Causing the Sky to Fall: The Legal & Practical Implications of Melendez-Diaz

Ivana Deyrup*

I. Introduction

On June 25th of last year, the Supreme Court handed down its decision in Melendez-Diaz v. Massachusetts.[1] Justice Scalia’s majority opinion held that the admission of a drug analyst’s affidavit without live testimony over the defendant’s objection violated the Sixth Amendment’s Confrontation Clause.[2] Justice Scalia indicated that the practical effects of the decision would be limited, writing, “[T]he sky will not fall.” However, some attorneys reached the opposite conclusion in the days immediately following the ruling. This was especially true in states where affidavits without accompanying live testimony were a routine method of proving DUI and small-scale drug cases. In Virginia, one Deputy Commonwealth Attorney said, “This is a devastating thing for us . . . defense counsel, at least for the next six months, are going to have a field day.”[3] Massachusetts Attorney General Martha Coakley went so far as to claim that holding drug analyst testimony subject to the Confrontation Clause would cause state misdemeanor prosecutions to “grind to a halt.”[4]

Nine months later, it appears that Justice Scalia was right—the criminal justice system continues to function. However, there is no question that the case has been disruptive. In Massachusetts, the average processing time for analyzing drugs jumped from 109 days in November 2008 to 177 days in November 2009.[5] Law enforcement officials are perhaps most concerned with the impact of Melendez-Diaz in cases where medical examiners are unavailable to testify as to their notes. For example, the Third Circuit, citing Melendez-Diaz, reversed a conviction for attempted aggravated rape of an 11-year old girl because the medical examiner in the case was not available to testify at the trial and her notes were therefore held inadmissible.[6] Additionally, the costs of complying with Melendez-Diaz are significant and growing—the Chief of Law Enforcement for the Utah Attorney General wrote, “This case may well have the biggest financial impact in many years on the cost of policing and prosecution.”[7] Nevertheless, David Lowy, a Massachusetts Superior Court judge, commented at a recent conference that, “Melendez-Diaz is not the sky falling down.”[8]

The relative confidence of law enforcement officials in coping with the new Melendez-Diaz era is buoyed by the proactive measures that have been taken to limit the case’s practical effects, which include new legislation and creative methods of proving cases. Despite these palliative measures, the questions raised by Melendez-Diaz are far from resolved, both because there will be legal challenges to these coping measures and because the holding of the case raised more legal questions than it answered. This Article will examine the major legal questions that Melendez-Diaz raised by exploring current federal and state cases on the Court’s decision. Along the way, it will explore the practical impacts of the decision, which range from the time that will be spent resolving these legal issues to the difficulty faced by state and federal prosecutors in trying drug cases when forensic labs are overwhelmed with demands for their analysts to testify in court. It will also present the benefits of the decision, which include allowing defendants the opportunity to challenge sometimes deficient analytic work. The Article will ultimately conclude with the possibility that Melendez-Diaz may harm defendants in the long run, as courts accept evidence that is weaker than what they would have used prior to Melendez-Diaz to convict defendants.

II. Legal Issues Raised by Melendez-Diaz

Melendez-Diaz has created five significant legal issues that must be resolved. First, courts are already grappling with the question of whether someone other than the analyst may testify in order to introduce the analyst’s forensic evidence in court if the defendant wishes to cross-examine a live witness. Second, the status of statutes placing restrictions on the Confrontation Clause right was already controversial, and has only become more so after Melendez-Diaz. Third, state and federal courts have divided over which documents can still be admitted without live testimony. A fourth, and more easily resolved issue, is whether Melendez-Diaz applies to quasi-judicial proceedings like parole revocation hearings. Fifth, while there has not yet been time for much litigation on the topic, there is every indication that successful attempts by law enforcement officials to reduce the practical effects of Melendez-Diaz by using circumstantial evidence and field tests to prove drug cases will be highly controversial. This Article will address each topic in turn.

1. Which Analysts Must Testify?

Significant litigation already exists over who must testify in order to admit an affidavit from a forensic scientist into evidence should the defendant choose to exert his Confrontation Clause right afterMelendez-Diaz. There are three possible options. First, courts could require the analyst who conducted the test to testify in order to admit his affidavit. Alternatively, courts could hold that the analyst’s supervisor may testify in place of the analyst. During oral arguments in Melendez-Diaz, Chief Justice Roberts recognized this possibility, saying, “I suppose it doesn’t have to be the analyst but whoever they decide to call. So if you had a supervisor who runs the cocaine testing lab and he is the one whose report is submitted, I take it he is the one who would have to show up.”[9] Third, courts could allow someone with a reasonable nexus to the forensic evidence to testify in place of the analyst.

