UPDATES ON CLPEX.com

Updated the Fingerprint Interest Group (FIG) page with FIG #38.

Inserted Keeping Examiners Prepared for Testimony (KEPT) #13: Documentation - Levels of Detail.   Discuss this topic on CLPEX.com - a discussion has been created for KEPT.
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we looked at the SWGFAST Update and review process for document comments.

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Forensic Examiner Live Testimony Implications of the Melendez-Diaz U.S. Supreme Court Case Review 
by Kasey Wertheim
Editorial reviews by Lisa Steele and Andre Moenssens

On March 17, the U.S. Supreme Court granted "Writ of Certiorari" (Latin for “to be informed” but meaning approval for U.S. Supreme Court to hear review) of a case involving an issue that could dictate whether or not the laboratory reports of forensic analysts require the actual courtroom testimony of the analyst during trial. Numerous examples from lower courts have reported “open and deep” division in their rulings that concern a variety of forensic sciences.

The legal issue involves whether the Sixth Amendment to the U.S. Constitution requires the prosecution to present the findings of its forensic examiners through live testimony at trial.  In Ohio v. Roberts, 448 U.S. 56 (1980), "business records" or "public records" were considered exempt from the reach of the Sixth Amendment requiring the makers of these records to appear in court, and allowed the records themselves, though technically hearsay, to stand in the place of their live testimony.  Crime laboratory reports are held, in some jurisdictions, to be either “business records” or “public records” permitting their use as evidence without a testimonial sponsor.

The case at hand seeks to change that rule.  The petitioner, Louis E. Melendez-Diaz, was observed by police to be a passenger in a vehicle whose occupants were engaged in suspicious activity in a public parking lot. The trial resulted in the conviction and sentencing of Melendez-Diaz by a Massachusetts trial court to 3 years on charges of drug distribution and trafficking.

Introduced at trial was a notarized Massachusetts state laboratory drug report identifying certain evidence to be cocaine. (see Appendix D of supplemental Petition material)

http://www.clpex.com/Information/Melendez-Diaz/07-07-31_591_ob_Appendix-A.pdf
(http://www.clpex.com/Information/Melendez-Diaz/07-07-31_591_ob_Appendix-A.pdf) 

During trial, an objection was raised when the laboratory report was offered, and a motion was made "for required findings of not guilty".  The motion was denied by the judge who later instructed the jury that the laboratory reports could be considered along with all of the other evidence in deciding whether or not the Commonwealth had met its burden of proof regarding the composition of the substance.  In the absence of written trial court rulings, this information was gleaned from the briefs and petitions filed in the case:

http://www.clpex.com/Information/Melendez-Diaz/08-02_07-591_Brief-In-Opposition.pdf
(http://www.clpex.com/Information/Melendez-Diaz/08-02_07-591_Brief-In-Opposition.pdf)

The defendant urges in this appeal that the trial judge erred in "the admission in evidence of the drug analysis certificates" because it was inconsistent with Crawford v. Washington, 541 U.S. 36 (2004).

Crawford changed the legal landscape on "hearsay" dramatically, involving strong legal technicalities that have very little to do with science or scientific evidence.  Essentially, Crawford is about what "hearsay" evidence can still be admitted against a defendant. Hearsay evidence, by definition, is not admissible in a court of law because it is an out of court statement by someone who is not in court, and which statement is sought to be used against the opposing party for the truth of what the out-of-court statement contains.  The law, from common law days on, has always recognized that there are some exceptions to the rule prohibiting the admission of hearsay evidence.  Most forensic scientists have heard of "hearsay exceptions".  Prior to the Supreme Court's decision in Crawford, and since the Roberts case cited above, it was recognized that any hearsay that was firmly rooted into one of the traditional hearsay exceptions could be used in criminal cases.  Crawford changed that and held, in 2004, that certain testimonial hearsay statements, even if they fell within a traditional exception to the rule against hearsay, could no longer be admitted in evidence against a defendant because to admit them would violate the confrontation privilege -- the constitutional right of an accused to confront his accusers and cross-examine them on the witness stand. Unfortunately, the Court was not quite clear in Crawford which hearsay statements that benefited from a hearsay exception could still be used after Crawford, and which ones no longer could be used.

The argument supporting continued use of the “business records” or “public records” exception and permit crime laboratory reports to be used with the examiner’s testimony is that Scientific laboratory examinations are performed in a non-adversarial setting without probes for information about the underlying crimes based on the analysts' personal knowledge.  The laboratory report does not accuse a defendant of any crime, and it is available to both parties through the discovery process. These facts question the application of Crawford to the issue at hand.

