Another SCOTUS Ruling

This is interesting:

Crime laboratory reports may not be used against criminal defendants at trial unless the analysts responsible for creating them give testimony and subject themselves to cross-examination, the Supreme Court ruled Thursday in a 5-to-4 decision.

The ruling was an extension of a 2004 decision that breathed new life into the Sixth Amendment’s confrontation clause, which gives a criminal defendant the right “to be confronted with the witnesses against him.”

Four dissenting justices said that scientific evidence should be treated differently than, say, statements from witnesses to a crime. They warned that the decision would subject the nation’s criminal justice system to “a crushing burden” and that it means “guilty defendants will go free, on the most technical grounds.”


Noting that 500 employees of the Federal Bureau of Investigation laboratory in Quantico, Va., conduct more than a million scientific tests each year, Justice Kennedy wrote, “The court’s decision means that before any of those million tests reaches a jury, at least one of the laboratory’s analysts must board a plane, find his or her way to an unfamiliar courthouse and sit there waiting to read aloud notes made months ago.”

Justice Antonin Scalia, writing for the majority, scoffed at those “back-of-the-envelope calculations.”

In any event, he added, the court is not entitled to ignore even an unwise constitutional command for reasons of convenience.

“The confrontation clause may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination,” Justice Scalia wrote.

“The sky will not fall after today’s decision,” he added.

But that is not how prosecutors saw it. “It’s a train wreck,” Scott Burns, the executive director of the National District Attorneys Association, said of the decision.

“To now require that criminalists in offices and labs that are already burdened and in states where budgets are already being cut back,” Mr. Burns said, “to travel to courtrooms and wait to say that cocaine is cocaine — we’re still kind of reeling from this decision.”

DA’s will just have to prioritize. Also, dissenting were Roberts and Alito. It will be interesting to see how many years it takes before Roberts fails to side with the government. A thoroughly modern Bush-era “conservative,” with total deference to the government in almost every regard. I wouldn’t be surprised to learn he has a tattoo that says “If you haven’t done anything wrong…”

54 replies
  1. 1
    Lavocat says:

    Holy shit! SCALIA was in the majority on this!?

    Are you sure this isn’t parody from The Onion?

    Otherwise, I’m blow away by this. Simply blown away.

    In a GOOD way!

  2. 2

    I am, despite being as reflexively pro-defendent rights as it is possible to be, a bit torn by this. Scientific evidence is already treated differently in court, and should be. Expert witnesses are cross examined, certainly and should be. But at the same time there is a fair amount that can be — and usually is — stipulated about the technical facts being entered into evidence. And there is no doubt that just as a logistical matter, this is a huge pain.

    But at the same time, anyone with the memory to remember this knows how important it is to subject even seemingly rock solid statements emanating from supposedly respectable labs.

    All of which leads to my real source of distress: I’m in agreement with Scalia? How the hell did that happen?

  3. 3
    Throwin Stones says:

    Heard this on the way home yesterday.
    It is interesting w/r/t the composition of the majority vs. who dissented. Not the usual groups.
    Oh, and WTF was Thomas thinking on the illegal search decision? Doesn’t he usually just go with whatever Fat Tony says?

  4. 4

    I think the Scalia involvement falls into the “even a broken watch is correct twice day” category. I am always in favor of placing a more substantial burden on the State when the wish to depriving someone of their liberty. The system is already so heavily weighted in their favor that this one meaningful change is a mere pittance on the scales of justice. Other than civil libertarians I’ve never heard a peep from anyone about the massive workload placed on public defenders. Sauce for goose, as it were …

  5. 5
    DecidedFenceSitter says:

    Call me another “Yay!” Criminal Forensics doesn’t have a centralized set of requirements for education, training, or continuing education. That means that technical skills can vary widely, so this doesn’t become scientific, and that cases CAN turn on the skill.

    If there was a guaranteed baseline of competence, or at least certifications, then I’d be more trusting.

  6. 6
    Punchy says:

    Justice Antonin Scalia, writing for the majority,

    Cole owes me a new coffee mug, as the old one is now in pieces below my desk. Also, a ice pack for my jaw, as it hit said desk at about 50 mph.