The second approach—allowing the supervisor of an analyst to testify in place of the analyst who actually conducted the forensic test—has gained the most initial support of courts around the country thus far. For example, the Indiana Supreme Court in Pendergrass v. Indiana[10] upheld a conviction that was based on DNA evidence in a case where the supervisor of the DNA analyst testified in place of the technician. In Pendergrass, prosecutors introduced two certificates signed by an analyst for the State Police Laboratory related to DNA test results. Neither certificate contained conclusions about the DNA results. The analyst’s supervisor, who had contemporaneously reviewed the certificates, testified about how the tests were performed based upon the analyst’s notes. The Indiana court found that underMelendez-Diaz “it [is] up to prosecutors to choose among the many ways of proving up scientific results, as long as the way chosen feature[s] live witnesses.”[11] Likewise, a California state appellate court allowed the supervisor of a nurse-practitioner to testify regarding the nurse-practitioner’s notes in a sexual assault case (although it forbade the supervisor from testifying about statements made by the victim that were included in the notes).[12] Another California appellate court came to a similar conclusion on a drug and toxicology report introduced through testimony of the analyst’s supervisor,[13] as did a California federal magistrate judge on a DNA test.[14]

Other courts seem to have adopted the third approach that anyone with a reasonable nexus to the forensic evidence may testify in place of the analyst. For example, in People v. Benjamin,[15] a California state appellate court held that a DNA test could be admitted based on the testimony of an analyst who was a training coordinator in the lab where the test was performed. Although the analyst had not participated in or supervised the test, the court found that she could testify about the report, the procedures used by the laboratory in preparing the test, and the accuracy of the test results.[16] A similar conclusion was reached in People v. Johnson,[17] where an Illinois state appellate court addressed the issue of whether an analyst with the Illinois State Police could testify to a report prepared by a private DNA testing facility. The analyst had used the report from the private facility in conjunction with the State Police’s own DNA test to link a suspect to evidence left at a crime scene. The court found that “the holding inMelendez-Diaz is distinguishable from instances in which a witness testifies at trial about scientific analyses in which he or she did not participate in the analysis.”[18] Interestingly, it is not clear who would be excluded from testifying under Johnson. The case indicates that some circuits may hold that mere live testimony by any expert in the field is enough to admit a test result, regardless of whether that expert is actually connected with the test.

Although not a strict reading of the letter of the law laid down by Melendez-Diaz, merely requiring a live witness, whatever that witness’ nexus to the forensic test, might be sufficient to satisfy some of the practical concerns underlying the Supreme Court’s decision. As part of his rationale for Melendez-Diaz, Justice Scalia cited a recent report by the National Academy of Sciences. That report, Strengthening Forensic Science in the United States,[19] made clear that “the state of forensic science in the criminal justice system is shockingly poor.”[20] Allowing the defense to cross-examine any expert about the affidavit of an analyst will provide the opportunity to bring out what Justice Scalia called the “[s]erious deficiencies . . . in the forensic evidence used in criminal trials.”[21]

However, allowing experts other than the analyst who performed the test to testify does not address Justice Scalia’s other major concern in Melendez-Diaz—the possibility that live testimony is necessary to force “the analyst who provides false results [to], under oath in open court, reconsider his false testimony.”[22] This concern is also drawn from the National Academy of Sciences report, which documented several cases of fraud involving forensic scientists. Among others, the report cited a case in 1993 where a West Virginia police analyst created false evidence for criminal prosecutions.[23] Justice Scalia additionally mentioned a brief submitted by the National Innocence Network, which reported instances of “drylabbing” (or falsification of reports by forensic analysts).[24] Given these concerns, it is not surprising that at least one academic believes that Melendez-Diaz requires the analyst who conducted the test to testify in person to admit his lab results. Richard Friedman, who writes The Confrontation Blog[25] (about, of course, a host of Confrontation Clause issues), has argued that Melendez-Diaz is the natural outgrowth of Crawford v. Washington.[26] Under that line of cases, “[a] witness has to testify about what the witness knows from personal knowledge. A supervisor can’t testify from personal knowledge to what happened with respect to a given test, unless the supervisor observed it.”[27]

The final wrinkle in this cluster of issues is the related question of how far the defendant’s right extends—can the defense claim the right to interview many people relating to the analyst’s report, or just one? Justice Kennedy raised this question in his dissent to Melendez-Diaz. Writing for Chief Justice Roberts, Justice Breyer, and Justice Alito, Justice Kennedy said “a plausible case can be made for deeming each person in the testing process an analyst under the Court’s opinion.”[28] This suggests that underMelendez-Diaz, the defense can demand the right to cross-examine not only the analyst who conducted the test, but also the analyst’s supervisor and the lab technician who calibrated the machine. However, in a footnote to the majority opinion, Justice Scalia wrote, “[W]e do not hold that . . . anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case.”[29] While this indicates that the defendant’s right as to how many people he may call is limited, the footnote is somewhat ambiguous. For example, Justice Scalia commented in the same footnote that if the prosecution wishes to introduce testimony about the chain of evidence, “what testimony is introduced must (if the defendant objects) be introduced live.”[30]