Ideally, forensic laboratory reports are simply the objective mechanism used by forensic analysts to scientifically document the conclusion resulting from application of the scientific method to an evidence sample.  The analyst doesn't care whether that conclusion serves the purposes of legal prosecution or defense and in fact regularly completes exclusionary reports during their course of duty.  Of course there are various lab scandals where analysts fail to perform tests properly or intentionally mis-report results.  There are times when the defendant may have legitimate concerns about the actual independence of the examiner who is a sworn law enforcement officer, or whose lab is funded by law enforcement. And forensic laboratory reports are a fundamentally different issue than a medical test done for diagnostic and treatment purposes, that also happens to be useful in litigation, instead of more often being done for purposes of litigation.

On July 31, 2007, the Massachusetts Appeals Court affirmed the decision of the lower court in Menendez-Diaz, simply stating that "Based on all the evidence, including the drug analysis certificates..., see Commonwealth v. Verde, 444 [Mass.] 279, 282-283 (2005) [footnote] we conclude that the trial judge did not err in denying the defendant's motion..."  For more, see Appendix A within:
http://www.clpex.com/Information/Melendez-Diaz/07-07-31_591_ob_Appendix-A.pdf
(http://www.clpex.com/Information/Melendez-Diaz/07-07-31_591_ob_Appendix-A.pdf)

Verde specifically decided that introducing only the laboratory drug analysis "certificates" or reports does not violate the defendant’s Sixth Amendment rights related to the Confrontation Clause (requiring the right of the accused to confront his accuser). 

Several relevant assertions are made in Verde.  Drug analysis reports 1) are like business records, 2) are not discretionary, and 3) are not based on opinion, but rather are a product of a "well-recognized scientific test."  For more, see Appendix C within: 
http://www.clpex.com/Information/Melendez-Diaz/07-07-31_591_ob_Appendix-A.pdf
(http://www.clpex.com/Information/Melendez-Diaz/07-07-31_591_ob_Appendix-A.pdf)

On September 26, 2007, Petitioner called for further appellate review from the state Supreme Judicial Court.  He argued that live testimony was required by Davis v. Washington, (547 U.S. 813, 126 S. Ct. 2266 (2006)) since the primary purpose of the forensic analysis was "to produce evidence for use in a criminal prosecution."  However, review was denied without comment by the Massachusetts Supreme Judicial Court.

On October 26, 2007 the petition for a Writ of Certiorari was filed in the Supreme Court of the United States.
http://www.clpex.com/Information/Melendez-Diaz/07-10-26_591_Petition-for-WOC.pdf
(http://www.clpex.com/Information/Melendez-Diaz/07-10-26_591_Petition-for-WOC.pdf),
(hereafter referred to as "Petition") 
Submitters were: Mary T. Rogers, Thomas C. Goldstein, Jeffrey L. Fisher, Pamela S. Karlan, Amy Howe, and Kevin K. Russell.

* Note that Professor Fisher was one of the attorneys who won the Crawford case. This may be important for how the Supreme Court approaches this case.

The petition follows a fairly straight-forward outline:

The issue is introduced through a short identification of the issue, references showing the relative newness of legal conflicts, and notes concerning petitioners' perceived seriousness of the current divide.

Following the introduction is a 5-part statement including the following topics:

1) Details of Massachusetts law including that a statute currently exists directing courts to admit sworn crime laboratory reports in lieu of live trial testimony regarding illegal drugs or other chemicals,

2) A synopsis of the facts in this case,

3) The charges and trial activities related to the laboratory reports in question,

4) The affirmation of the Appeals Court of Massachusetts, and

5) The denial of review by the Supreme Judicial Court of Massachusetts.

Four elements in the conclusion were: 1) There is irreconcilable conflict among Federal and State courts; 2) The question presented significantly impacts the administration of criminal justice, 3) this case is an excellent vehicle for considering the question presented and 4) the Confrontation Clause has been misrepresented by the lower courts decisions in this case.

