No. 07-591

IN THE

LuIs E. MELENDEZ-DIAZ,

MASSACHUSETTS,

Petitioner,

Respondent.

On Petition for Writ of Certiorarito the Appeals Court of Massachusetts

MOTION FOR LEAVE TO FILE BRIEF ASAMICI CURIAE AND BRIEF OF AMICI CURIAE

BY PROFESSORS PAMELA R. METZGER,JENNIFER L. MNOOKIN, AND ANDREW E.

TASLITZ, THE NATIONAL ASSOCIATION OFCRIMINAL DEFENSE LAWYERS, THE

INNOCENCE PROJECT, THE NATIONALCOLLEGE FOR DUI DEFENSE, THE

COMMITTEE FOR PUBLIC COUNSELSERVICES, AND THE MASSACHUSETTSASSOCIATION OF CRIMINAL DEFENSELAWYERS IN SUPPORT OF PETITIONER

TIMOTHY P. O’TOOLE JEFFREY T. GREEN*MILLER ~ CHEVALIER SARAH O’ROURKE SCHRUP655 Fifteenth St., N.W.NORTHWESTERN UNIVERSITYWashington, D.C. 20004SUPREME COURT PRACTICUM(2f)2)_ 628-.1200 .....357 East Chicago Avenue

Chicago, IL 60611(312) 503-0063

December 3, 2007 * Counsel of Record

[Additional Counsel on Inside Cover]

WlLSON-EPES PRINTING CO., INC. - (202) 789-0096 - WASHINGTON, D. C. 20002

BROWNLOW M. SPEERCOMMITTEE FOR PUBLIC

COUNSEL SERVICES,PUBLIC DEFENDERDIVISION

44 Bromfield St.Boston, MA 02108(617) 482-6212

JENNIFER L. MNOOKINVICE DEAN AND

PROFESSOR OF LAWUCLA SCHOOL OF LAWBox 951476Los Angeles, CA90095-1476(310) 825-4841

ANDREW E. TASLITZ

PROFESSOR OF LAW

HOWARD UNIVERSITY

SCHOOL OF LAW

2900 Van Ness St., N.W.Washington, DC 20008(202) 806-8029

RANDY S. CHAPMAN

MASSACHUSETTS ASS’N OF

CRIMINAL DEFENSE

LAWYERS

Box 473, 321 Walnut St.Newton, MA 02460(617) 965-2215

LEONARD R. STAMM

W. TROY MCKINNEY

NATIONAL COLLEGE FOR

DUI DEFENSE

445 S. Decatur St.Montgomery, AL 36104(334) 264-1950

PAMELA R. METZGER

ASSOCIATE PROFESSOR OF

LAW & DIRECTOR,

CRIMINAL LAW CLINIC

TULANE UNIVERSITY LAW

SCHOOL

Weinmann Hall6329 Freret St.New Orleans, LA 70118(504) 865-5759

BARRY C. SCHECK

PETER J. NEUFELD

DAVID LOFTIS

INNOCENCE PROJECT, INC.

100 Fifth Avenue, 3rdFloor

New York, NY 10011(212) 364-5340

No. 07-591

IN THE

LUIS E. MELENDEZ-DIAZ,

Vo

MASSACHUSETTS,

Petitioner,

Respondent.

On Petition for Writ of Certiorarito the Appeals Court of Massachusetts

MOTION FOR LEAVE TO FILE BRIEF ASAMICI CURIAE IN SUPPORT OF PETITIONER

Amici curiae include Professors of Law withexpertise in issues of forensic science, criminalprocedure, and constitutional law, the NationalAssociation of Criminal Defense Lawyers ("NACDL"),a non-profit association of criminal defense lawyerswith a national membership of more than 10,000attorneys, the National College for DUI Defense, anon-profit professional organization withapproximately 850 members which sponsors or co-sponsors at least four major continuing educationprograms annually specializing in issues relating tothe defense of persons charged with driving under theinfluence, the Committee for Public Counsel Services,a statewide agency in Massachusetts responsible forthe delivery of court-appointed criminal defenseservices to indigent adults and children facingjuvenile or criminal prosecutions, the MassachusettsAssociation of Criminal Defense Lawyers ("MACDL"),