Given these possible clashing interpretations of the letter and spirit of the law of Melendez-Diaz, it is likely that there will be significant division among courts on this issue of who must testify. Allowing someone other than the analyst to testify and prohibiting the defendant from demanding to cross-examine a variety of people associated with the test does significantly reduce the practical harms of Melendez-Diaz, as requiring prosecutors to produce specific analysts in person is a substantial burden. However, as Justice Scalia points out in Melendez-Diaz, not being able to confront the actual analyst will prevent the defense from thoroughly investigating the possibility of fraudulent analysis. It is not clear how soon the Court will resolve this question. Immediately after issuing Melendez-Diaz, the Supreme Court denied a cert petition in People v. Geier.[31] In Geier, the California Supreme Court found that an analyst’s supervisor could testify in place of the analyst in order to admit that analyst’s report. By rejecting the cert petition, the Supreme Court may have indicated that it approves of the California decision. Of course, it is also extremely rare for the Supreme Court to take back-to-back cases on the same topic. Either way, the Supreme Court’s rejection of cert in Geier suggests that the division over who should testify will continue without resolution in the immediate future.

2. What is the Status of Statutes that Limit this Confrontation Clause Right?

Melendez-Diaz also has thrown into doubt the constitutionality of statutes that limit the defendant’s right to confront forensic analysts who have prepared evidence to be used against him. There are two types of such statutes: burden-shifting statutes and notice-and-demand statutes. The constitutionality of these statutes divided courts before Melendez-Diaz, and the trend seems likely to continue. Burden-shifting statutes place the burden of subpoenaing the forensic analyst on the defendant, who also bears the risk that the analyst will not appear. Notice-and-demand statutes place the burden of calling the witness on the government, but require the defendant to give notice within a certain number of days that he will exercise his Confrontation right. Such statutes may also place other restrictions on whether a witness will be called.

The Supreme Court seems to have definitively ruled that burden-shifting statutes are unconstitutional in Briscoe v. Virginia,[32] which was decided shortly after Melendez-Diaz. The Virginia statute in Briscoe provided that:

“The accused in any hearing or trial in which a certificate of analysis is admitted into evidence pursuant to § 19.2-187 . . . shall have the right to call the person performing such analysis or examination or involved in the chain of custody as a witness therein, and examine him in the same manner as if he had been called as an adverse witness. Such witness shall be summoned and appear at the cost of the Commonwealth.”[33]

The defendants in Briscoe argued that under the terms of this statute, the burden is on the defense to call the analyst to trial, and that if the analyst fails to appear, the statute “shifts to the accused the risk that a competent witness will not appear to testify at trial.”[34] Rather than argue that burden-shifting statutes were constitutional, Virginia instead argued that the statute was not burden-shifting pursuant to an interpretation by its state Supreme Court. The Supreme Court, after vigorous oral argument on this topic, reversed the Virginia Supreme Court in a one-paragraph opinion.

It is not surprising that Virginia was unwilling to defend the constitutionality of burden-shifting statutes, given that Melendez-Diaz itself involved a Massachusetts version of such a statute. Under the relevant Massachusetts statute, “Petitioner . . . could have obtained a subpoena . . . or used his right to compulsory process, under both the state and federal constitutions, to compel the analysts to testify at trial.”[35] Writing in Melendez-Diaz, Justice Scalia rejected the statute as constitutionally insufficient. He found that the power to subpoena the forensic analyst “is no substitute for the right of confrontation.”[36] In other words, the defendant should not have to run the risk of a subpoenaed witness not appearing in court. Based on Justice Scalia’s reasoning, the Oregon Court of Appeals recently found unconstitutional a statute that allowed an affidavit of a forensic analyst to be submitted without live testimony while guaranteeing the right of the defendant to subpoena the analyst (at no cost to the defendant).[37]

