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Defendants Have Right To Confront Analysts of Forensics, Court Rules

By Robert Barnes
Washington Post Staff Writer
Friday, June 26, 2009

Criminal defendants have the right at trial to question lab analysts and others who prepare forensic reports, the Supreme Court ruled yesterday, a decision that could mean dramatic changes for the way criminal trials are conducted across the country.

Justice Antonin Scalia wrote for a narrow majority saying that such records are not objective documents but a form of testimony against the defendant, and those who prepare them must be subject to cross-examination under the Sixth Amendment right to confront witnesses.

Prosecutors "may be right that there are other ways -- and in some cases better ways -- to challenge or verify the results of a forensic test," Scalia wrote. "But the Constitution guarantees one way: confrontation."

Dissenting justices said the decision "disregards a century of jurisprudence" and threatens the orderly pursuit of justice.

"The "ruling has vast potential to disrupt criminal procedures that already give ample protections against the misuse of scientific evidence," Justice Anthony M. Kennedy wrote.

The decision scrambled the court's usual ideological lineup. Scalia was joined by the court's most conservative member, Justice Clarence Thomas, as well as liberals John Paul Stevens, David H. Souter and Ruth Bader Ginsburg. Kennedy, who normally is the decision-maker when the two factions disagree, wrote the dissent for Chief Justice John G. Roberts Jr., and Justices Stephen G. Breyer and Samuel A. Alito Jr.

The case involved a Massachusetts man who was denied the opportunity to question a crime lab analyst whose report identified as cocaine the substance police said he possessed.

Scalia has been the court's most ardent protector of the Confrontation Clause. He was the author of the court's 2004 decision in Crawford v. Washington that said testimony is inadmissible unless the witness appears at trial, or, if the witness is unavailable, had previously been available for cross-examination.

That ruling was embraced by defense lawyers and lamented by prosecutors, who said it made their jobs more difficult.

"The Confrontation Clause may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination," Scalia wrote in yesterday's opinion for the case, Melendez-Diaz v. Massachusetts. The clause "is binding, and we may not disregard it at our convenience."

Kennedy replied that the clause was intended to apply to a different kind of witness, not to lab reports often prepared by machines. He said the court's majority "purchases its meddling" in criminal procedure at a "dear price" and added, "Guilty defendants will go free, on the most technical grounds, as a direct result of today's decision."

Scalia replied: "Perhaps the best indication that the sky will not fall after today's decision is that it has not done so already." Such rules already are in place in many states, Scalia wrote.

The same is true in the District: The D.C. Court of Appeals ruled in 2006 that prosecutors cannot merely introduce a chemist's documents to establish that an analysis has shown contraband to be drugs but must call the chemist unless the defense stipulates that the contraband is in fact drugs.

Still, 35 states, including Virginia and Maryland, and the District had filed an amicus brief telling the court such a requirement would create a huge burden.

News of the ruling rocketed through the criminal defense bar, and by noon yesterday, two defense attorneys in Fairfax County had cited it in drunken driving trials. In one, assistant public defender Carlos Wall persuaded prosecutors to reduce a DWI charge to reckless driving.

In the other, Fairfax Circuit Judge Jane Marum Roush said, "You're going to make me read Justice Scalia before lunch?" Roush said she would rule later, after reading the opinion.

Defense lawyer David Bernhard said the decision was welcome. "It's not up to the defendant to disprove the foundation of scientific evidence. It's up to the government to prove scientific evidence."

Staff writers Bill Miller and Tom Jackman contributed to this report.

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