    Wow. Scalia with the libs, eh? Can’t wait to see Rush call out Scalia as a DFH, liberal tree-hugging gay-friendly lesbian. Or something likewise incoherent and nonsensical.

  7. 7
    The Other Steve says:

    Man, this is going to have a huge impact. There’s a case here in Minnesota where a defendent is demanding to be able to have the plans and software of a breathalyzer reviewed by an expert. You’ll see similar cases on radar guns and so on. I suspect this ruling will have some impact.

    I see their point, and I don’t disagree.

    But this will increase costs substantially.

  8. 8
    Face says:

    Didn’t Scalia just side with the opinion that defendants weren’t entitled to prove/disprove their guilt thru DNA testing?

    So WTF? He’s FOR the right of a defense lawyer to question a lab tech, but against the right of the defendant to actually use the evidence as a precluder of guilt? Isn’t this like being for RU486 usage but against abortion?

  9. 9
    J.D. Rhoades says:

    Holy shit. This is huge change for criminal practice, at least where I am.

  10. 10
    binzinerator says:

    Scalia for the majority here? Something wrong. Or did he just fuck up and misread the whole thing? Or maybe he thought it would clog the courts so badly that out of desperation police and vigilantes and frightening townspeople would be forced to implement summary executions of the accused just to keep anarchy from running riot?

    Yeah, that’s it.

  11. 11
    James Hare says:

    Considering the high costs of defending yourself in court, the bar should be set high for the state as well. Unfortunately there are still lame-ass local judges who don’t know the law out there. I remember a misdemeanor trial in Farmville, VA where I was charged with a drunk in public charge. My objection was that the officer had simply thrown me in her car and said “you’re drunk.” She made no effort to conduct a field sobriety test or breathalyze me. When I attempted to question her about this in open court, the judge told me to shut up.

    That judge will sit in that court treating college students like crap until he dies. Because the majority of the cases aren’t a big deal, he probably won’t even get reprimanded by higher courts. Actually appealing that conviction would have cost quite a bit more than the fine. So my civil rights were violated by a judge and a police officer who both think they can do it again with impunity.

    The worst part about that whole situation was that when the students complained to the town that arrests of this type were encouraging students to drive drunk, the police could not be convinced to stop arresting students walking quietly back to campus after a party. It gets back to something Yglesias and Atrios mention a great deal: the policies that really tick most people off aren’t made at the federal level — they’re made and executed locally.

  12. 12
    Mr Furious says:

    How the fuck do they reconcile this decision with the awful one they made last week on the convicted Alaska inmate who wanted a DNA test done that would exonerate him—at his own expense—and SCOTUS shot that down. Part of their reasoning was the burden to the state…which didn’t really even apply.

  13. 13
    Davis X. Machina says:

    The FBI lab, at least, may have brought this upon themselves.

    Given their history, who’d stipulate away their chance to cross-examine?

  14. 14
    EconWatcher says:

    Scalia has generally been strong on the defendant’s constitutional right to confront and cross-examine the witnesses against him (a/k/a “the Confrontation Clause”). Many years ago, he surprised people by voting to strike down an Iowa procedure that allowed alleged victims of child molesting to testify by closed circuit TV rather than in the courtroom. Scalia said, in essence, “confront means confront”–you’ve got to have the kid in the courtroom. He pointed out that there have been many cases in which divorcing parents have manipulated young kids into claiming molestation against the other parent, and the jury needs to see how the kid actually reacts in front of the accused parent, especially if they’ve been kept away for a while from the accused parent because of the accusation.

    Scalia is generally awful on the rights of the accused. But for some reason, on this particular right, he’s pretty good.

  15. 15
    kid bitzer says:

    count me also gob-smacked re scalia.

    it has been noted that roberts’ jurisprudence can be summed up as a series of binary preferences: he always sides with the executive against other branches, with the govt. against private individuals, with corporations against individuals, with prosecutors against defendants, etc., with some minor complexity when these binaries cross-match.

    in general, has not the same been true of scalia? when before now has he ever sided with defendants against prosecutors?

  16. 16
    Mr Furious says:

    This really stands to be a substantial hurdle and not just one of cost. Many labs have tremendous backlogs, and having techs tied up in court will only make that worse.