Questions regarding notice-and-demand statutes have also been raised. A simple notice-and-demand statute “require[s] the prosecution to provide notice to the defendant of its intent to use an analyst’s report as evidence at trial, after which the defendant is given a period of time in which he may object to the admission of the evidence absent the analyst’s appearance live at trial.”[38] Many states had such statutes prior to Melendez-Diaz (including Georgia and Texas), and as previously mentioned, at least one state, Virginia, has passed such a statue in the wake of the case. Virginia held a special legislative session in August to pass a notice-and-demand statute after the number of subpoenas to drug analysts in the state increased from 43 in July 2008 to 925 in July 2009.[39] A similar notice-and-demand statute is pending in the Massachusetts State Legislature, and is now before the Joint Committee on the Judiciary. That bill would require the defendant to exercise his Confrontation Clause right regarding a forensic report before the pre-trial conference.[40] The Supreme Court noted in dicta in Melendez-Diaz that such simple notice-and-demand statutes are constitutional, saying that there is “no conceivable reason why [the defendant cannot] be compelled to exercise his Confrontation Clause rights before trial.”[41] As with the question of who may testify under Melendez-Diaz, it is not clear when (or if) the Court will definitively resolve this issue. The Court may have indicated it would uphold such statutes by denying cert in Hinojos v. People,[42] just four days after issuing Melendez-Diaz. Hinojos involved the constitutionality of a Colorado statute requiring the defendant to give notice that he intends to exercise his right to confront a forensic analyst at least ten days before trial.

The status of more complicated notice-and-demand statutes is more controversial. For example, the Kansas Supreme Court recently struck down part of the state’s notice-and-demand statute pursuant toMelendez-Diaz.[43] The statute required the defendant to give notice if he intended to exercise his Confrontation Clause right within ten days of being notified that the government intended to present affidavit evidence of a forensic analyst at trial. This requirement was not controversial. However, the statute also said that the affidavit would be admitted into evidence without live testimony over the defendant’s objection unless:

“it appears from the notice of objection and grounds for that objection that the conclusions of the certificate, including the composition, quality or quantity of the substance submitted to the laboratory for analysis or the alcohol content of a blood or breath sample will be contested at trial.”[44]

This constraint addressed a significant concern of Melendez-Diaz opponents that defendants would call analysts without intending to contest their scientific conclusions. Indeed, this concern has been at least partially borne out in reality. For example, Virginia’s Roanoke laboratory described the situation as follows: in responding to thirteen subpoenas, analysts “spent 74 hours out of the office, traveled 2,600 miles and testified only twice for a total of 10 minutes. They were never questioned by the defense.”[45] However, the Kansas Supreme Court held in State v. Laturner[46] that the statute’s second constraint on the defendant’s Confrontation Clause right was unconstitutional and that a previous decision upholding the constitutionality of this statute was “no longer viable after Crawford and Melendez-Diaz.”[47] It did not find that the time limit constraint in the statue was unconstitutional, and a Kansas appellate court has subsequently upheld that portion of the statute.[48] In sum, the status of both burden-shifting statutes and simple notice-and-demand statutes seems fairly clear; following Melendez-Diaz the former is unconstitutional and the latter is constitutional. However, as Laturner demonstrates, more complicated notice-and-demand statutes will be more problematic. The letter of Melendez-Diaz suggests that they are unconstitutional, but it is unclear whether courts will strictly follow Justice Scalia’s reasoning with respect to this issue.

3. Which Documents Can Still Be Admitted Without Live Testimony?

A third significant question raised by Melendez-Diaz concerns those documents that do not require live testimony to be admitted in court even if the defendant asks to cross-examine a witness relating to the documents. Melendez-Diaz, of course, made it clear that certificates prepared by forensic analysts are subject to the Confrontation Clause. Debate has arisen over which other types of documents will be considered subject to the Confrontation Clause under Melendez-Diaz. Courts have already begun to see cases regarding the admissibility of three types of documents: business records, certificates of non-record, and certificates of accuracy.

Business records have traditionally been considered not to be subject to the Confrontation Clause provided that they are “kept in the regular course of business” and are not the “production of evidence for use at trial.”[49] The majority opinion in Melendez-Diaz indicated that the Court intended to maintain this exception, writing, “Business and public records are generally admissible absent confrontation . . . because—having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial—they are not testimonial.”[50] The lower courts appear willing to follow the Supreme Court’s dicta on this topic. For example, the Fourth Circuit held in United States v. Gitarts[51] that Melendez-Diaz “explicitly reaffirms . . . that traditional business records are not testimonial evidence.”[52] Likewise, a Texas appellate court held that prison records kept in the regular course of business were not subject to the Confrontation Clause under Melendez-Diaz.[53]

