In another 5-4 decision, though borne of strange bedfellows, the Supreme Court has reversed in  Bullcoming v. New Mexico and held that the lab report of the defendant’s blood alcohol content was testimonial, and therefore requiring an actual, living, witness with knowledge of its creating to take the stand before the report could be admitted.  And so the Melendez-Diaz line of confrontation clause decisions isn’t dead yet.

The four justice dissent, however, raises collateral issues that reflect the court’s adoration of anything that bears the scent of science.

In these circumstances, requiring the State to call the technician who filled out a form and recorded the results of a test is a hollow formality. The defense remains free to challenge any and all forensic evidence. It may call and examine the technician who performed a test. And it may call other expert witnesses to explain that tests are not always reliable or that the technician might have made a mistake. The jury can then decide whether to credit the test, as it did here. The States, furthermore, can assess the progress of scientific testing and enact or adopt statutes and rules to ensure that only reliable evidence is admitted. Rejecting these commonsense arguments and the concept that reliability is a legitimate concern, the Court today takes a different course. It once more assumes for itself a central role in mandating detailed evidentiary rules, thereby extending and confirming Melendez-Diaz’s “vast potential to disrupt criminal procedures.”

The reality, as if brutally well-known by anyone who has confronted a basic and widely accepted scientific test in court, is that its essentially impossible to dispute it.  Collateral attacks aren’t permitted, a point that eludes normal, thoughtful people but remains the rule nonetheless.  Direct attacks are essentially impossible, as the truth is that even the live witness, the technician or chemist who performed the test, has no memory of any particular one, doing hundreds that all look alike.  And if they did it wrong, fudged the results or even lied about the tests in their entirety, it’s not like they’re going to admit it.

The majority upholds the confrontation clause as a matter of constitutional principle, despite the inconvenience it causes in convicting a defendant.  The Constitution says that a defendant is entitled to confront a witness against him, and so it must be.

The dissent sees it as a waste of time and resources, one less technician running tests to be used to prosecute criminals and one more witness on the stand who will recite the liturgy of courtroom conviction science.  Do we really need to waste a state employee’s time this way?

Is the dissent aware of police crime labs whose output is so tainted and unreliable as to require the shuttering of the lab?  Let’s assume they are.  Are they aware of  the report of the National Academy of Science?  Probably.  So why are they fighting the confrontation of scientific evidence, knowing that it’s sacred reliability is hardly a given?

The failing of science in the courtroom is a hugely troubling problem.  It’s unlikely that the dissent is endorsing bad, unreliable evidence.  It’s not the love of junk science.  Rather, it’s the recognition that this scientific evidence has become the foundation of much of criminal law, the conclusive method of obtaining convictions for generations.  To think anything less of it is to acknowledge that the system has been convicting people, locking them away, for decades without valid proof.  It is an admission of abject failure.

In a sense, the dissent makes an excellent point when it speaks to the formalistic approach taken by the majority, giving the appearance of fairness by virtue of confrontation when the fact remains that, aside from the outlier case where the tech completely blows his testimony and gets caught red handed falsifying the test, the testimony is so utterly routine and banal as to be hardly worth the time to listen to it. 

If the cross-examination of the testing technician, or perhaps his supervisor if it turns out over time that a few steps away from the machine is close enough for testimony, accomplishes nothing, then what the heck are we doing it for?

There are two reasons.  First, because there are those outlier cases where a technician’s testimony goes south, and somehow he admits under oath that knows nothing about how to handle, calibrate, work the magical box.  Every once in a while, a witness from the lab tells the truth.  It may not offer much systemic comfort, but it means an awful lot to the guy in the dock at that moment.  The Constitution protects his rights, not just those of some amorphous majority of defendants.

The second reason is that lines must be drawn when it comes to confrontation, as is expressly protected by the Sixth Amendment.  As the rules of evidence demonstrated over the years, when step by step testimonial evidence was taken off the list requiring a live witness because courts found it needlessly inconvenient and sufficiently reliable through rhetorical argument to just get it in and done, it was all too easy to go with the flow when it came to the admission of evidence.  Evidence grows increasingly routine as it’s admitted in case after case, until we forget all the reasons why it may be less than accurate, or maybe even deliberately false.  It’s probably fine.  It’s probably valid.  And that’s good enough not to be bothered challenging it anymore.

This cannot happen, and the majority, by drawing a somewhat bright line despite the very practical arguments of the dissent, seeks to hold the line.

It’s really all too easy to go with the probabilities, that trials will take the common path, that the evidence upon which the prosecution relies will be admitted, suffice to provide conclusive scientific proof that the defendant is guilty, and the jury will convict.  There are times in every trial lawyer’s life that he wonders, “why do I bother?”  The answer, of course, is clear.  We have no choice to do otherwise.

The dissent owns the practical side of the argument, and in the vast majority of cases will be proven correct that this is just another waste of time in the name of formalism.  But without a doctrinaire belief that there must be lines drawn that preserve the minimal, often futile, safeguards like the Confrontation Clause, we might as well just ship defendants straight from arrest to prison, as there will be nothing to stand in the way of conviction.  And this bizarre amalgamation of Supreme Court justices that comprise the majority say they aren’t going to let that happen. So the confrontation clause lives for another day, and the science of conviction will cost the state the live testimony of an actual witness.

It may not be much, but it’s better than nothing.