    For local / municipal labs, court appearances are inconvenient, but not undue. For the FBI, can’t they work out some sort of SKYPE scenario? Live cross-examination without the travel?

    All of that said, the volume of bogus crime lab shit that’s been coming out of late makes something like this necessary.

    Just spitballing…

  17. 17
    Mr Furious says:

    @EconWatcher: I guess that answers my SKYPE suggestion…

  18. 18
    Dork says:

    Speaking of courts, just what the hell is going on in Minnesota? The MNSC really needed a month to evaluate Coleman’s bogus claims?

    Anyone with an update?

  19. 19
    Grumpy Code Monkey says:

    I heard this on NPR this morning and immediately thought of Ralph Erdmann and Fred Zain, who routinely falsified or tampered with evidence to help Texas DAs secure convictions.

    I don’t have a problem with this ruling at all, and if it slows the wheels of justice somewhat, so much the better.

  20. 20
    Napoleon says:

    I mean this in all seriousness, I do not see how anyone could decent from this decision. A plain English reading of the Constitution gives you no way to come to any other conclusion.

    That tells you everything you need to know about the dissenters.

  21. 21
    les says:

    Totally OT, but I wanted to congratulate John C. and West Va. for having a Senator stand up for actual health care reform. Yowza.

  22. 22
    Dork says:

    @Mr Furious: I dont see the point here, really. The defense lawyer is going to question the tech’s education, dig and dig and dig into research notebooks until he/she finds one instance where the tech forgot to initial and date a crossout, then declare all the forensic evidence tested there and elsewhere to be bogus and fabricated.

    Shorter — it will be character assassination, not a discovery of lab techniques and procedures.

  23. 23
    EconWatcher says:

    Kid bitzer, I’m no fan of Scalia, but there have been other very notable instances in which he’s sided with the accused, probably most notably in opposing the awful and unjust federal sentencing guidelines.

    For a while, I used to defend Scalia in conversations with others: “He may be a wingnut troglodyte, but he has some intellectual honesty.” There was evidence for it earlier in his career. Unfortunately, Bush v. Gore pretty much wiped out the claim of intellectual honesty. And his occasional efforts for the accused have become less and less frequent. But he is a more interesting (and somewhat unpredictable) intellect than, say, Rehnquist or now Alito.

  24. 24
    kid bitzer says:

    well, if tony had to sell his honesty, at least we all got eight years of bush as the price. so that was worth it.

    otherwise–i’m ready to believe you that he has shown streaks of intellectual independence now and then. certainly more than alito, roberts, or rehnquist.

  25. 25
    EconWatcher says:

    Dork, if you were accused of a crime, and scientific evidence was being offered against you, wouldn’t you want your lawyer to have a chance to cross-examine the creator of this scientific evidence? Have you read about the screw-ups–and worse–in the FBI labs? How about the forensic pathologists in West Virginia and Oklahoma who were shown to be essentially making s#@& up in hundreds or thousands of cases?
    Juries tend to think of scientific evidence as objective and conclusive. But that’s EXACTLY why you need the right to confront and cross-examine–because it’s not always so.

  26. 26
    Comrade Dread says:

    I’m surprised by Scalia joining the majority on this. Maybe he finally picked up a few newspapers and realized that having faith in the professionalism of law enforcement officers isn’t a reliable way to ensure that they obey the law.

    All of that said, the volume of bogus crime lab shit that’s been coming out of late makes something like this necessary.

    Yeah, Reason (for all the crap they deservedly get sometimes) has done a good job documenting some of these shenanigans where by so called ‘experts’ have been falsifying evidence and prosecutors have gone autopsy shopping to get results they want.

    Kudos to the court for finally making a good call.

  27. 27
    Llelldorin says:

    Scalia and Thomas actually mean it when they talk about original intent. It’s not that I agree with their judicial philosophy, but they at least have a definite idea of what they mean by the phrase. It sometimes leads them to take “liberal” positions like this one, because the right to confront the accused meant in 1790 exactly what it means today.

    Alito and Roberts, by contrast focus on avoiding “judicial activism”, which in practice means “the executive branch can DWTFTW” is the beginning and end of their version of constitutional law. (After all, ordering the executive branch to actually do something would be active. I suspect they’ll have no problem ordering the Obama administration to STOP doing things, if any major liberal initiatives pass Congress.)

