a Supreme Court decision to a transitory whim, and suggests that nothing about the law is truly fundamental.

The other change is experience, as states have operated under the Melendez-Diaz rule since last June and are now positioned to offer hard experience where before they had only speculation.

Sounds daunting indeed, Provided you don’t think too hard about the numbers.  There may well be more than 20,000 drug prosecutions a year, but there aren’t 20,000 trials.  If those 35 chemists had to testify 20,000 times, the issue would then be whether the constitutional right to confront witnesses was of sufficient importance to outweight the financial burden on the state to hire more chemists.  While I would still argue that to be the case, the right of confrontation not being contingent on the allocation of resources from the public fisc, we need not go that far.  It’s a red herring.

Experience from Washington and Ohio, which has gone to the system required by Melendez-Diaz, offers a more accurate view:

After the change to the stricter system, demands for court appearances from forensic chemists in Washington spiked to more than 50 a month from around 10, the brief said, before settling around 24.

But it is not clear that the additional work was especially onerous. By the defendant’s calculations, the additional appearances amounted to “a little more than 1,000 additional hours per year — or about one-half a person-year.” The Drug Enforcement Administration, in a letter to a Justice Department lawyer last month, acknowledged that the number of chemists involved in drug cases has dropped to 18 from 23 since 2006.

Ohio, too, has long had a system that complies with a strict interpretation of the Supreme Court’s ruling in Melendez-Diaz. Its 14 forensic scientists made 123 appearances in drug cases in 2008, or fewer than one a month each, according to the state’s solicitor general. They were away from the lab an average of five hours each time.

But Briscoe doesn’t seek a complete return to the pre-Melendez-Diaz days, but rather a hybrid system where the prosecution can introduce a lab report without a live body, and the burden shifts to the defense to request that the chemist be produced for cross-examination during the defense’s case.  Virginia argues that this is a more “efficient” use of resources.

While it may be more efficient, though that’s a point that I would be disinclined to accept at face value, it fails to pass constitutional muster.  The lab report still comes into evidence, its results being published to the jury, without any ability to challenge.  The old adage that “the bell rung cannot be unrung” comes to mind.  The jury still has the “scientific” proof, with the defense left incapable of preventing its admission even if it’s a wholesale fabrication by an incompetent or deceitful lab technician. 

If that’s not reason enough (and it is), the Virginia system compels the defense to put on a case, thus dictating that the defense either waive any challenge to the lab report or accept a strategy that is forced upon it by law.  Further, if the defense has no other witnesses, calling a chemist as the defense’s sole witness in its case in chief serves to highlight the evidence by going through it a second time, and may well leave the defense in the untenable position of seeking to challenge a witness about whom the defense knows little or nothing, and who may or may not offer any meaningful basis to question the analysis.

When one crosses the chemist during the ordinary course of the introduction of the lab report, often by voir dire at the time the prosecution moves to admit the evidence, the testimony is given no greater weight than it would otherwise have, and the defendant’s case in chief isn’t dictated by a rule of “efficiency”. 

Evidence should not be admitted first, and challenged later.  Either it is admissible in the first place or it isn’t admissible at all.  The Virginia procedure turns the sequence on its head, and adds a variety of problematic tactical decisions that invariably inure to the defendant’s detriment.  The Confrontation Clause was meant as a test of the efficacy of evidence, not a threat to the defendant for risking a challenge.

That the Supreme Court has chosen to hear Briscoe, after having eked out a clear decision in Melendez-Diaz, doesn’t bode well for the vitality of the Confrontation Clause.  There doesn’t seem to be much point in taking the time to restate what was stated less than a year ago.  But the worst part of this potential undermining of the right to confront a witness against the defendant is that the trade-off is cash and carry.  That the state prefers not to hire enough chemists to testify is a sufficient reason to deny defendants the right to confront the witness directly.  What if they decide not to hire enough judges to sign warrants? 

But then, the introduction of laboratory analyses is entirely different, since they’re “scientific” and we can certainly trust crime labs to produce fully accurate and honest results, right?