While the traditional exception for business records remains intact, the admission without live testimony of certificates of non-record or certificates “attesting to the fact that the clerk had searched for a particular relevant record and failed to find it,”[54] has successfully been attacked. Before Melendez-Diaz, the Fifth, Seventh, Eighth, Ninth, and D.C. Circuits held that certificates of non-record (CNRs) were not subject to the Confrontation Clause.[55] However, in Melendez-Diaz dicta, Justice Scalia cited CNRs as examples of evidence subject to the Confrontation Clause right.[56] As a result, at least two states have overturned their precedents on CNRs. In Tabaka v. District of Columbia[57] and Washington v. State of Florida[58] the D.C. and Florida state courts of appeals, respectively, held that CNRs were not admissible without live testimony should the defendant choose to exercise his Confrontation Clause right. In Tabaka, the D.C. court of appeals found that a certificate that the defendant did not have a driver’s license in a drunk driving case “was inadmissible over objection without corresponding testimony by the DMV official who had performed the search”[59] under Melendez-Diaz. Similarly, in Washington v. State of Florida, the Florida appellate court found that a certificate that the defendant was not licensed as a contractor could not be admitted when the defendant exercised his Confrontation Clause right and no one from the Florida Construction Industry Licensing Board testified.[60]

Cases have also already been brought regarding certificates of accuracy following Melendez-Diaz.Certificates of accuracy are frequently introduced without live testimony in order to prove the accuracy of law enforcement equipment, including breathalyzer tests and radar guns. The response of the circuits and states thus far has been to find that such tests are not subject to the Confrontation Clause and may therefore be admitted over the defendant’s objection without a live witness. In United States v. Forstell,[61] United States v. Griffin,[62] and State v. Bergin,[63] two separate Virginia federal magistrate judges and an Oregon state appellate court, respectively, held that breathalyzer tests were not subject to the Confrontation Clause after Melendez-Diaz. Similarly, in United States v. Bacas,[64] another Virginia federal magistrate judge held that the “certificates of accuracy for the tuning forks used to confirm the proper operation of the radar device” did not require testimony.[65] However, a Massachusetts defense attorney has said, “Massachusetts DUI lawyers are likely to launch Melendez-Diaz attacks on breathalyzer evidence in the near future.”[66]

4. Does Melendez-Diaz Apply in Quasi-Judicial Proceedings?

The application of Melendez-Diaz in quasi-judicial proceedings appears to be less complicated than the other issues addressed in this Article. Quasi-judicial proceedings (like parole revocation hearings) are treated differently from criminal trials. “[T]he full panoply of rights due a defendant in [a criminal proceeding] does not apply to parole revocations.”[67] Thus, prior to Melendez-Diaz, a number of circuits and state courts (including the First, Second, Eighth, Ninth and D.C. Circuits) held that Crawford, Melendez-Diaz’s predecessor, did not apply to quasi-judicial proceedings.[68] Similarly, courts have found that Melendez-Diaz does not apply to quasi-judicial proceedings. Thus, a Missouri federal district court judge in United States v. Hibbert,[69] a South Dakota federal magistrate judge in United States v. Left Hand Bull,[70] and the Tennessee State Criminal Court of Appeals in State v. Walker[71] have all held that Melendez-Diaz does not apply to parole revocation hearings. The Tennessee court wrote, “[N]othing in Melendez-Diaz indicates that it is to be applied in [quasi-judicial proceedings.]”[72] Thus, Professor Robert Friedman appears to be correct when he said at a recent conference that the Supreme Court’s holding would not “be a problem” in quasi-judicial proceedings.[73]

5. What Is the Status of Attempts to Use Circumstantial Evidence or Field Tests to Reduce the Practical Effects of Melendez-Diaz?

Finally, as previously mentioned, law enforcement officials and the courts have used a number of strategies to reduce the practical effects of Melendez-Diaz in drug cases. Recent actions by courts and police officers in the Commonwealth of Massachusetts provide a good example of these (extremely varied) strategies. First, Massachusetts courts have frequently found that violations of Melendez-Diazinvolve harmless errors. Indeed, Melendez-Diaz’s appeal itself is still pending in the state court system, where the error might also be found to be harmless.[74] To uphold these violations as harmless, Massachusetts courts often rely on circumstantial evidence in drug cases. For example, the Massachusetts Supreme Judicial Court (SJC) held this November in Commonwealth v. Connolly[75] that although it had to strike the admission of drug certificates under Melendez-Diaz, the error was harmless because the case could be proved through circumstantial evidence. The SJC relied on the testimony of police officers that the substance was cocaine, the jury’s inspection of the drugs and handling of that evidence, and the defendant’s own admissions to a confidential informant to find that there was enough to uphold the defendant’s conviction for trafficking between 100 and 200 grams of cocaine.[76] Similarly, a Massachusetts Court of Appeals refused to find an ineffective assistance of counsel claim pursuant to Melendez-Diaz because, even though the drug certificates had been disqualified, “where an adequate foundation is laid, an experienced police officer can testify that a substance is a particular controlled drug.”[77]

