Results of drug test testimonial

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Reports by laboratory analysts are “testimonial” evidence, the U.S. Supreme Court held on June 25.

As a result, defendants have a Sixth Amendment right to cross-examine the analyst who performed the tests. Prosecutors may not simply introduce such reports themselves or via testimony of another analyst.

How that ruling will affect local courts is uncertain.

Justice Antonin G. Scalia, writing for the majority, suggested that, in the ordinary drug case, defense attorneys will continue to stipulate to the nature of the substance, rather than potentially antagonizing the jury.

Milwaukee County District Attorney John Chisholm also said he doesn’t expect the ruling to have a dramatic impact.

“In most cases, the issue is possession, intent, knowledge, or identity, rather than the nature of the substance,” Chisholm said in an interview.

For the most part, Chisholm said, the analyst who performed the test is available anyway.

Only in those cases when the analyst is unavailable, will it be an issue.

Specifically, Chisholm noted cases based on DNA evidence, where the prosecution and trial may be many years after the crime, and the analyst may have left the office years earlier.

Chisholm added that he doesn’t expect the holding to be applied retroactively, either, although it would apply to any cases not yet final.

In 2001, Luis Melendez-Diaz was charged with distributing cocaine in state court in Massachusetts. At trial, the prosecution placed the evidence seized during the arrest into evidence, as well as three “certificates of analysis” attesting that it was cocaine.

Melendez-Diaz objected unsuccessfully on Confrontation Clause grounds, and he was convicted. After Melendez-Diaz exhausted his state court appeals, the U.S. Supreme Court granted review, and reversed.

The court concluded that the evidence fit squarely within its definition of testimonial evidence covered by the Confrontation Clause. That definition explicitly includes “affidavits” such as these, as well as statements made under circumstances in which it would be expected to be used later at trial.

Justice Anthony M. Kennedy dissented in an opinion joined by Chief Justice John G. Roberts and Justices Stephen G. Breyer and Samuel A. Alito, objecting that the majority was reversing 90 years of precedent.

To this, the majority countered that it was only overruling 30 years of precedent, all based on its opinion in Ohio v. Roberts, 448 U.S. 56 (1980), which has already been overruled, in Crawford v. Washington, 541 U.S. 36 (2004).

The dissenters also objected that Crawford is limited to “accusatory” or “conventional” witnesses, who directly accuse the defendant of wrongdoing.

However, the majority found this distinction without basis in the Confrontation Clause. Scalia asked, “Is a police officer’s investigative report describing the crime scene admissible absent an opportunity to examine the officer? The dissent’s novel exception from coverage of the Confrontation Clause would exempt all expert witnesses — a hardly ‘unconventional’ class of witnesses.”

The dissenters further objected that the laboratory reports are not subject tot the Confrontation Clause, because they are neutral, scientific, and not prone to distortion or manipulation.

But the court rejected this, as well, iterating its statement in Crawford that, “dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty.” Crawford, 541 U.S., at 61-62.

The majority also noted that such evidence is not necessarily reliable, but is subject to either fraud or incompetence.

Finally, the dissenters objected that the majority’s holding would unreasonably burden the criminal justice system.

But the majority noted that some states have already adopted the rule it is requiring, subject to notice by the defendant that he intends challenge the testimony, without disastrous results.

In addition, the majority opined that few defendants will choose to challenge the testimony, because the effect will be to highlight and bolster, rather than cast doubt upon, the prosecution’s case.

Tracey A. Wood, president of the Wisconsin Association of Criminal Defense Lawyers praised the ruling, but said it shouldn’t have been an issue. “I thought it was a real straightforward issue,” she said. “Crawford means what it says.”

Wood, who defends many operating while intoxicated cases, said the opinion could have far-reaching consequences in that area as well as drug cases.

“Anyone who had any part in preparing the evidence, which is the strongest evidence in such cases, can be cross-examined,” she said. Wood suggested that even the manufacturers of the equipment used could possibly be subject to cross-examination.

“Defense attorneys need to look at everyone involved in the process,” Wood advised.

Analysis

The opinion reverses governing law in Wisconsin, which holds that the Confrontation Clause does not apply to reports by laboratory analysts. State v. Williams, 2002 WI 58, 253 Wis.2d 99, 644 N.W.2d 919.

However, the opinion will be a hollow victory if, as the majority predicts, defense attorneys don’t challenge the evidence — whether for strategic reasons or because they do not know how to effectively challenge a laboratory analyst in a drug prosecution.

However, the majority opinion, in its discussion of why test results are not inherently reliable, lists several sources that defense attorneys can utilize.

Among them is the National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward (Prepublication Copy Feb. 2009).

Also included in the court opinion is an article by Milwaukee attorney James M. Shellow, of Shellow & Shellow, SC: J.M. Shellow, The Application of Daubert to the Identification of Drugs, 2 Shepard’s Expert & Scientific Evidence Quarterly 593 (1995).

In addition, Shellow will be releasing a book that will be available by December from Matthew Bender entitled, “Cross-Examination of the Analyst in Drug Prosecutions.”

Shellow, a pioneer in defense challenges to the specificity of drug analyst’s’ conclusions, acknowledged that many lawyers have not vigorously cross-examined analysts, concluding there is not much profit in it. But he said, “It is an avenue that must be pursued to provide effective assistance of counsel. As Justice Scalia said, it can be a tool to weed out fraud or incompetence.”