Supreme Court Report

Taking Trials to Court

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Every day in criminal trials, prosecutors in­troduce reports from crime labs as evidence. States carried out tests in 1.9 million drug cases alone in 2006, according to the U.S. Drug Enforcement Administration (PDF).

Beyond that, prosecutors also sometimes put on the witness stand informants who themselves face crim­inal charges. The U.S. Supreme Court will take up cases in November that challenge both practices in a term heavy on criminal cases.

In Melendez-Diaz v. Massachusetts, the court will decide whether a defendant has a right to demand live testimony at trial from a crime lab technician. It is the latest test of a defendant’s Sixth Amendment right to be “confronted with the witnesses against him.”

The justices breathed new life into the confrontation right in 2004 when they rejected a prosecutor’s use of an absent witness’s tape-recorded statement to the police. When testimonial evidence is at issue, the Consti­tution gives the defendant a right to confront and to cross-examine the witness, the court said in Crawford v. Washington.

Since then, the court has pressed ahead to decide what qualifies as testimonial evidence. Two years ago, it said in Davis v. Washington that a recorded 911 call for help was not testimony and therefore the words could be played for the jury if the victim were missing. At the same time, a police officer’s crime-scene interview with an abused spouse was like testimony and could not be introduced as evidence if she failed to testify.

In June, the court held a defendant’s right to confront the witness survives even when the witness is dead. A prosecutor may not introduce at trial a police officer’s interview with a woman who was later shot and killed by the defendant, the court said in Giles v. California.

Stanford University law professor Jeffrey Fisher, the winning lawyer in Crawford, will be back before the court Nov. 10 to argue that crime lab reports are like an out-of-court statement prepared for the prosecution. Forensic reports are not “purely objective,” he said in his brief. They “reflect complicated, subjective interpretations of imprecise scientific tests.”

Lawyers for the New York City-based Innocence Project, weighing in on the defendant’s side, said faulty crime lab work played a role in more than half of the 200 exonerations they have won. Scandals involving police crime labs in Baltimore, Houston and elsewhere also undermine “the myth of infallibility” for lab results, they said in an amicus brief.


Fisher’s client, Luis Melendez-Diaz, was arrested in a car outside a Boston Kmart and later convicted of distributing cocaine. Four plastic bags with a white powder were found on one of his cohorts, and 19 bags with a yellowish substance were found in the car. He disputed the cocaine was his. At trial, his attorney also objected to introducing the lab report that found the yellowish substance to be cocaine.

In upholding his conviction, the Massachusetts Supreme Judicial Court described the drug-analysis report as “akin to a business record.” Martha Coakley, the state’s attorney general, agreed, saying “laboratory reports do not accuse any individual of criminal conduct but merely record the results of objective, scientific testing.”

The National District Attorneys Association in Alex­an­dria, Va., said it would be “physically impossible” to have a lab technician at every trial. If the court were to rule that a defendant has a right to demand a lab tech when­ever a lab report was introduced as evidence, it would overwhelm the system and “bring effective prosecution of narcotics cases to a standstill,” the group said.

Neither side is insisting on an all-or-nothing rule. Fisher says a state may require that a defendant or his lawyer give advance notice that they want to cross-examine a lab technician at trial. “Our position is that a defendant should have the right to insist that the prosecution introduce forensic analyses through live testimony. But that does not mean forensic analysts will always have to be there. Defendants will rarely insist on such testimony,” he says.

The Innocence Project says false testimony from jailhouse informants has played a role in wrongful convictions, including the case of Thomas L. Goldstein. In 2004, he was freed after serving nearly 25 years in prison after being convicted of shooting a man on a dark street in Long Beach, Calif. Goldstein, an ex-Marine, lived a block from the murder scene, but no physical evidence linked him to the crime. Four eyewitnesses described the shooter as black or Mexican, while Goldstein is white.

However, Edward Fink, a heroin addict who had been arrested 35 times, said Gold­stein had confessed to the murder. Fink also falsely testified that he had not been promised nor had he received benefits for cooperating with prosecutors, even though senior officials in the Los Angeles District Attorney’s Office knew he had received reduced sentences for past testimony.

In 2005, Goldstein sued former Los Angeles District Attorney John Van de Kamp and his top deputy, alleging that their failure to supervise the use of jailhouse informants led to his wrongful conviction. “This suit is 29 years in the making, and it’s about accountability,” Goldstein says. “It will put every prosecutor’s office on notice that they need a system for sharing infor­ma­tion. And by doing so, it will result in fewer wrong­ful convictions.”

Prosecutors were often unaware that informants had testified repeatedly and benefited from doing so, says Alexandra Natapoff, a professor at the Loyola Law School in Los Angeles. “The left hand didn’t know what the right hand was doing,” Natapoff says. “The culture was that the identity of snitches must be kept secret.”

Goldstein’s suit ran into the well-established rule that prosecutors are immune from civil suits over their actions in court. But the San Francisco-based 9th U.S. Circuit Court of Appeals cleared the way for the suit to proceed, saying the allegations involve duties that “are administrative and not prosecutorial in function.”

In Van de Kamp v. Goldstein, to be argued Nov. 5, the court will consider whether district attorneys, as well as line prosecutors, are absolutely immune from suit. Van de Kamp says the 9th Circuit’s decision could open the door to a flood of similar suits. “If this were the law, defense lawyers and civil counsel would be suing all the time. You can always allege a ‘failure to train’ or a management failure,” he says.

Van de Kamp, who is also a former California a­t­torney general, sees a note of irony as well. He has been the chairman of the California Commission on the Fair Administration of Justice, a group whose mission is to prevent wrongful convictions. It recommended—and the state legislature passed—a bill to forbid the use of jailhouse informants when their testimony could not be corroborated. Last year, Gov. Arnold Schwarzenegger vetoed it, saying it “would enact a broad solution to a perceived problem that arises in very few criminal cases.”


The court also has several search-and-seizure cases on the fall docket. In Arizona v. Gant, the justices will decide whether officers may search a parked car without a warrant if they arrest its driver standing nearby. In the past, the court has said officers may quickly search a car when they arrest the driver on the theory that a gun or other weapons may be hidden. The Arizona Supreme Court ruled that rationale did not justify the search of Rodney Gant’s car. He had left his vehicle and was handcuffed in the back of a squad car when an officer returned to search his car. The officer found drugs and a gun.

In Herring v. United States, the court will decide whether the drugs and a gun seized from a stopped pickup truck must be excluded as evidence because the arresting officer learned belatedly he did not have authority to stop the vehicle. An Alabama officer checked and was told that Bennie Herring had an outstanding arrest warrant, and he pulled over Herring’s truck. Minutes later, a police department clerk called back to say the arrest warrant had been canceled. The 11th U.S. Circuit Court of Appeals at Atlanta said a “good faith mistake” by a police clerk does not trigger the exclusionary rule.

And in Pearson v. Callahan, the court will decide wheth­er police can be sued for using an informer to gain permission to search a house. A Utah court threw out the evidence seized from his home, and the justices will decide whether the law was sufficiently clear to permit a suit against the officers who carried out the search.

David G. Savage covers the U.S. Supreme Court for the Los Angeles Times and writes regularly for the ABA Journal.

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