Second, Massachusetts law enforcement officials have also begun using circumstantial evidence or field tests by police officers to avoid calling in drug analysts. In Commonwealth v. Martel, a police officer tested a substance while on the stand to determine whether it was heroin.[78] The officer said that he had received two hours of training online to administer the field test and had paid “less than $9.95” for his certification.[79] A Bristol County Assistant District Attorney said of Commonwealth v. Martel that, “We are going to get the analysts down in certain cases, but this case shows that we have other weapons in our arsenal, which include proving cases circumstantially.”[80]

Melendez-Diaz itself offers no specific guidance on the legality of such attempts to limit the practical impacts of its holding. In Footnote 14, Justice Scalia wrote, “Today’s opinion, while insisting upon retention of the confrontation requirement, in no way alters the type of evidence (including circumstantial evidence) sufficient to sustain a conviction.”[81] While the overall tenor of Melendez-Diaz would probably disfavor these actions, federal and state courts will have to look outside the four corners of the case when reviewing actions like those taken in Massachusetts. Given the enormous practical impacts of Melendez-Diaz, cases on this topic are likely to be extremely controversial. Ironically, if courts decide that such actions are permissible, then the end result of Melendez-Diaz may be to make the quantum of proof used to convict defendants less, rather than more. As one defense attorney put it, “The bizarre result here is that if judges start letting this happen, then you’re going to have trials decided with even less reliable evidence than before Melendez-Diaz, which was absolutely never intended by the Supreme Court.”[82]

III. Conclusion

While this article began by indicating that the effects of Melendez-Diaz thus far have not been catastrophic, it will end by arguing that attempts by both the defense and the prosecution to exploit the case could have a more dramatic impact. The more courts accept arguments by defendants that the right granted in Melendez-Diaz should be interpreted strictly—e.g., the more the legal issues described above are decided against the government—the more difficulty law enforcement officials will have in proving cases. This difficulty is likely to have two consequences. First, prosecutors will be forced to dismiss some cases because of their inability to introduce evidence at trial. This consequence is not necessarily negative. One defense attorney has said that Melendez-Diaz may be an effective means of making the true costs of prosecuting minor violations, such as low-level drug cases, more apparent.[83] However, this effect is one that must be recognized. There are limited numbers of forensic analysts, especially medical examiners, and the more strictly Melendez-Diaz is enforced, the more defendants will escape criminal prosecution because of the unavailability of forensic scientists. Depending on how courts resolve these splits, Melendez-Diaz could even place a de facto statute of limitations on murders, if cases are no longer provable after medical examiners die or otherwise become unavailable.[84]

The second possible result (which is not exclusive of the first) is that law enforcement officials will begin to resort to circumstantial evidence and field tests to prove cases. This will have the disquieting result that some defendants will be convicted on the strength of evidence that is less strong than that used prior to Melendez-Diaz. Of course, these drug analyses will continue to be done—but it should matter that this evidence will not be accessible to the jury. It is not clear that the practical benefits to defendants are worth this cost. While the defense has increased its chances of getting an acquittal based on the inability of the forensic analyst to appear, there is little evidence that defense lawyers are using this opportunity to cross-examine witnesses about the unreliability of certain forensic tests and specific forensic scientists.

Justice Scalia, however, predicted that this effect would be limited: “[D]efense attorneys [will not] want to antagonize the judge or jury by wasting their time with the appearance of a witness whose testimony defense counsel does not intend to rebut in any fashion.”[85] It is too early to be certain about the actual empirical answer to this question. If, however, some of the already significant number of cases concerning ineffective assistance of counsel claims, for failure to raise Melendez-Diaz objections, are decided in favor of the defendant, Justice Scalia may be proved wrong. Research conducted prior to December 2009 revealed no cases in which the defendant prevailed in such a claim. Indeed, courts will likely be very cautious about granting Melendez-Diaz inspired ineffective assistance of counsel claims. But, it is not obvious that this caution will be enough to forestall defense attorneys from demanding to cross-examine forensic experts, given that a Melendez-Diaz objection can easily make the difference between acquittal and conviction. This is especially true in murder and rape cases where the medical examiner is absent.

In large part motivated by concerns about these practical effects of Melendez-Diaz, twenty-six states have filed an amicus curiae brief in Briscoe asking the Supreme Court to overturn its decision last Term. The brief states, “If there is any possibility that the Court might ever reconsider Melendez-Diaz, it is far better to do it now rather than wait for state criminal justice systems to be overwhelmed with demands for lab technicians to testify (needlessly) at trial.”[86] The Supreme Court declined this opportunity. Thus, there is currently no easy answer to the Melendez-Diaz dilemma. Overall, the practical effects of Melendez-Diaz should serve mainly to caution courts about the effects of interpreting the Confrontation Clause too strictly. Particularly, should courts begin holding that analysts who conduct tests must themselves testify in person, or that simple notice-and-demand statutes are unconstitutional, the effect on our justice system would be considerable. The sky has not fallen, but it may yet.

