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State Supreme Court continues To Limit Defendants' Right To Confront Lab Technicians, Coroners

Publication Date: 
May 29, 2013
Daily Journal
Emily Green

Professor Jeffrey Fisher, co-director of Stanford's Supreme Court Litigation Clinic, spoke with the Daily Journal's Emily Green about recent California Supreme Court decisions regarding the defendant's right to hear testimony directly from the coroner or lab technician and why this Sixth Amendment evaluation is wrong and too restrictive relative to the U.S. Supreme Court standards.

Defendants hoping to question lab technicians and coroners about evidence used against them at trial are getting a cold reception from the state Supreme Court, which legal observers say is amassing as conservative a record on the key area of criminal law as any court in the country.

Last week, the court cleared from its docket 17 cases centering on defendants' Sixth Amendment right to confront their accusers. The dismissals build on the court's prior decisions limiting defendants' right to question the lab technicians and coroners whose reports helped convict them.

"There is only one state Supreme Court in the country that arguably takes as restrictive an approach to the confrontation clause as the California Supreme Court, and that's the Mississippi Supreme Court," said Stanford Law School Professor Jeffrey Fisher, who argued several seminal cases on the confrontation clause before the U.S. Supreme Court.


The right to confrontation is one of the most controversial and developing areas of criminal law. In 2009, in a case Fisher argued, the U.S. Supreme Court held crime lab reports can't be used against defendants without the testimony of the analyst who prepared the report. Melendez-Diaz v. Massachusetts, 557 U.S. 305. The court then seemed to retreat from that decision in a 2011 ruling that upheld a rape conviction even through the defendant didn't have an opportunity to question the reliability of the DNA evidence that helped convict him.


Fisher called that analysis wrong. He said the U.S. Supreme Court most likely denied review in Geier because the state Supreme Court held that even if there had been error, it would not have been influenced the outcome of the case. The U.S. Supreme Court "will always deny cert if the lower court says any error would have been harmless," Fisher said. "The reasoning in Geier is flatly repudiated in Melendez-Diaz."