Legal Commentary

Supreme Court Rules Defendant Has Right to Live Testimony of Lab Chemist

By Jeralyn

The Supreme Court today decided Melendez-Diaz v. Massachusetts (opinion here.) It ruled for the defense, which had objected to the state's reliance on an affidavit to prove a substance was cocaine. The defense said it was entitled to the live testimony of the chemist so it could cross-examine him or her. The Court agreed with the defense that live testimony was required under the Sixth Amendment's right to confront witnesses.

At petitioner’s state-court drug trial, the prosecution introduced certificates of state laboratory analysts stating that material seized by police and connected to petitioner was cocaine of a certain quantity. As required by Massachusetts law, the certificates were sworn to before a notary public and were submitted as prima facie evidence of what they asserted.

Petitioner objected, asserting that Crawford v. Washington, 541 U. S. 36, required the analysts to testify in person. The trial court disagreed, the certificates were admitted, and petitioner was convicted. ....

Held: The admission of the certificates violated petitioner’s Sixth Amendment right to confront the witnesses against him.

In my view, too many defense lawyers stipulate to the chemical evidence rather than take on a chemist. Maybe this decision will encourage more of them to challenge the evidence. [More...]

In my second federal criminal trial ages and ages ago, my client was charged with selling a pound of cocaine to an undercover agent. I had my client retain both a chemist from the University of Colorado and a renowned defense attorney, James Shellow from Wisconsin as co-counsel, who specialized in challenging forensic drug evidence. During Jim's cross-examination of the chemist, it turned out she made changes to her findings on the plane ride to Denver. The prosecutor, who years later became a federal judge, offered us a misdemeanor when she admitted that. Our client got probation.

I spoke with Jim Shellow the other day....he's 82 now and about to release a new book on challenging forensic drug evidence. He's also coming to the NORML Key West legal conference in December to tell us all about it.

Moral of the story: Make the Government prove the identity of the controlled substance with live testimony from the chemist. The Supreme Court today affirmed our right to do it. It's another instance of "use it or lose it." When it comes to rights, we should use every one we have.

Full post as published by TalkLeft on June 25, 2009 (boomark / email).