Why Melendez-Diaz is good policy
In Melendez-Diaz, the Supreme Court held that the information in laboratory technician reports can only be introduced against a criminal defendant if the person has had the opportunity to cross-examine the lab tech who did the testing.
This has created an outcry among prosecutors and others. (See previous coverage on the topic on this blog here and here). Admittedly, the decision is a change in the way business has been done in our criminal courts. Such a change is bound to be met with resistance, because it will create more work for the government to convict people.
Be sure to point if you cross a lab tech
I received an email from a friend of mine about the effect of Melendez-Diaz on the war on drugs. Drug prosecutions work only because they are able to be done in volume. If the defendants refuse to plead, and prosecutors have to call lab techs, they can quickly overrun the system such that drug prosecutions will quickly become rare.
One writer argues that Melendez-Diaz is a bad idea because,
The proliferation of drug arrests would cripple our state toxicology laboratory if a witness were required in every drug trial. In nearly all instances, the testing is reliable so requiring the toxicologist to appear is no more than a formality. It’s rare where a legitimate challenge can be raised to the reliability of a particular drug screening.
I think this is wrong; Melendez-Diaz is good policy for two reasons. I’ll explain what they are, after the jump.
First, the rumors of the death of the drug prosecution are greatly exaggerated. For better or worse. criminal defendants, and criminal defense lawyers, do not behave like union members being forced to work under an unfair contract. Criminal defendants do not, and generally will not, coordinate a systematic strategy of refusing to plead so that they can overwhelm the state.
Sure, there will be some lawyers who insist on taking cases to trial where prosecutors are unwilling to offer a reasonable plea (though I can see a pretty easy fix for that). Defense lawyers will be watching closely how the government in each jurisdiction handles getting their witnesses to court.
I practice in federal court. Federal judges are notorious for bending the court’s schedule to accommodate government witnesses. And if the prevailing judicial winds are that they think Melendez-Diaz is a technicality to be worked around, they’ll be more willing to be accommodating. Of course, they won’t be endlessly flexible, and it will vary significantly by judge.
In most jurisdictions, I don’t think there will be a great rush of defendant’s to trial, but, rather, a great pressure on prosecutors to cut much better deals to make taking a plea worth not betting that the state can’t call it’s witnesses.
So, to summarize point one – the sky is not falling.
Second, cross examining lab technicians matters. It is not a “mere technicality.” These people make mistakes. When they make mistakes, people go to prison for the wrong thing. Their lives are destroyed; their children grow up without a parent. Having a check on what the lab techs do will mean that they screw up less, and that fewer innocent people go to prison. Both are really good things to have in a criminal justice system.
That said, maybe I’m wrong. So, what I encourage any reader to do is to email me any instance of a lab tech being crossed well. Any error being pointed out, any failure to maintain a chain of custody, or do the testing properly.
Melendez-Diaz is going to mean a lot more lab techs get crossed a lot more aggressively. If something’s working, please share it.
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One Response to “Why Melendez-Diaz is good policy”
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To start, I’m a cop, so that is going to skew how I view things. I had a recent possession of marijuana case. I got a report of a subject pulling into a parking lot, striking a vehicle, then parking in a parking space several spots away. I arrived and located the two vehicles. The incident occurred in an apartment complex. I had no apartment number, only a building to go on. I knocked on the first door I came to. When the door was answered I smelled a strong odor of smoked marijuana coming from the room. I asked the subject that answered the door for his marijuana and if the driver of the hit and run subject were in the apartment. He handed me a bag of marijuana, about 13 grams, and I also located the driver. He identified the substance as marijuana and claimed it as his.
In Virginia, where I work, there are field tests for a variety of drugs. In cases of marijuana, field tests are sufficient to establish if the substance is marijuana. There is also a requirement to provide the suspect with a form to request further analysis of the material and it is their responsibility to request the examination.
I field tested the marijuana and it had a positive test for THC. I gave him the form, which he did not use. In court the judge began the case by asking where the analyst for the test was. Since I used the test kit, I acted as analyst. The judge then advised that he wanted someone from the state lab their to testify to the analysis. Our prosecutor reminded the judge of the code that allowed for field tests to be admitted into evidence. The judge then stated that he did not know what all this, “Menindez-Melendez” stuff meant and that someone should explain it to him. Our prosecutor provided him with a copy of the case and he informed her that he was not going to read it, then dismissed the case.
I guess my point here is that there is very little direction in the ruling. I suppose the judge had a valid point in wanting someone from the state lab in court so they could say that a field test kit works. I did think it strange that all this arguing was done before the case was called though and the arguments came from the judge, not the defense attorney. But what do I know I’m just a cop.