Within the Petition, several examples are given that are contrary to Petitioners view.  The California Supreme Court and New Hampshire Supreme Court have both found that forensic laboratory reports are nontestimonial (do not require live testimony) because they are reliable, "neither discretionary nor based on opinion", and "constitute contemporaneous recordation of observable events" by the analyst. (People v. Geier, 161 P.3d 104 (Cal. 2007), and State v. O’Maley, 932 A.2d 1 (N.H. 2007))  In addition, North Carolina has found laboratory reports to be "routine, non-adversarial, and made to ensure an accurate measurement." State v. Forte, 629 S.E.2d 137 (N.C. 2006)

Several historical U.S. Supreme Court cases were brought to light in the Petition as historical examples of the protection of Sixth Amendment rights on related issues:

"...although this Court has never squarely decided the issue, it has assumed on several occasions that the prosecution may not introduce a crime laboratory report as a substitute for presenting live testimony from a forensic examiner. As early as 1912, this Court stated that certain pretrial "testimony," including an autopsy report, "could not have been admitted without the consent of the accused . . . because the accused was entitled to meet the witnesses face to face." Diaz v. United States, 223 U.S. 442, 450 (1912).  5 Years later, this Court noted that when the government performs "scientific analyzing of the accused’s fingerprints, blood sample, clothing, hair, and the like[,] . . . the accused has the opportunity for a meaningful confrontation of the Government’s case at trial." United States v. Wade, 388 U.S. 218, 227-28 (1967). Similarly, in refusing to recognize a due process right to have the government preserve breath samples, this Court observed that "the defendant retains the right to cross-examine the law enforcement officer who administered the Intoxilyzer test, and to attempt to raise doubts in the mind of the factfinder whether the test was properly administered." California v. Trombetta, 467 U.S. 479, 490 (1984)."

In February of 2008, a Brief in Opposition to the Petition for Writ of Certiorari was filed with the U.S. Supreme Court by Martha Coakley, Massachusetts Attorney General, and James J. Arguin (Counsel of Record) & David S. Friedman, Assistant Attorneys General (hereafter referred to as Commonwealth):

http://www.clpex.com/Information/Melendez-Diaz/08-02_07-591_Brief-In-Opposition.pdf
(http://www.clpex.com/Information/Melendez-Diaz/08-02_07-591_Brief-In-Opposition.pdf)

In the introduction, Commonwealth provides several arguments:  1) the error was harmless (would not have changed the result in this case), 2) the petitioner waived certain claims by not correctly raising them, 3) the underlying court decision remains unpublished with no precedential value, 4) Petitioner exaggerates the scope and depth of conflict that exists, and 5) only two years have passed since clear distinctions between "testimonial" and "nontestimonial" statements have emerged, and more time would allow the Supreme Court to more effectively identify all the issues to emerge in the lower courts.

In the "Statement" section of their brief, Commonwealth addresses the following topics after introducing the jury conviction, charges, and case facts:

A) The petitioner's trial strategy was to place ownership of the substance on another defendant and therefore did not dispute trial testimony from officers regarding the approximate amount of cocaine as represented in the laboratory report

B) Petitioner did not contest trial testimony from officers regarding the possible type of drug in 4 bags found on a co-defendant as represented in the laboratory report

C) Petitioner did not contest trial testimony from officers regarding the possible type of drug in 19 bags recovered from the car

D) Petitioner did not contest trial testimony from officers regarding consistent circumstances compared with known profiles of drug-related activities

E) The laboratory reports (drug analysis certificates) were admitted over objection and the jury was instructed that they had the choice to disregard the certificates entirely

F) The Petitioner's appeal was disregarded by the appeals court and subsequently denied without comment by the Massachusetts Supreme Judicial Court because it was undeveloped and barely sufficient under Massachusetts practice

G) The petitioner elected not to request the testimony of the analyst nor to hire and call his own analyst; the Petitioner misrepresents the trial judge's jury instruction

Even though A-G above point out the perceived shortcomings of the trial appeals, it is important to remember that under Verde, the issue was resolved in Massachusetts – the trial court and intermediate appellate court were bound to follow Verde, which would have made a fight at the trial level a waste of resources. It was not the defendant’s burden to disprove the case at trial.

Commonwealth goes on to list specific reasons that Certiorari should be denied:

A) resolution of the constitutional issue would not change the outcome of the trial, and prior cases have established that Certiorari should be granted when both circumstances exist

B) claims challenging the reliability of testing methods were waived because procedures were not followed to raise an objection

C) the state courts correctly decided the constitutional issue raised by the petitioner by relying on Verde and rejecting it was contrary to Crawford.  This is supported by pointing out a long-respected principle of common law as noted in Commonwealth v. Slavski, 245 Mass. 405, 417, 140 N.E. 465, 469, (1923): "record[s] of a primary fact made by a public officer in the performance of official duty" are to be admitted as "prima facie evidence as to the existence of that fact."  Forensic analysts are employed to perform tests and certify the results of those tests as their official duty.  This analyst is not acting as a witness or testifying during their ordinary course of business.  Instead they are simply exercising their official capacity by recording the results of recognized scientific testing.