*JD Candidate, Harvard Law School, 2011. Thanks to Alex Whiting, Erin Murphy, Travis Crum, and of course, Dan Greco.

[1] 129 S. Ct. 2527 (2009), available at

[2] The Confrontation Clause provides that “in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const., amend. VI. In recent years, the Supreme Court has created a revolution in Confrontation Clause jurisprudence. See, e.g., Crawford v. Washington, 541 U.S. 36 (2004); Davis v. Washington, 547 U.S. 813 (2006).

[3] Alan Cooper, Lawyers Jump on DUI Case, Va. Lawyers Weekly, July 6, 2009, available at

[4] Jenny Paul, Coakley: Forensics testimony a burden, Boston Globe, Nov. 11, 2008, available at _a_burden/.

[5] This was despite Massachusetts’ recent de-criminalization of some marijuana possession, which presumably decreased the number of drug cases requiring analysis.

[6] Gov’t of the Virgin Islands v. Vicars, 340 Fed.App’x 807 (3d Cir. 2009).

[7] Ken Wallentine, 12 Supreme Court Cases Affecting Cops, PoliceOne.Com, Nov. 11, 2009,

[8] David Lowy, J., Mass. Super. Ct., Moderator of Admissibility of Forensic Evidence Panel at the New England Journal on Criminal and Civil Confinement Symposium: Confronting Forensic Evidence (Nov. 13, 2009).

[9] Transcript of Oral Argument at 4:3-8, Melendez-Diaz, No. 07–591 (Nov. 10, 2008), cited in Federal Evidence Review, Supreme Court Watch: Initial Questions Raised By The Melendez-Diaz Confrontation Clause Opinion (June 29, 2009),

[10] 913 N.E.2d 703 (Ind. 2009).

[11] Id. at 708 (citing Melendez-Diaz).

[12] People v. Gutierrez, 99 Cal. Rptr. 3d 369, 374–78 (Cal. Ct. App. 2009).

[13] People v. Rutterschmidt, 98 Cal. Rptr. 3d 390 (Cal. Ct. App. 2009).

[14] Larkin v. Yates, No. CV 09-2034-DSF, 2009 WL 2049991 (C.D. Cal. July 9, 2009).

[15] No. B211183, 2009 WL 2933153 (Cal. Ct. App. Sept. 15, 2009).

[16] Id. at *6.

[17] No. 1-07-3372, 2009 WL 2999142 (Ill. App. Ct. Sept. 18, 2009).

[18] Id. at *9.

[19] Nat’l Research Council, Strengthening Forensic Science in the United States: A Path Forward (2009).

[20] Erin Murphy, What ‘Strengthening Forensic Science’ Today Means For Tomorrow: DNA Exceptionalism and the 2009 NAS Report, Law, Probability & Risk (forthcoming Apr. 2010) (manuscript at 1, on file with author).

[21] Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2537 (2009).

[22] Id.

[23] Nat’l Research Council, supra note 19, at 44.

[24] Melendez-Diaz, 129 S. Ct. at 2537.

[25] Richard Friedman, The Confrontation Blog,

[26] Richard D. Friedman, Professor of Law, Univ. of Mich. Law Sch., New England Journal on Criminal and Civil Confinement Symposium: Confronting Forensic Evidence (Nov. 13, 2009).

[27] Email from Richard D. Friedman to author (Nov. 27, 2009) (on file with author).

[28] Melendez-Diaz, 129 S. Ct. at 2545.

[29] Id. at 2532.

[30] Id.

[31] 129 S. Ct. 1856 (2009).

[32] Magruder v. Virginia, 657 S.E.2d 113 (Va. 2008), cert. granted sub nom. Briscoe v. Virginia, 129 S. Ct. 2858 (2009).

[33] Va. Code Ann. § 19.2–187.1 (2000).

[34] Brief of Petitioner at 8, Briscoe v. Virginia, 129 S. Ct. 2858 (Sept. 1, 2009) (No. 07-11191).

[35] Brief of Respondent at 57, Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (Sept. 2, 2008) (No. 07–591).

[36] Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2540 (2009).

[37] State v. Willis, 213 P.3d 1286 (Or. Ct. App. 2009).

[38] Melendez-Diaz, 129 S. Ct. at 2541.

[39] Sabri Ben-Achour, Virginia Holds Special Legislative Session to Respond to Court Ruling(American University broadcast Aug. 19 2009). The Commonwealth may also have passed this legislation to address concerns that the state’s former forensic evidence statute will be held unconstitutional in Briscoe.

[40] H. 4162, 2009 Gen. Assem., Reg. Sess. (Ma. 2009), available at /ht04/ht04162.htm.