2

a non-profit association devoted to protecting therights of the accused and to serving as a voice for thedefense before state and federal courts, and theInnocence Project, a leader in the exoneration of thewrongfully convicted, respectfully request leave ofthis Court to file the following brief in the abovecaptioned matter. In support of its motion, Amicistate as follows:

1. The petitioner granted its consent in writing.Petitioner’s written consent is being filedsimultaneously with this Brief and Motion.Respondent refused consent "as a matter of policy."

2. Amici in support of petitioner in this matterrepresent a unique combination of practitioners who,in trials around the country and in Massachusettsitself, are involved each day with issues surroundingadmission of forensic evidence in the form oflaboratory reports or summaries, as well asdistinguished law professors who have studied howthese issues are resolved in a wide variety ofjurisdictions. As such, amici offer a broad and uniqueperspective on an important issue of constitutionaldimension that affects the conduct of criminal trialsat one of its most basic and important levels--themanner in which evidence is presented to fact findersand the ability of the defense to test that evidence.The numerous and diverse amici appearing on thisbrief have worked diligently to file a single brief inthe interest of speaking forcefully and efficiently onthe Confrontation Clause issues discussed herein.

3

Respectfully submitted,

TIMOTHY P. O’TOOLEMILLER ~ CHEVALIER655 Fifteenth St., N.W.Washington, D.C. 20004(202) 628-1200

JEFFREY T. GREEN*SARAH O’ROURKE SCHRUPNORTHWESTERN UNIVERSITYSUPREME COURT PRACTICUM357 East Chicago AvenueChicago, IL 60611(312) 503-0063

BROWNLOW M. SPEERCOMMITTEE FOR PUBLIC

COUNSEL SERVICES,PUBLIC DEFENDER

DIVISION44 Bromfield St.Boston, MA 02108(617) 482-6212

LEONARD R. STAMMW. TROY MCKINNEYNATIONAL COLLEGE FOR DUIDEFENSE445 S. Decatur St.Montgomery, AL 36104(334) 264-1950

JENNIFER L. MNOOKINVICE DEAN AND

PROFESSOR OF LAWUCLA SCHOOL OF LAWBox 951476Los Angeles, CA90095-1476(310) 825-4841

PAMELA R. METZGERASSOCIATE PROFESSOR OFLAW 8~ DIRECTOR, CRIMINALLAW CLINIC

TULANE UNIVERSITY LAWSCHOOL

Weinmann Hall6329 Freret St.New Orleans, LA 70118(504) 865-5759

ANDREW E. TASLITZPROFESSOR OF LAWHOWARD UNIVERSITYSCHOOL OF LAW2900 Van Ness St., N.W.Washington, DC 20008(202) 806-8029

4BARRY C. SCHECKPETER J. NEUFELDDAVID LOFTISINNOCENCE PROJECT, INC.100 Fifth Avenue, 3rd FloorNew York, NY 10011(212) 364-5340

RANDY S. CHAPMANMASSACHUSETTS ASS’NOF CRIMINAL DEFENSELAWYERS

Box 473, 321 Walnut St.Newton, MA 02460(617) 965-2215

Attorneys for Amici Curiae

December 3, 2007 * Counsel of Record

QUESTION PRESENTED

Whether a state forensic analyst’s laboratory reportprepared for use in a criminal prosecution is"testimonial" evidence subject to the demands of theConfrontation Clause as set forth in Crawford v.Washington, 541 U.S. 36 (2004).