Similarly, laboratory reports relate to the current condition of the object being tested and therefore do not relate to "past events" (United States v. Washington).  In People v. Geier, 41 Cal.4th 555 (2007) the court clarifies that the crucial point in determining that a statement is nontestimonial is whether it "represents the contemporaneous recordation of observable events."  Neither the weight nor composition of a substance made "links to the past".  Again, Commonwealth emphasized that the type of documentary forensic report at issue has very little in common with the type of hearsay evidence that the confrontation clause is intended to exclude.

D) Petitioner exaggerates the conflict among courts about whether laboratory reports are subject to Crawford by painting the conflict broader and deeper than it actually is.  Considering all of the surrounding circumstances, the majority of courts have held that laboratory reports are nontestimonial while only a handful of courts have reached contrary conclusions.

The Commonwealth points out specifically that "a new federal constitutional rule requiring live testimony in all cases involving laboratory testing would have enormous ramifications on countless federal and state criminal prosecutions."  They later continue that this burden is particularly unnecessary "where the author, signator, or custodian of the document ordinarily would be unable to recall from actual memory information relating to the specific contents of the writing and would rely instead upon the record of his or her own action." (People v. Johnson, 121 Cal. App. 4th 1409, 1413, 18 Cal. Rptr. 3d 230, 233 (1st Dist. 2004).  The Commonwealth close with a quote from Chief Justice Rehnquist that frames the issue this way: that requiring live testimony would needlessly involve "numerous additional witnesses without any apparent gain in the truth-seeking process." (Crawford, 541 U.S. at 76)

Also in February 2008, Petitioner issued a reply brief to the Commonwealth's Brief in Opposition.  Arguments are distilled in this report:

http://www.clpex.com/Information/Melendez-Diaz/08-02_07-591_Reply-Brief-For-Petitioner.pdf
(http://www.clpex.com/Information/Melendez-Diaz/08-02_07-591_Reply-Brief-For-Petitioner.pdf)

1) the current six-to-six court conflict and the refusal of any of those courts to reconsider their decisions "post-Davis" demonstrates that "The time clearly has come for this [Supreme] Court to settle the deepening confusion regarding this Court's explication of the Sixth Amendment.

2) none of the Commonwealth's "scattershot" has any force on why this case is a poor vehicle to resolve the question at hand.

3) given the depth and importance of the issue, it does not really matter that the Commonwealth proposes several unconvincing arguments that forensic laboratory reports are nontestimonial - "this court should confirm now that forensic reports are testimonial, not only to ensure that courts protect criminal defendants' constitutional procedural rights, but also to ensure that investigators and prosecutors face the right incentives to develop such evidence in dependable and upright manners."

On March 17, 2008, the U.S. Supreme Court granted Writ of Certiorari in Melendez-Diaz.
http://www.clpex.com/Information/Melendez-Diaz/Docket for 07-591.mht
(http://www.clpex.com/Information/Melendez-Diaz/Docket for 07-591.mht)

From the totality of the above, it is clearly important that all forensic analysts consider the existing legal landscape of this issue in their jurisdictions and monitor the progression of what could become a potentially disruptive Supreme Court case.  As Petitioner notes, conflict between multiple Federal and State courts has forced acknowledgement of a division of authority with the result being that lower courts simply fall back to those legal citations that support their view.  Traditionally, the U.S. Supreme Court has favored such cases.  However, as Commonwealth notes, "the determination of whether a statement is testimonial or nontestimonial... is highly dependent on the context in which the statement was made - and it would be fruitless [for the Supreme Court] to attempt to provide an exhaustive list of factors which may potentially enter into the 'testimonial' calculus and the weight to be accorded to them."  Additionally, the practical considerations of requiring live testimony for all crime laboratory reports and the resulting havoc on the criminal justice system might just as likely drive the High Court's decision not to grant Writ.