[41] Melendez-Diaz, 129 S. Ct. at 2541.

[42] 169 P.3d 662 (Colo. 2007), cert. denied, 129 S.Ct. 2856 (2009).

[43] State v. Laturner, 218 P.3d 23 (Kan. 2009).

[44] Kan. Stat. Ann. § 22–3437(3) (2008).

[45] Alan Cooper, Prosecutors, analysts deal with Melendez-Diaz fallout, Virginia Lawyers Weekly, Nov. 30, 2009, available at

[46] 218 P.3d 23.

[47] Randall Hodgkinson, Melendez-Diaz in Kansas, Kansas Defenders, Oct. 9, 2009, available at

[48] State v. Murphy, 219 P.3d 1223 (Kan. Ct. App. 2009).

[49] Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2538 (2009).

[50] Id. at 2439–40.

[51] No. 08-500, 2009 WL 2705507 (4th Cir. Aug. 28, 2009).

[52] Id. at *3–*4.

[53] Grey v. State, 299 S.W.3d 902 (Tex. Ct. App. 2009).

[54] Melendez-Diaz, 129 S. Ct. at 2539.

[55] Washington v. State of Florida, No. 4D08-597, 2009 WL 3189188, *3 n.1 (Fla. Dist. Ct. App. Oct. 7, 2009).

[56] Melendez-Diaz, 129 S. Ct. at 2439–40.

[57] 976 A.2d 173 (D.C. 2009).

[58] 18 So.3d 1221 (Fla. Ct. App. 2009).

[59] Tabaka, 976 A.2d at 175–76.

[60] Washington, 2009 WL 3189188, at *2–*3.

[61] 656 F. Supp. 2d 578 (E.D. Va. 2009).

[62] No. 3:09MJ308, 2009 WL 3064757 (E.D. Va. Sept. 22, 2009).

[63] 217 P.3d 1087 (Or. Ct. App. 2009).

[64] 662 F. Supp. 2d 481 (E.D. Va. 2009).

[65] Id. at 483–84.

[66] Brian E. Simoneau, Massachusetts Breathalyzer Evidence Likely to Be Challenged, Massachusetts DUI Law, Nov. 22, 2009,

[67] Morrissey v. Brewer, 408 U.S. 471, 480 (1972).

[68] See United States v. Rondeau, 430 F.3d 44, 47–48 (1st Cir. 2005); United States v. Aspinall, 389 F.3d 332, 342 (2d Cir. 2004); United States v. Ray, 530 F.3d 666, 668 (8th Cir. 2008); United States v. Hall, 419 F.3d 980, 985–86 (9th Cir. 2005); Ash v. Reilly, 431 F.3d 826, 829–30 (D.C. Cir. 2005).

[69] No. 4:09CR00244ERW, 2009 WL 2948460 (E.D. Mo. Sept. 14, 2009).

[70] No. CR 05-30106(01)-CBK, 2009 WL 2030544 (D.S.D. July 13, 2009).

[71] No. M2008-02824-CCA-R3-CD, 2009 WL 2433176 (Tenn. Ct. App. Aug. 10, 2009).

[72] Id. at *4.

[73] Friedman, supra note 26.

[74] Mary Rogers, Counsel of Record for Melendez-Diaz, New England Journal on Criminal and Civil Confinement Symposium: Confronting Forensic Evidence (Nov. 13, 2009). The Supreme Court said, “We of course express no view as to whether the error was harmless.” Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2542 n.14 (2009).

[75] 913 N.E.2d 356 (Mass. 2009).

[76] Id. at 374–376.

[77] Commonwealth v. Montina, 914 N.E.2d 362, at *2 (Mass. Ct. App. 2009).

[78] David E. Frank, Fall River District Court Drug Trial Raises Concern: Defense Bar Shocked In-Court Testing Allowed, Massachusetts Lawyers Weekly, Nov. 9, 2009.

[79] Id.

[80] Id.

[81] Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2542 n.14 (2009).

[82] Frank, supra note 78 at *1.

[83] Joseph King, Counsel of Record for Briscoe, New England Journal on Criminal and Civil Confinement Symposium: Confronting Forensic Evidence (Nov. 13, 2009).

[84] See, e.g., Gov’t of the Virgin Islands v. Vicars, 340 F. App’x 807 (3d Cir. 2009) for an example of dismissal of physician’s report in light of Melendez-Diaz.

[85] Melendez-Diaz, 129 S. Ct. at 2542. Cf. Judith Resnik, Managerial Judges, 96 Harv. L. Rev. 374 (1982).

[86] Brief for Indiana et al. as Amici Curiae in Support of Respondent at 32, Briscoe v. Virginia, 129 S. Ct. 2858 (Nov. 2, 2009) (No. 07-11191).

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