(i)

iii

TABLE OF CONTENTSPage

QUESTION PRESENTED ..................................i

TABLE OF AUTHORITIES ................................iv

INTEREST OF AMICI CURIAE .........................1

SUMMARY OF ARGUMENT .............................2

REASONS FOR GRANTING THE PETITION..3

I. THE CONFRONTATION GUARANTEEENSURES THE FUNDAMENTAL WORK-INGS OF OUR ADVERSARIAL CRIMINALJUSTICE SYSTEM AND ITS TRUTH-SEEKING FUNCTION ....................................3

II.WHETHER STATE FORENSIC EXAMINEREVIDENCE IS TESTIMONIAL ANDSUBJECT TO TRADITIONAL CONFRON-TATION GUARANTEES IMPLICATES THEINTEGRITY OF OUR CRIMINAL JUSTICESYSTEM ...........................................................12

CONCLUSION ....................................................21

APPENDIX: SAMPLE CRIME LABORATORYFAILURES FROM AROUND THE COUN-TRY DURING THE ROBERTS ERA ............... la

iv

TABLE OF AUTHORITIES

CASES Page

Barefoot v. Estelle, 463 U.S. 880 (1983),superseded by statute, Antiterrorism andEffective Death Penalty Act, 28 U.S.C.§ 2253, as recognized in Slack v.McDaniel, 529 U.S. 473 (2000) .................10, 11

Commonwealth v. Verde, 827 N.E.2d 701(Mass. 2005) .............................................. 8

Crawford v. Washington, 541 U.S. 36(2004) ....................................................... passim

Daubert v. Merrell Dow Pharm., Inc., 509U.S. 579 (1993) ..........................................11

Davis v. Washington, 126 S. Ct. 2266(2006) ......................................................... 2

Delaware v. Van Arsdall, 475 U.S. 673(1986) .........................................................17

In Re Investigation of West Virginia StatePolice Crime Lab., Serology Div., 438S.E.2d 501 (W.Va. 1993) ...........................19

Kyles v. Whitley, 514 U.S. 419 (1995) ..........17Ohio v. Roberts, 448 U.S. 56 (1980),

abrogated by Crawford v. Washington,541 U.S. 36 (2004) .....................................3, 14

People v. Geier, 161 P.3d 104 (Cal. 2007),petition for cert. filed, No. 07-7770 (U.S.Nov. 14, 2007) ............................................ 8

People v. McClanahan, 729 N.E.2d 470 (Ill.2000) ..........................................................II

Ragland v. Kentucky, 191 S.W.3d 569 (Ky.2006) ...........................................................19

Smith v. Secretary of New Mexico Dep’t ofCorr., 50 F.3d 801 (10th Cir. 1995) ..........17

V

TABLE OF AUTHORITIES--CONTINUED

Page

Starrv. State, 604 S.E.2d 297 (Ga. Ct. App.2004) ..........................................................12

State v. Dedman, 102 P.3d 628 (N.M. 2004)8, 9State v. Forte, 629 S.E.2d 137 (N.C.), cert.

denied, 127 S. Ct. 557 (2006) .................... 8United States v. Davis, 14 M.J. 847

(A.C.M.R. 1982) .........................................17United States v. Ellis, 460 F.3d 920 (7th

Cir. 2006) ................................................... 8

CONSTITUTION

U.S. Const. amend. VI ..................................4

SCHOLARLY AUTHORITIES

Richard D. Friedman, Confrontation: TheSearch for Basic Principles, 86 Geo. L.J.1011 (1998) ................................................11

Paul C. Giannelli, Criminal Discovery,Scientific Evidence, and DNA, 44 Vand.L. Rev. 791 (1991) .....................................5, 6

Pamela R. Metzger, Cheating theConstitution, 59 Vand. L. Rev. 475(2006) ........................................................passim

Jennifer L. Mnookin, Expert Evidence andthe Confrontation Clause After Crawfordv. Washington, 15 J.L. & Pol’y (2007) ......10

Barry Scheck et al., Actual Innocence:When Justice Goes Wrong and How toMake It Right, 365 (2003) .........................14

