Supreme Court Ruling Requiring Lab Analyst Testimony Worries Prosecutors

Justice Antonin Scalia wrote the Supreme Court ruling that requires laboratory analysts to be in court to testify about their tests.
Justice Antonin Scalia wrote the Supreme Court ruling that requires laboratory analysts to be in court to testify about their tests. (By Chris Greenberg -- Associated Press)
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By Tom Jackman
Washington Post Staff Writer
Wednesday, July 15, 2009

The predictions are dire. In New York, murderers could walk free. In Fairfax County, drunken driving cases could be dismissed. And nationwide, thousands of drug cases might have to be thrown out of court annually.

Legal experts and prosecutors are concerned about the results of last month's U.S. Supreme Court ruling that requires lab analysts to be in court to testify about their tests. Lab sheets that identify a substance as a narcotic or breath-test printouts describing a suspect's blood-alcohol level are no longer sufficient evidence, the court ruled. A person must be in court to talk about the test results.

The opinion, written by Justice Antonin Scalia, has prosecutors and judges shaking their heads in disgust and defense lawyers nodding with satisfaction at the notion that the Constitution's Sixth Amendment guarantee that defendants "shall enjoy the right . . . to be confronted with the witnesses against him" is not satisfied by a sheet of paper.

"This is the biggest case for the defense since Miranda," said Fairfax defense lawyer Paul L. McGlone, referring to the Supreme Court ruling that required police to inform defendants of their Fifth Amendment right against self-incrimination. He said judges "are no longer going to assume certain facts are true without requiring the prosecution to actually put on their evidence."

Four drunken driving cases in Fairfax and at least one in Prince William County have been thrown out by judges after defense attorneys used the new ruling to challenge the prosecution's evidence.

States and counties across the country handle evidence differently, so the problems caused by the ruling vary widely. But many jurisdictions have a similar issue: Crime labs that test drug and DNA samples face huge backlogs even when scientists and analysts do not have to testify. If the workers are taken out of the labs to appear in court, those backlogs will grow.

In drug cases, more than 1.5 million samples are analyzed by state and local labs each year, resulting in more than 350,000 felony convictions, national statistics show. "Even if only 5 percent of drug cases culminate in trials, the burden on the states is oppressive," a group of state attorneys general wrote in a brief for the case.

The percentage of cases going to trial could well go up if defense lawyers think that bringing lab analysts to court will help their cases. Lawyers also could go to trial with the hope of a dismissal if the analyst cannot be there.

Scott Burns, executive director of the National District Attorneys Association, was a prosecutor in Utah for 16 years. "Sometimes it's the game within the game," he said. With less incentive to plea bargain, defense attorneys might try more cases, and "that's going to put more stress on the system," Burns said.

In Prince George's County, lab analysts testify regularly, but the volume of cases is so great that "we still are not able to process all the drug cases," State's Attorney Glenn F. Ivey said. "There's a triage going on in court cases. Some marijuana cases don't get tested, and we end up throwing them out."

Then there are the big rural states, where crime labs are hours away from many county courthouses. "It'll have a huge impact," said Ladd Erickson, state's attorney in McLean County, N.D. "It's not volume as much as it is distance. For some counties, round trip is going to be 10 to 12 hours to testify" for the lab analyst to travel to court.

Burns said 42 states and the District are affected by the Supreme Court case, Melendez-Diaz v. Massachusetts.

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