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by Peter Moskos

June 26, 2009

Testifying Crime Lab Techs

In the Supreme Court round up, I'm happy that 13-year-olds can't be forced to strip for suspicion of carrying ibuprofen. Clarence Thomas once again comes out as the dufus court jester in the 8-1 decision: “Preservation of order, discipline and safety in public schools is simply not the domain of the Constitution.” No, Sir. But strip searches are.

What is shocking (really) is the decision, overturning 90 years of precedent, that lab analysis must testify in court. Leaving aside the constitutional issues for now, this is a huge decision. And the court broke down in a very unusual way in its 5-4 decision.

According to the New York Times 500 employees of the FBI laboratory in Quantico conduct more than a million tests a year. Justice Kennedy wrote in dissent: “The court’s decision means that before any of those million tests reaches a jury, at least one of the laboratory’s analysts must board a plane, find his or her way to an unfamiliar courthouse and sit there waiting to read aloud notes made months ago.” Just like a cop. And then the will be postponed.

Constitutionally, from my amateur perspective, it seems like a sound decision (Remember that just because you don't like something doesn't mean the constitution is or should be on your side).

For the majority, Scalia writes, "the best indication that the sky will not fall after today’s decision is that it has not done so already. Many States have already adopted the constitutional rule we announce today." I hope he's right. But the sky really may fall, at least at bit.

How from the lab is supposed to testify? One person? Everybody?

On this I believe the dissent when they say, “Requiring even one of these individuals to testify threatens to disrupt if not end many prosecutions where guilt is clear but a newly found formalism now holds sway.”

Compare that with the majority opinion, “Nor will defense attorneys want to antagonize the judge or jury by wasting their time with the appearance of a witness whose testimony defense counsel does not intend to rebut in any fashion.” Really? That ain’t how it is in the Eastside District Court.

Regardless, the court writes:
The Confrontation Clause [of the 6th Amendment] may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination. The Confrontation Clause--like those other constitutional provisions--is binding, and we may not disregard it at our convenience.
I wish he was just as strict in interpreting the Fourth Amendment. I'm not a fan of the Confrontation Clause in the U.S. It makes it too hard to convict and thus contributes to a system plea bargains where innocent people plea guilty and guilty people go free. It would be better if a signed affidavit counted as an officer's appearance. If there were need to question the officer's report, then call in the officer.

In other countries, like the Netherlands, police generally don't go to court (unless something is very wrong). For this (and many other reasons) their court system works much better than ours, both to convict the guilty and protect the innocent.

But we do have the 6th Amendment and now the Confrontation Clause is stronger than ever.

So what might happen? Somehow, of course, the system will adapt.

More than 95% of prosecuted cases never go to trial. So perhaps for them, nothing. But even for plea-bargained cases, the state might have to be ready to go for two or three appearances before the plea bargain is accepted. Now, along with having an officer present, a lab tech will have to be present. This will cost money and further slow down justice.

There might be more smaller labs doing work closer to the court. And there might be the need for a lot more crime lab techs who suddenly discover the wonders of court overtime pay. And you'd hate to think of overtime pay influencing their work. But remember that this whole case came about because of bad lab tech work.

Maybe a lot more people will be charged with offenses related to drug. Maybe a lot more cases will be dropped. Maybe more defendants will demand jury trials and the whole system will grind to inglorious halt. Or maybe, just maybe, the sham that passes for criminal justice will continue without pause, no matter what the Supreme Court says the Constitution means, in theory.

A dysfunctional justice system benefits nobody.

1 comment:

Adrian said...

They should just testify by video-conference.