OTHER AUTHORITIES

Sir William Blackstone, 3 Commentarieson the Laws of England (1765-69 ed.) ...... 6

vi

TABLE OF AUTHORITIES--CONTINUED

Page

Stephanie Hanes, Chemist Quit Crime LabJob After Hearing, Papers Show; SheAcknowledged Report Was "Worthless’In

1987, BALT. SUN, Mar. 19, 2003 ...................18, 19Maurice Possley, Crime Lab Disorganized,

Report Says Consultant Alleges MeagerSupervision, Inadequate Training, CHI.TRIB,, Jan. 15, 2001 ...................................14

Survey of D.C. Jurors conducted by thePublic Defender Service (Dec. 2003),http://www.pdsdc.org/SpecialLitigation/SLDSystemResources/Brady%20Poll%20Results,%20December%202003.pdf ............13

INTEREST OF AMICI CURIAE

Araici Curiae in support of Petitioner includeProfessors of Law with expertise in issues of forensicscience, criminal procedure, and constitutional law,the National Association of Criminal DefenseLawyers ("NACDL"), a non-profit association ofcriminal defense lawyers with a national membershipof more than 10,000 attorneys, the National Collegefor DUI Defense, a non-profit professionalorganization with approximately 850 members whichsponsors or co-sponsors at ]east four major continuingeducation programs annual]y specializing in issuesrelating to the defense of persons charged withdriving under the influence, the Committee for PublicCounsel Services, a statewide agency inMassachusetts responsible for the delivery of court-appointed criminal defense services to indigent adultsand children facing juvenile or criminal prosecutions,the Massachusetts Association of Criminal DefenseLawyers ("MACDL"), a non-profit association devotedto protecting the rights of the accused and to servingas a voice for the defense before state and federalcourts, and the Innocence Project, a leader in theexoneration of the wrongfully convicted, which, in thecourse of its work has exposed some of the forensicscience failures discussed in this brief. 1

1 No counsel for any party authored any part of this brief, andno person or entity, other than Amici, has made a monetarycontribution to the preparation or submission of this brief.Counsel of record for all parties received notice at least 10 daysprior to the due date of Amici’s intention to file this brief.Accompanying this brief is a letter of consent from Petitioner toits filing.

2

As scholars training future practitioners andpractitioners representing clients, Amici have a keeninterest in knowing whether and how the SixthAmendment’s Confrontation Clause applies to stateforensic examiner reports. 2

In the wake of Crawford v. Washington, 541 U.S. 36(2004), and Davis v. Washington, 126 S. Ct. 2266(2006), the most widespread subject of controversywith respect to the confrontation guarantee concernsthe constitutionality of allowing the prosecution tointroduce state forensic laboratory certifications inlieu of live testimony. This practice poses seriousproblems because it fundamentally alters thestructure of a criminal trial, hampers its truth-seeking function, and ultimately threatens theintegrity of our criminal justice system. To delayintervention will perpetuate confusion and facilitateinjustice in a substantial number of criminal casesnationwide.

SUMMARY OF ARGUMENT

Amici support Petitioner’s reasons for granting thepetition in full. Amici write separately to explain thepractical import of the right to confrontation inoperation, where the prosecution must affirmativelypresent live witness testimony to sustain its burdenof proof and the defense, absent a knowing andintelligent waiver, always has the opportunity toconfront and cross-examine that witness as it sees fit,if it sees fit. Specifically, Amici explain how the

2 Professors Metzger, Mnookin and Taslitz have published

extensively on topics related to these issues. NACDL hasappeared as amicus curiae in Crawford and also appeared withthe Public Defense Service for the District of Columbia asamicus curiae in Davis.

3

traditional construction of the confrontationguarantee allocates risks, creates incentives, andultimately promotes the truth-seeking function of acriminal trial. Statutes such as the one at issue inMassachusetts, which substitute out of courtcertification for live testimony on dispositive issues ofproof, cannot serve these purposes.

