Sixth Amendment Requires Cross-Examination of Forensic Lab Witness

The United States Supreme Court announced a decision today in MELENDEZ-DIAZ v. MASSACHUSETTS on the Sixth Amendment Right to cross-examine witnesses. The case involves a drug case brought by the State of Massachusetts in which the State introduced a lab certificate stating that the material seized by the police was in fact cocaine as well as the quality and quantity seized. Melendez-Diaz argued that the introduction of the lab certificate violated the Sixth Amendment and Crawford v. Washington because Melendez-Diaz has a right to cross-examine the lab witness as to process and findings.

The Supreme Court ruled that in fact the lab certificate, even though notarized, was testimonial as it was prepared in anticipation of litigation and that Melendez-Diaz has a right to cross-examine the lab witness. The Court further stated:

Petitioner's power to subpoena the analysts is no substitute for the right of confrontation. Finally, the requirements of the Confrontation Clause may not be relaxed because they make the prosecution's task burdensome. In any event, the practice in many States already accords with today's decision, and the serious disruption predicted by respondent and the dissent has not materialized.

The opinion also quotes from the recent National Academy of Sciences report regarding the not always reliable scientific testing that results from forensic labs:

Nor is it evident that what respondent calls "neutral scientific testing" is as neutral or as reliable as respondent suggests. Forensic evidence is not uniquely immune from the risk of manipulation. According to a recent study conducted under the auspices of the National Academy of Sciences, "[t]he majority of [laboratories producing forensic evidence] are administered by law enforcement agencies, such as police departments, where the laboratory administrator reports to the head of the agency." National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward 6-1 (Prepublication Copy Feb. 2009) (hereinafter National Academy Report). And "[b]ecause forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency." Id., at S-17. A forensic analyst responding to a request from a law enforcement official may feel pressure--or have an incentive--to alter the evidence in a manner favorable to the prosecution.

Remember to look critically at any evidence (business records, certificates, or any written document) that the Government wants to introduce in lieu of live testimony especially if prepared after the incident. Also, challenges to forensic evidence is more viable than ever given the mention in the Supreme Court opinion and based upon the wealth of information available from the National Academy of Sciences report.
Congratulations to Jeffrey Fisher of the Stanford Law Clinic for this important decision reaffirming the importance of cross-examination!

Crack Cocaine Sentencing Reform

From The Sentencing Project:

Americans believe in a system of justice where all individuals are treated fairly under the law. But mandatory minimum sentencing laws prohibit judges from considering all the facts in a criminal case when determining sentences. The result is one-size-fits-all justice that ignores defendants' life circumstances, criminal history and role in the offense.

The 1986 and 1988 Anti-Drug Abuse Acts established excessive mandatory penalties for crack cocaine that were the harshest ever adopted for low-level drug offenses and created drastically different penalty structures for crack cocaine compared to powder cocaine, which are pharmacologically identical substances. The law has diverted precious resources away from prevention and treatment for drug users and devastated communities ripped apart by incarceration.

Today a new consciousness about the unfairness and ineffectiveness of harsh crack cocaine mandatory sentences has emerged among advocates, policymakers, judges and the United States Sentencing Commission. Explore this site to learn more about crack cocaine sentencing reform and how to end the sentencing disparity.

Ex-DEA Agent: Treatment, Education Key in Drug War

From CNN:

As Secretary of State Hillary Clinton continues high-level talks with Mexico's leaders this week, her comments about responsibility in the U.S.-Mexico drug trade have struck a chord with officials familiar with U.S. anti-drug efforts.

Clinton said the United States' "inability to prevent weapons from being illegally smuggled across the border" was a major contributor in Mexican violence along the border. She went on to say that the United States has "a co-responsibility."

In an interview Wednesday on "American Morning" with CNN anchor John Roberts, former Drug Enforcement Agency special agent Robert Strang talked about the three-pronged approach needed to curb drug use in America and the need to bust distribution rings. Strang is also CEO of Investigative Management Group.

The following transcript has been edited for brevity and clarity:

John Roberts, CNN anchor: Everybody's blaming Mexico for [the U.S. drug trade], but the secretary of state yesterday said, 'Hey, the United States shares a lot of the blame because of the pent-up demand here, the insatiable demand for drugs.' Do you agree with her? Watch Clinton say, "We have to do a better job"

Robert Strang, former DEA special agent: Let's face it, the average first drug use is 12 years old in our country. That means kids that are in the sixth grade are trying drugs for the first time. Marijuana, cocaine, heroin, methamphetamine, all these drugs are coming across the border because we demand them. We have the cash to pay for them, and we really are pretty much the No. 1 consumer in the world for these drugs.

Roberts: Is the United States doing enough to try to curb demand? The Office of National Drug Control Policy, I don't remember much coming out of it during the Bush administration, and I haven't seen anything come out of it in the Obama administration.

Strang: We're trying all the time. I'm on the board for D.A.R.E. America, and that is teaching kids about the dangers of drugs and violence in schools. And constantly, we're trying to get money federally for this program and police officers go into the school. They teach the kids. It's a wonderful program in those trouble years, the fourth, fifth and sixth grade especially, and we need to have a little bit more money in this area.

There's three things, John: It's treatment, it's enforcement and it's education. And it's like a three-legged stool. If all three things don't work, it's going to fall down. So, we can send all of the agents in the world down to the border. We can seize all the coke, heroin, methamphetamine that we want. If we don't have treatment on demand, and if we're not educating our kids in our country about the dangers of drugs, the problem's going to grow.

Roberts: When you see the Department of Homeland Security prepared to spend these hundreds of millions of dollars on border security, what do you think?

Strang: I'm happy that they're doing something. This is a small piece of the enforcement operation. The best thing to do is like the case that we saw three weeks ago, when the DEA announced 750 arrests involving 250 cities between Mexico and the United States, mostly in the U.S., this huge distribution network.

Because when you dismantle those networks that constantly are putting drugs from the cartels to the street, when you can put those guys in jail, when you take their assets, then you have an impact.

Full article here.