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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.
we looked at the SWGFAST Update and review process for document comments.
we look at a pending U.S. Supreme Court case that could
affect requirements for forensic analyst live testimony on their laboratory
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
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
state laboratory drug report identifying certain evidence to be cocaine.
(see Appendix D of supplemental Petition material)
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:
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).
changed the legal landscape on "hearsay" dramatically, involving strong
legal technicalities that have very little to do with science or scientific
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
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:
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
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:
On September 26, 2007, Petitioner called for further appellate review from
He argued that live testimony was required by
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
(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
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
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))
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
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."
v. Wade, 388
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
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
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
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
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
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
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
– 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
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:
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.
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
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
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.
Keeping Examiners Prepared for Testimony - #13
Documentation - Levels of Detail
by Michele Triplett, King County
The intent of this is to provide thought provoking discussion.
No claims of accuracy exist.
Documentation - Levels of Details:
What levels of details did you use to make your
I used all the levels of details; I assess
everything prior to arriving at a conclusion.
I couldn’t say because we don’t document that
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
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.
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.
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).
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.
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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