Amici also write to alert the Court to the systemicproblems with unreliable scientific data thatcoincided with the permissive practice under Ohio v.Roberts, 448 U.S. 56 (1980), abrogated by Crawford v.Washington, 541 U.S. 36 (2004), of admitting at trialunconfronted, purportedly reliable information. Thedemonstrated fallibility of state and federal forensicevidence, particularly when it is regularly exemptedfrom the rigors of adversarial testing, reinforces theimportance of the questions presented by Petitionerand militates in favor of this Court’s review.

REASONS FOR GRANTING THE PETITION

I. THE CONFRONTATION GUARANTEEENSURES THE FUNDAMENTAL WORK-INGS OF OUR ADVERSARIAL CRIMINALJUSTICE SYSTEM AND ITS TRUTH-SEEKING FUNCTION.

In Craw ford, this Court decoupled the right toconfrontation from hearsay rules and. held that adefendant’s right to confrontation was implicatedwhenever the prosecution sought to introduce"testimonial" evidence. But the Court did notexpressly resolve, because the issue was not squarelybefore it, how to determine if forensic evidence is"testimonial" such that the confrontation guaranteemust be satisfied.

4

Traditionally, the Confrontation Clause has beeninterpreted to require (absent a valid waiver3) thatthe prosecution "confront" a defendant "with" itswitnesses in the prosecution’s case-in-chief. U.S.Const. amend. VI. Under this construction of theconfrontation guarantee, there are always a variety offactors that will impede the admission of erroneous,incomplete, or fraudulent evidence. Indeed, thepurpose of the Confrontation Clause is to ensure anopportunity for the defendant to challenge thereliability of the prosecution’s evidence. See PamelaR. Metzger, Cheating the Constitution, 59 Vand. L.Rev. 475, 501 (2006).

The Confrontation Clause operates to provide thedefense with procedural devices to challenge thereliability of the evidence presented by theprosecution. Most fundamentally, the prosecutionmust sustain its burden of proof by presentinginherently revealing, live testimony. Thus, theprosecution, which presumably knows the strengthsand weaknesses of its evidence and its witnesses,cannot simply conduct a trial-by-affidavit, puttingout-of-court written statements before the fact-finderthat say no more and no less than the prosecutionwants them to say. Rather, the prosecution is obligedto put a live witness on the stand and bear the riskthat this witness may provide, even on directexamination, some information that is inconsistentwith prior statements or otherwise damaging to theprosecution’s case.

3 The traditional system does not require confrontation inevery case. It is always the prosecution’s prerogative to ask thedefense to stipulate to the admission of unconfronted out-of-court statements. However, if the defense declines such arequest, the prosecution retains the burden of production andthe defense the opportunity for cross-examination.

5

Moreover, under the traditional system, even whena defendant chooses not to cross-examine aprosecution witness, his right to confrontation stillprovides an opportunity for adversarial testing.Before the prosecution’s first witness takes the stand,the traditional system of confrontation and cross-examination gives prosecution witnesses prophylacticincentives to exercise greater care in the creation ormaintenance of prosecution evidence--to set up andfollow protocols that adhere to best practices, toensure all staff are properly trained, to properlydocument everything, and to strive in all ways tooperate in a manner that is beyond reproach--andthereby to minimize if not avoid entirely damagingimpeachment. See Metzger, 59 Vand. L. Rev. at 501.Similarly, the specter of cross-examination promptsgood prosecutors to rigorously vet their cases--tostrengthen those cases that do go to trial bythoroughly reviewing the evidence with theirwitnesses and ensuring that errors, omissions, andoversights will be addressed and remedied before thewitness testifies in open court, and to dismiss casesbased on flawed evidence before the trial ever begins.Without incentives to encourage scrutiny, theprosecution may unwittingly rely on conclusions thatare faulty or without foundation. The prosecutionwill be less inclined to probe the bases for a report’sconclusions--the methodology and protocols theexaminer used--because without a realisticprobability of confrontation, they will never becomean issue at trial.