    Breyer, in a flashback, played his old “swing” role from when the court was much more liberal than it is today. (In the old days, he was the swing vote, because he tends to defer to prosecutors in criminal cases, while being liberal on other issues.)

  28. 28
    Walker says:

    I currently have a family member accused of a serious crime (won’t go into details). From this experience I have learned how the game is stacked against the defense. The prosecutors will hide their evidence from the defense as long as possible. They will also try to ignore any evidence that refutes their version of events. And the defense attorney is fumbling in the dark, unaware if any such evidence even exists.

    So for example, if there are two bloodtypes found in a stain, they can release a report that only mentions one.

    As far as I am concerned, prosecutors can suck it. Good for Scalia.

  29. 29
    Dork says:

    @EconWatcher: I understand all that. But I can guarentee you the lawyer will not be asking whether the DNA prep was “proper” with a spindown at 5000rpm instead of the norm of, lets say, 6000rpm. Instead, it will be questions about how often they drink/smoke, why they were written up for being late 4 years ago, etc. There will be few attempts at hammering away at potential laboratory miscues, and myriad attempts at sliming the character of the person running the tests. IMO, of course.

  30. 30
    Cris says:

    To now require that criminalists in offices and labs that are already burdened and in states where budgets are already being cut back…

    Sounds to me like the SCOTUS has just made a case for federal stimulus money going to crime labs.

  31. 31
    Fwiffo says:

    Again, the “conservative” wing of the court is writing fuzzy-headed opinions, and the “activist liberal” wing (plus Scalia?) is basing their opinion on the plain language of the law. Scalia’s argument is remarkably simple. There is a constitution right to confront your accusers. Period. The law doesn’t have any exemptions for “inconvenience”. The constitution doesn’t say you have a right to a trial by jury, unless it would be too expensive. It doesn’t say you have the right not to self-incriminate, unless it would be a bummer for the prosecution.

  32. 32
    Cris says:

    Let me expand that a little, because I’m actually kind of serious. I would imagine that the requirement of this ruling would be satisfied by an official representative of the lab, not necessarily the exact same lab tech who ran the test. So I can envision labs having on staff one or more people whose sole job is to show up in court and explain the lab’s findings, allowing the techs to keep up with their workload.

  33. 33
    EconWatcher says:

    Dork, I agree that there will be some frivolous challenges, but let me give you a real example from my former days as a criminal defense lawyer. I once defended a guy who was trying to manufacture meth (he was a moron, and I doubt he could have succeeded without blowing himself up, but that’s another story). They caught him with a bunch of precursor chemcials. At the time, his sentence under the federal guidelines depended on the amount of meth these precursor chemicals could produce. The DEA offered a “scientific” report from one of their lab techs calculating a gargantuan amount of meth that these precursor chemicals could allegedly produce, which would have resulted in a 15-year sentence. I got to cross-examine her, and it turns out she was assuming a “100% theoretical yield,” meaning that basically every molecule of the precursors would bind to create methamphetamine–although she did not reveal that in her report. I’m no chemist, but as I understand this is like assuming a frictionless universe–it’s purely theoretical and grossly inaccurate as an actual prediction. Result my guy got, with cross-examination: about six years. result if cross and confrontation had been denied? About 15 years. There you have it.

  34. 34
    vincent says:

    Scalia loves confrontation clause so this
    Not that surprising

  35. 35
    Bootlegger says:


    Shorter—it will be character assassination, not a discovery of lab techniques and procedures.

    I actually thinks this puts more of an onus on judges to keep the defense’s cross on relevant exculpatory matters and on juries to see the difference between bad science and bad bookkeeping. That said, if it keeps one lab from sending up another innocent person for a life sentence I’m all for it.

  36. 36
    Stefan says:

    @Mr Furious: I dont see the point here, really. The defense lawyer is going to question the tech’s education, dig and dig and dig into research notebooks until he/she finds one instance where the tech forgot to initial and date a crossout, then declare all the forensic evidence tested there and elsewhere to be bogus and fabricated. Shorter—it will be character assassination, not a discovery of lab techniques and procedures.

