[Justice Kennedy] foresaw ”a very substantial burden” on the prosecution and on the courts, and told counsel advocating for confrontation that he was significantly underestimating the impact. But, as the hearing moved along, Kennedy saw as “a very important point” that California has not experienced such a burden and “gets along all right” with summoning lab analysts to the stand with some frequency...I like the implicit federalism point here. Just as state legislatures can be "laboratories of democracy," state courts can be laboratories of rights, and here we see the California courts serving as an experiment in working with an expansive version of the right to confront witnesses in a criminal trial. Instead of needing to wonder about the burdens of dealing with a new requirement, the Supreme Court can look at the results in California.
November 11, 2008
Does a criminal defendant have a right to confront lab chemists?
Lyle Denniston reports on the oral argument in Melendez-Diaz v. Massachusetts:
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Just as state legislatures can be "laboratories of democracy," state courts can be laboratories of rights
Criminal procedure is a world away from gay marriage.
As a practical matter, in California, lab results are usually presented to the jury by way of stipulation, unless they really are in issue.
In other words, if the defense argument is that their guy didn't possess the contraband, they usually don't try to dispute the lab result that it is, in fact, contraband.
There really is a lot of strategy involved - I do believe that the defense has a right to confront these lab techs to make sure their results are accurate.
But the defense needs to be careful because they don't want to look like they're only trying to delay or harass the prosecution - because that can hurt their own credibility.
Bottom line, in California, it hasn't proved to be too burdensome.
The one time I served on a jury in San Francisco (possession w/ intent to sell 50 grams of crack), both sides brought laboratory chemists to testify.
As a chemist myself, I was quite intrigued--and horrified! Horrified because both of them were total boobs.
Turns out the police dept's chemistry dept uses methods so antiquated and imprecise I would reject them in a peer review.
And the defense called this crazy woman from San Jose who basically made stuff up on the stand about the cocaine molecule to sound impressive to non-chemists.
The judge I thought was very good. Later he became a US attorney, one of the ones dismissed by George Bush and then-Atty Gen Gonzales.
You can't end the story there!
Innocent or not?
And I know -- it should read Not Guilty, but Not guilty or not? sounds funny to me.
Instead of needing to wonder about the burdens of dealing with a new requirement, the Supreme Court can look at the results in California.
And the bungling of one named Dennis Fung ;)
Oh, and my favorite thing about that trial was the DA's closing argument.
During his turn, the defense attorney said, yes, it's 50 g of cocaine--we grant that--but my client was not going to sell it.
The DA came back with something very simple. He said, "Be wary of lawyers who want you to convict their clients of lesser charges." Then he repeated it, slowly. And that was it.
Oh, he was guilty. I proud to say I went home with the open mind the judge asked us to maintain. But drifting off to sleep that night, my mind couldn't help but settle on the guilty verdict.
And I'm very happy to say the jury gave every bit of evidence serious consideration. It was all very congenial and professional and I felt really good about and proud of the justice system afterwards.
Good, as the jury deliberations go.
My one jury experience was also very affirming. I can't understand the lengths people go to avoid it, like it'll be nightmare or something.
In my case, it was not guilty on account of moronic asst. district attorney not proving a damn thing.
and before she chimes in, let me just say I don't follow the mindset of living miles and miles away from people so that getting to the county seat to sit on a jury is wicked onerous, either. :)
That is to say, not something I'd do.
"And the defense called this crazy woman from San Jose who basically made stuff up on the stand about the cocaine molecule to sound impressive to non-chemists."
Several years ago I was asked by an old friend who is a criminal defense attorney whether I'd be willing to serve as an expert witness when they were defending people against charges involving meth production (I'm a professor in a chemistry department). I pointed out to him that any prosecutor worth a damn should be able to very quickly establish that I am not an expert in the area of meth chemistry. Perhaps I was wrong.
I suppose the only danger might be the assumption that a competent lab technician might be a horrible public speaker and be badgered into saying something discrediting by an unscrupulous defense attorney. But as a chemist myself, I think that's based on a silly stereotype. Much of the process of getting a degree in chemistry requires oral exams, oral presentations, defenses of theses and dissertations. Even undergraduates at many universities have to give short talks or present a poster.
"I pointed out to him that any prosecutor worth a damn should be able to very quickly establish that I am not an expert in the area of meth chemistry."
Ya know, I would have to say I'm not either, and small molecule synthesis is my game. Those people use old school bucket chemistry, process-type methods, and jimmied-up lab "equipment" I'm not really familiar with.
I pointed out to him that any prosecutor worth a damn should be able to very quickly establish that I am not an expert in the area of meth chemistry.
That's a fact for the jury to weigh, like any other. College professors typically make excellent expert witnesses because they are used to explaining things to people. You are also more likely to be seen as impartial, because you're not an expert witness for a living. Your technical qualifications should be sufficient: meth lab chemistry has to be pretty basic, because it's carried out by high school dropouts in trailer parks. Emphasize the similar processes you know about, and review the meth making literature.
I once attended a talk by the Santa Clara County criminalist. She was an excellent public speaker, used to testifying, who could connect with the level her audience was at. She covered the various kinds of physical evidence left at crime scenes, and how they could be connected to the defendant.
One point she made which stuck was the degree of reliability of different types of evidence. Judges and defense attorneys don't question DNA evidence much any more -- its ultrareliability is well-established. But now fingerprint evidence is seen to be much less reliable, and is more often called into question.
Right now,the Los Angeles Police Department's lab has a backlog of over 7,000 DNA tests that are necessary to cross-reference against evidence kits from rapes and child abuse cases, many of which have already passed the time limitations for prosecution, and many others rapidly approaching their time limits.
Why?
No money in the coffer so the victims just have to forget about ever catching and prosecuting those responsible.
No money in the coffer so the victims just have to forget about ever catching and prosecuting those responsible.
Or they could pay for it themselves and help their own case. And could publicize their own plight, and perhaps cough up donors to pay for the truly indigent.
"Your technical qualifications should be sufficient: meth lab chemistry has to be pretty basic..."
Actually, because the first reactions in the illicit production of meth produce aqueous solutions of hydrogen iodide, I'd say that meth lab chemistry is pretty acidic...
Just a little witticism for my chemist friends out there...
duly noted. I was a chemist in a past life. :)
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