Until last month, the strongest evidence in drug and drunk driving cases in courtrooms across the nation often was a piece of paper. A crime lab or Breathalyzer report would confirm that the defendant indeed had illegal drugs or a high level of alcohol in his or her system.
But a Supreme Court decision has sent a jolt through that procedure.
Now the prosecution must make a lab technician available to testify in person if the defendant demands it. As a result, some cases already have been dismissed. One state, Virginia, has called a special legislative session to change its laws. And some lawyers think the ruling will continue to have a major effect.
In a 5-4 decision, the high court said that lab reports served as “witnesses” for the prosecution. And because the 6th Amendment gives defendants a right to “be confronted with the witnesses against him,” Justice Antonin Scalia said that drug defendants and others were “entitled to be confronted with the [lab] analysts at trial.”
While Scalia said the decision upheld the basic right to question the prosecution’s witnesses, the four dissenters said the ruling had “vast potential to disrupt” the criminal courts. They also said it gave “a great windfall” to defendants, some of whom could have their cases dismissed because a lab technician was not available to testify.
Some prosecutors have said they fear the uncertainty -- and the potential cost -- of being required to have lab technicians ready to testify.
“This is a train wreck in the making,” said Scott Burns, executive director of the National District Attorneys Assn. “The court is saying you can’t submit an affidavit saying that the cocaine is cocaine. The criminalist must be there to testify the cocaine is cocaine. Particularly in rural states and in smaller communities, this is going to be a major problem.”
In Virginia, several judges in the last month have dismissed drunk driving charges against motorists because technicians were not in court to testify about how a Breathalyzer was calibrated. Gov. Tim Kaine has called the Legislature into a one-day special session to pass a bill, similar to laws in dozens of states, that will put defendants and their lawyers on notice before a trial that a lab report will be submitted as evidence. The defense lawyer then would have a duty to tell prosecutors whether a lab tech must be there to testify.
The court’s decision also raised questions. For example, is the required witness the lab technician who ran an evidence sample through a machine, or the expert who programmed or calibrated the machine?
It is also not clear what happens in cases in which the lab expert is not available. “What are you supposed to do if your ballistic expert moved from Cleveland to Phoenix prior to the trial?” Burns said.
“We are particularly concerned about prosecuting cold cases,” said Lael Rubin, a deputy district attorney in Los Angeles, because the lab experts who worked on old crimes may no longer be available. She said the decision could force the retesting of old samples, assuming they can be tested.
Perhaps the biggest question is how many defendants will take advantage of this new right. More than 9 in 10 drug cases end in a plea bargain, not a trial before a jury.
Stanford law professor Jeffrey L. Fisher, who won the case before the high court, said states such as California routinely bring crime experts to trials. Other states require prosecutors and defense lawyers to agree in advance what kinds of evidence will be submitted. “It may take a little while, but people will figure this out,” Fisher said.
Some defense lawyers predicted the effect of the ruling would be minimal.
“It will be the rare case where this comes into play,” said Steve Benjamin, a criminal defense lawyer in Richmond, Va. “It will be unusual for a defense lawyer to insist on live testimony. All you are doing in those situations is emphasizing the evidence that incriminates your client.”
He and other defense lawyers, however, emphasized that crime labs had made mistakes that had sent the innocent to prison. For example, reports on hair samples and bite marks have been shown to be exaggerated or false. In some cases, they said, it is crucial to question a crime lab expert to expose doubts about the evidence.
And the high court may not be finished with the issue. On the last day before the summer recess, the justices voted to hear a Virginia case to decide whether the prosecutor or the defense lawyer had the duty to call a lab expert as a witness.
It was a curious move, since a 5-4 majority had ruled just days before that the prosecutor had a duty, if asked, to present live testimony from a lab technician. But that majority included now-retired Justice David H. Souter, leaving open the possibility that a new justice -- Sonia Sotomayor, if she is confirmed -- could tilt the court in a different direction.