    Yes, that is the defense lawyer’s job. Of course she’s going to do that, and she should, because it’s her job to cast doubt on the prosecution case. However, it is then the job of the prosecutor to point out whether none of that matters to the case at hand, and the job of jury as the tryer of fact to see whether or not they are convinced by the defense lawyer’s argument.

  37. 37
    JG says:

    Whether it is expensive or convenient is totally irrelevant to the constitutional question. While I generally loathe Scalia, this is pretty consistent with his general philosophy. He pretty much hates extra appeals but is generally protective during the trial phase it seems.

  38. 38
    J.D. Rhoades says:

    Maybe now this ridiculous “War on Drugs” will get expensive enough to conduct via the criminal courts that they’ll pursue other tactics, like treatment or prevention.


  39. 39
    J.D. Rhoades says:

    The defense lawyer is going to question the tech’s education, dig and dig and dig into research notebooks until he/she finds one instance where the tech forgot to initial and date a crossout, then declare all the forensic evidence tested there and elsewhere to be bogus and fabricated. Shorter—it will be character assassination, not a discovery of lab techniques and procedures.

    They can do that with ANY witness. So should all testimony be given by affidavit and not subject to cross?

    The point of the opinion is that a crime-lab report is no different from any other type of testimony.

  40. 40
    Bill H says:

    Well, not really. He is, at least, standing up for a more full extension of health insurance, but in no way is what he’s pressing for a reform of health care, which will still be the broken and ineffective “for-profit insurance” model.

  41. 41
    CJ says:

    @Dork: I doubt that it will be as gratuitous as that as lab workers that have big time impeachable records such as you suggest won’t work in criminal investigations labs; at least not after their first testimony is shot to pieces.

    This opinion brings criminal law more in line with what we see in civil practice. In patent cases for example, an expert witness must first lay out their bona fides and then defend their opinions. Experts cannot simply state their opinion as fact and have it regarded as such.

    As some suggest, this will lead to a push for certification that will go a long way towards weeding out shoddy practices.

  42. 42

    They can should do that with ANY witness.


  43. 43
    demimondian says:

    @Mr Furious: No — this is the confrontation clause in action. The jury has the right to see the forensic specialist cross-examined *in front of them and the defendant*.

    If you think that doesn’t matter, I have two words for you to mull over: “Ron Goldberg”. His murderer almost certainly walked free because of the incompetence of the techs at the LA crime lab. That incompetence would never have been exposed if they hadn’t been cross examined.

  44. 44
    dan says:

    The interesting thing is that there is a long standing idea that the court can take “judicial notice” of certain facts.

    Some of them are sort of common sense (a court sitting in Manhattan could take notice of the relative position of streets compared to central park). But courts may take notice of scientific facts as well. So, for example, lie detector tests are not allowed, because the science isn’t there yet. But notice may be taken of a blood test in a paternity suit.

    I’m sort of curious why the court didn’t just fit forensic tests under the already existing judicial notice regime.

  45. 45
    tb says:

    “To now require that criminalists … travel to courtrooms and wait to say that cocaine is cocaine…”

    “…why, this could make throwing people in prison for small quantities of drugs somewhat less practical.”

  46. 46
    dan robinson says:

    There should be a national standard for evidence to be admitted at trial, apart from the adversarial system where two sides say things and the jury sorts it out.

    The FBI had said for 40 years that the lead in a bullet was identifiable, as if it were all from a one manufacturing lot or another. That finally got blown out of the water.

    When I first heard of this form of evidence, I was shocked. What the fuck were these guys saying? This was a crappy idea, but no one challenged it for 40 years. How many people were convicted because of this? How many defendants, faced with this unimpeachable evidence from the FBI crime lab, copped a lesser plea, rather than face a laundry list of charges at trial?

  47. 47
    dmbeaster says:

    I do not practice criminal law, and I am frankly blown away that it was ever the law that scientific reports could be admitted in criminal cases without the testimony of the expert who did the work. That is never permitted in civil cases.

    Think about that — you have to have a doctor testify for your medical malpractice case, but not for a criminal case. It makes zero sense that the law ever permitted this.

    The reasoning of the dissenters is pathetic — sanction unconstitutional practices because it has been the tradition, and it is inconvenient to now start enforcing the law?

    dan @ 44 — courts cannot take judicial notice of factual conclusions in scientific reports. The concept applies to the underlying scientific principles (if it is no longer subject to dispute — sometimes the argument is about how well established is the science on which the test is based), but not a test based on the alleged proper application of those principles in a specific case.

