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Court Weighs How Juries Should Hear Lab Evidence

Publication Date: 
November 11, 2008
The New York Times
Adam Liptak

Professor Jeffrey L. Fisher is quoted in The New York Times in an article about the Supreme Court case Melendez-Diaz v. Massachusetts:

The Supreme Court heard arguments on Monday in a case that could have broad implications for how prosecutors present evidence from crime laboratories at trial.

Many states allow reports from crime laboratories to be submitted to juries through written certifications rather than live testimony. That practice is convenient, but it may run afoul of the Sixth Amendment’s “confrontation clause,” which guarantees criminal defendants the right to confront the witnesses against them.

Several justices seemed to struggle to find the dividing line between the kinds of information that must be presented through live testimony and those that are routine, reliable or tangential enough to require only a written certification. The justices also indicated that they were aware of recent scandals at major crime laboratories involving the flawed analysis of blood, hair, ballistics and other evidence.

Justice Stephen G. Breyer cited a supporting brief filed by the National Innocence Network in the case, Melendez-Diaz v. Massachusetts, No. 07-591. The brief, Justice Breyer said, “is filled with horror stories of how police labs or other labs have really been way off base and moreover really wrong.”

Jeffrey L. Fisher, representing Mr. Melendez-Diaz, disputed that distinction on practical grounds, saying that defendants might want to know quite a bit about the chemical analysis of substances determined to be illegal drugs. “What test was performed?” Mr. Fisher asked, giving examples. “What’s the error rate on that test? How do your protocols work? What are your experience and credentials in analyzing those?”

Mr. Fisher also objected to the distinction as a matter of principle. If the confrontation clause applied, he said, the reliability of the evidence would not matter and the defendant could put the government to the burden of proving its case through live testimony.