Yesterday, the U.S. Supreme Court issued their decision in the case of Melendez-Diaz v. Massachusetts, 07-591. The effect of the decision is that criminal defendants will now be able to compel the in-person testimony of criminalists who perform laboratory analyses of drugs, DNA, toxicology data, and so on. Previously, this evidence was submitted via a sworn written statement from the criminalist. This decision is very bad law, and a kick in the cojones for the criminal justice system.
The defendant's right to examine and confront (cross-examine) the evidence against him is guaranteed in the Sixth Amendment, and is fundamental to a fair trial. Without this, a defendant could be convicted on sham evidence, or on no evidence at all, depending on how diligent the judge was in reviewing the evidence. An unfortunate truth is that cops and other witnesses sometimes lie, and the right to cross-examination is a check of their veracity.
If the defense bar used their new power to compel the attendance of criminalists at trial only to challenge evidence they truly found to be suspect, this would be good law. Those of us who have been called to court regularly as state witnesses know that this is often not the motivating factor. Many defense attorneys employ the "whites of the eyes" defense when they demand a trial and the attendance of all the state's witnesses. Knowing that the state has a winnable case and being without a valid defense, the accused's attorney demands a trial anyway, and waits to see if all the witnesses show up. If they do, he goes to the prosecutor and cuts a deal for his client. If not, he asks the court to dismiss the case outright, or uses the lack of a witness as a strong bargaining chip to get a deal.
Crime labs are already overwhelmed by too much evidence to analyze and not enough resources to do it. A story from a few days ago described the backlog of DNA evidence the Los Angeles County Sheriff's Department had on hand, and how the statute of limitations would run on many cases before it could be processed. Even if these labs get more funding, their throughput will be gravely reduced if their criminalists spend most of their working hours sitting in the halls outside courtrooms, waiting to take the oath and answer perfunctory questions about how they performed the analysis of the evidence at hand.
Civil cases are often dismissed as "frivolous," when plaintiffs file with illegitimate grounds, or when no real harm has been suffered, or just to harass the respondent and cost him time and money (most inmate lawsuits fall into this category). We need a similar review process in criminal cases, where the defense is sanctioned for frivolous demands for the attendance of witnesses. Before the defense can compel the attendance of witnesses, require them to make a proffer of what is questionable about the witness' statement or actions, and what questions they will ask that can't be answered by the reports already filed with the court.
The trial process is supposed to be about getting to the truth of what happened and who is responsible. This goal has been supplanted by technical challenges as to what evidence may be admitted and heard, regardless of its probative value. Unless there are real articulable doubts about the veracity of a witness or a piece of documentary evidence, their sworn statement should be admitted as evidence without requiring teir attendance at trial. Contrary to the outcry of Jack Nicholson's Col. Nathan Jessep in A Few Good Men, we can handle the truth. We need to eliminate the barriers created to hide and distort it.
