Friday, June 26, 2009

Melendez-Dias v. Massachusetts - More Commentary

The Melendez-Dias v. Massachusetts case was decided. The heart of the issue before the Supreme Court was that whether or not the defendant had the right to cross-examine the analyst who had prepared a report identifying some drugs. The Sixth amendment states that defendant have the right to cross-examine their accusers. The issue was whether or not the report, and thereby the analyst was an accuser. The Court, by a 5-4 margin decided that indeed the analyst can be cross-examined in court. (It was an unusual split, with Scalia writing the decision and joined by Thomas, Stevens, Souter(!) and Ginsberg (!!))

My (non-legal) opinion of the matter is that being a chemist, I am too well aware that scientific measurements are not the objective and neutral procedure that nonscientific people think them to be. The neutrality is somewhat harder to argue against, but arguing against objectiveness is much easier. There are simply too many things that can go wrong with modern instrumentation to not question there results. I do that everyday here at Aspen Research. Not that we do poor work, but the question always arises “What are we really measuring?” Answering this makes our work that much better for the clients we serve. And as I’ve pointed our before, there is a huge gap between data and conclusion, one that requires human intervention. Given all of this, I do think there is sufficient doubt on any analytical test report that it should not just be taken as a matter of fact.

Many documents used as evidence in court are clearly not accusatory and that should not change. The most common example is bookkeeping records used in accounting cases. The difference here is that the bookkeeping records do not reach a conclusion – both sides are able to argue the evidence to support whatever conclusion they desire. In contrast, a lab report has already reached a conclusion,

I love reading Scalia's opinions as he has no problem with directly addressing what specifically is written in the dissenting opinion. (He was particularly vitriolic when he wrote the opinion on the recent 2nd amendment case.) This one wasn’t quite as pointed, but there are a few gems such as this:

“Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.” (page 12)

This comment from page 14 particularly struck me hard:

“This case is illustrative. The affidavits submitted by the analysts contained only the bare-bones statement that “[t]he substance was found to contain: Cocaine.”... At the time of trial, petitioner did not know what tests the analysts performed, whether those tests were routine, and whether interpreting their results required the exercise of judgment or the use of skills that the analysts may not have possessed. While we still do not know the precise tests used by the analysts, we are told that the laboratories use “methodology recommended by the Scientific Working Group for the Analysis of Seized Drugs…At least some of that methodology requires the exercise of judgment and presents a risk of error that might be explored on cross-examination.”

A one line report with no basis for reaching the conclusion? Unbelievable.

My argument above is based on issues in the real world, but at least restrained by pursuing the “truth”. However, real world practicalities that do show up on page 20 are maddening:

”Perhaps the best indication that the sky will not fall after today’s decision is that it has not done so already. Many States have already adopted the constitutional rule we announce today, while many others permit the defendant to assert (or forfeit by silence) his Confrontation Clause right after receiving notice of the prosecution’s intent to use a forensic analyst’s report… Despite these widespread practices, there is no evidence that the criminal justice system has ground to a halt in the States that, one way or another, empower a defendant to insist upon the analyst’s appearance at trial.”

The dissenting opinion is loaded with even more “real world” practicalities. Since when do these matter in a legal decision on the Bill-of-Rights? All of the Bill-of-Rights makes life more difficult for the government. That should never be an issue.

I’m happy for this decision, as I think it is a right one, but that it wasn’t made for all the right reasons. There is that old saying that “Law are like sausages; people should not see them being made”, which I always thought applied to the legislative process. Now I see that it can apply to the judicial process as well.

1 comment:

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