  48. 48
    EconWatcher says:

    dmbeaster, one of the things that shocked me when I switched from criminal defense to commercial litigation was how concerned the judges were for the procedural rights of business clients being sued for money, when I knew from hard experience that these very same judges did not give a hoot for the rights of criminal defendants who were facing long prison sentences if convicted. Some people here will probably immediately assume that this was class or racial prejudice–the civil defendants “looked” more like the judge and his social set, etc. But I actually don’t think this explains it (or at least not entirely), because these judges typically did not give much of a hoot for the rights of “white collar” criminal defendants, either. They just seemed to think that cases involving potential transfer of large sums of money were more important than cases deciding whether a guy gets thrown into a cage for some big chunk of his remaining life. It baffles me to this day.

  49. 49
    Kirk Spencer says:

    Actually, the evidence I’m expecting to see challenged successfully one of these days is fingerprints – and this left the gate to that challenge open.

    To the best of my knowledge there has never been a study to definitively (or even statistically) prove the likelihood of two people having identical fingerprints – much less the likelihood of a match on “partials”. The standard claim is “no duplicates” – proving that is quite a joke.

    It doesn’t help that there have been more than a couple of attempts that made fingerprint analysis look a lot like phrenology. The judges in those cases ruled the testimony invalid or we’d be facing this already.

  50. 50
    Joey Maloney a/k/a The Bard Of Balloon Juice says:

    A federal jury on Thursday awarded $5 million to a Houston man who spent 17 years in prison for a kidnapping and rape he did not commit, finding the city should pay for its “deliberate indifference” to problems at the crime lab whose false evidence secured the conviction.

    George Rodriguez, 48, gained his freedom in 2004 after DNA tests discredited the findings of the troubled Houston Police Department crime lab on his case. By that time, he had served nearly two decades in prison. His father had died. His daughters faced abuse from men their mother lived with.

    More at link…

  51. 51
    Napoleon says:


    I do not practice criminal law, and I am frankly blown away that it was ever the law that scientific reports could be admitted in criminal cases without the testimony of the expert who did the work.

    That was exactly my reaction. The Constitution clearly states you have a right to confront witnesses against you. I don’t know how you could ever say anything short of having them show up in the courtroom to testify against you is Constitutionally satisfactory. How any 4 attorneys who have passed the bar of any state in this nation could come to the conclusion that a witness (in this case a lab worker) can just mail his testimony in, let alone 4 attorneys who went to quality law schools and managed to get themselves appointed to the Supreme Court, is beyond comprehension. But then again the Supreme Court gave us Bush v. Gore.

  52. 52
    Dave Ruddell says:

    I’m a forensic scientist (in Ontario). I expect that I can be called to testify in any case that I work on. Now, I’ve only actually been to court twice in six years of work, so my productivity hasn’t exactly been hurt. Nevertheless, a major part of our training is in giving testimony.

  53. 53
    pseudonymous in nc says:

    Decisions where you get unexpected judicial coalitions are usually fascinating, and this is no exception.

    My gut sense is that defense lawyers will be rubbing their hands at the prospect of making lab techs look bad, but that it’s the job of the prosecution (and judge) to deal with frivolous cross, and there’s the basic need to treat lab reports as something other than holy writ.

    has not the same been true of scalia? when before now has he ever sided with defendants against prosecutors?

    His dissent in Hamdi (with Stevens, another interesting alliance) was a case that comes to mind. He basically said ‘he’s a citizen, so he has the right to file a habeas petition unless the right has been suspended, which it hasn’t.’ (If you’re not a citizen, tough shit.) That’s not a straight-up prosecution/defendant case, though.

  54. 54
    Dayv says:

    Another side effect of this could be greater localisation of crime labs. A lot of non-cutting-edge work may be done at the regional level, and perhaps with a smaller workload for analysts if they are seen to be needed in court relatively frequently. This could have both positive and negatve repercussions. One thing about this would be that a “bad apple” would affect cases in a smaller region and probably more of them, and might hopefully be rooted out more quickly because of this.

Comments are closed.