The case may not be nearly as significant as some may fear. The worst case scenario is that the Supreme Court will side with the critics and all analysts would be forced to testify if the defense objects to use of the lab report only. The reports would still be admissible if the analyst (or his/her supervisor) testifies; they just wouldn’t be admissible alone without testimony that laid the foundation for admissibility of the reports, as is currently permitted in many states. Even today, there are states wherein statutes provide for the admissibility of the lab reports (or autopsy reports) without sponsoring testimony, unless the defense subpoenas the analyst or maker of the report. Those statutes automatically remedy what critics feel is wrong with the practice elsewhere, and the law won't change in those jurisdictions if the critics win in the Supreme Court.

Once defense attorneys know that they can force the analyst to testify, either under the kind of statute that exists in some states, or under a new ruling of the Supreme Court, many will offer to stipulate to the report just so the maker won't testify against them. In Virginia, where the maker of the report can even now be forced to testify by subpoena from the defense, most lab reports are stipulated in by defense attorneys. It is only when some serious challenge can be made against a technique used that defense attorneys insist on the maker of the report testifying. But defense attorneys can reach that same result already today, simply by filing a motion in limine challenging use of the technique on which the lab report rests.

Some argue that there will be relatively few changes if the defense wins everything it asks for. The end result would be Supreme Court clarification that a lab report is "testimonial," at least insofar as its conclusions is concerned, which conclusion can't be used in evidence under the hearsay exception cloak without testimony by the person who arrived at that conclusion.

At this point we really don't know yet what bases the Supreme Court will even consider. It is very possible that before the case gets scheduled for oral argument, the Court may ask the parties to address only certain, and not all, issues. When many issues are raised, the Court often picks out just one or two issues on which it will decide a case, and it does not always resolve all the possible issues that the parties would like the Court to consider and have which they have argued in their briefs.  There is a slight possibility that the Supreme Court would consider application of their ruling to other forensic disciplines. Most of the legal citations within the Supreme Court briefs are related to chemical or biological substance analysis (controlled substances, toxicology, DNA, etc.), but reference is also made in multiple briefs to disciplines such as latent prints, firearms, trace evidence, and medical examination.  Either way, it wouldn’t hurt for crime laboratories to begin to update their legal references and entertain strategic discussions of the impact in their jurisdiction of any color of Supreme Court decision on this issue in Melendez-Diaz v. Massachusetts.

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KEPT - Keeping Examiners Prepared for Testimony - #13
Documentation - Levels of Detail
by Michele Triplett, King County Sheriff's Office

Disclaimer:  The intent of this is to provide thought provoking discussion.  No claims of accuracy exist. 

Question – Documentation - Levels of Details:

What levels of details did you use to make your identification?

Possible Answers:

a)      I used all the levels of details; I assess everything prior to arriving at a conclusion.

b)      I couldn’t say because we don’t document that information.

c)      Simple conclusions are arrived at by analyzing the quantity, the quality, the rarity, and the spatial placement of the level two details.  I may notice the level 1 and level 3 details but I don’t document it in my notes unless I specifically used it to make my individualization.  Since I didn’t note it, it wasn’t needed to make this individualization.

d)     I documented in my notes that the level 1 detail was consistent, the level 2 detail was consistent and sufficient to establish an individualization, and very clear level 3 detail (pores and ridges edges) was also visible but not needed to make the individualization.

e)      The definitions for the levels of details are slightly vague.  One person may label an short incipient ridge as level 3 detail because it may not always be visible and another person may label it as level 2 detail because it’s a ridge ending.  Regardless of what people call these characteristics, I noted that the ridge flow, the ridge events, and the ridge shapes were within the tolerance that we normally see.

Discussion:

One topic for discussion regarding this question is the use of the term ‘identification’ vs using the term ‘individualization’ (but that’s a topic for another discussion).

Answer a:  Although this may be true, it sounds suspicious when people testify to small details that happened 3 years ago without these details being documented.  Big details are usually memorable but remembering small details, like whether or not you used all the levels of details to make an individualization, is hard for most people to believe.

Answer b:  This may be a correct answer but it would sound better if the courts knew whether noting this information is needed or not.  Without stating that it isn’t needed, many people assume it wasn’t noted but it should have been.

Answers c, d, and e:  These are all good answers but I like c the best because d and e both may include excess documentation that isn’t needed (the necessity of such notes should be based on the complexity of the comparison).  Stating that documentation isn’t always needed could be important for different reasons; primarily so agencies that don’t have the time for excess documentation don’t feel pressured into adding a process that isn’t scientifically recommended, and when testifying in a trial with other experts we don’t want it to appear that there are different standards.

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