Even a prudent prosecutor may have little ability tolearn more about the forensic examiner and hisactions in the case. The report itself is likely to becursory. Paul C. Giannelli, Criminal Discovery,Scientific Evidence, and DNA, 44 Vand. L. Rev. 791,

6

803 (1991) (lab reports often merely "summarize[ ]the results of an unidentified test conducted by ananonymous technician’ (internal quotation andcitation omitted)).4 Therefore, in addition to the lackof incentives, there may be a lack of information forwhich to question forensic certifications. Prosecutorsmay rely on such certifications because of theirbelieved reliability, but "[d]ispensing withconfrontation" because such reports are "obviouslyreliable is akin to dispensing with jury trial because adefendant is obviously guilty." Crawford, 541 U.S. at62.

Certainly, when the prosecution then calls itswitness to the stand, it fulfills a number of thecomponents of the confrontation guarantee, even ifthe defense chooses not to cross-examine the witness.These benefits include (1) "face-to-face" confrontationwith the defendant, id. at 57; (2) open presentation ofevidence "in the presence of all mankind," SirWilliam Blackstone, 3 Commentaries on the Laws ofEngland 373 (1765-69 ed.) and (3) the fact-finder’sfirst-hand "opportunity [to] observ[e] the quality, age,education, understanding, behavior, and inclinationsof the witness; in which points all persons mustappear alike, when their depositions are reduced towriting." Id. at 374. Additionally, the combination of

4 The defendant is afforded little opportunity to discover a

forensic report before trial. See also Giannelli, 44 Vand. L. Rev.at 810 n.121 (current rules requiring discovery of scientificreports generally do not specify the information that must beincluded; suggesting changes that require "(a) a description ofthe analytical techniques used in the test (b) thequantitative or qualitative results with any appropriatequalifications concerning the degree of certainty surroundingthem, and (c) an explanation of any necessary presumptions orinferences that were needed to reach the conclusions" (internalcitation omitted)).

7

being face-to-face with the accused and the possibilityof cross-examination will likely deter prosecutionwitnesses from over-statement and misleadingomissions when they are on the stand, especiallywhere they have been instructed that such tacticswill likely only backfire. Metzger, 59 Vand. L. Rev. at501 n.122 ("almost all state employees who may becalled to testify in criminal trials receive training" onhow to be a good witness).

The timing of the defendant’s confrontation right tocross-examination is a critical aspect of adversarialtesting, because it ensures that the defendant has agenuine and informed opportunity, to challenge theprosecution’s evidence as he sees fit, if he sees .fit.The defendant is not obligated to choose whether orhow to question the prosecution witness until afterthat witness has testified on direct and after theprosecution has presumably obtained from thewitness whateverinculpatory information thewitness possesses.At this point, the defense canmake an informeddecision to cross-examine theprosecution witness to expose holes, inconsistencies,biases, or untruths in the witness’ testimony.

Alternatively, the defense may decide to foregocross-examination--for any number of legitimatereasons. It may be that the witness (1) now underoath, failed to testify in a way that undermines thedefense, (2) actually testified poorly for theprosecution (and thus favorably for the defense), andmight only qualify his answers on cross-examination,or (c) in anticipation of cross-examination, was soscrupulous in his testimony that cross-examinationwould only emphasize the strength of theprosecution’s evidence.

And precisely because the traditional constructionof the confrontation right ensures a routine and

8

uniform opportunity for the defense to confront andcross-examine prosecution witnesses, it creates anincentive structure for the prosecution and itswitnesses to ensure at every stage of the prosecutionthat the evidence is accurate and reliable in order tolimit defense opportunities for impeachment. Thespectra of cross-examination thus provides anincentive for the prosecution to present a completewarts-and-all picture of its case to "draw the sting"from any attempt at impeachment--which in turnallows the fact-finder to render its verdict with morecomplete information.

In short, the very structure of the traditionalconception of the confrontation guarantee promotesthe truth-seeking function of a criminal trial in ouradversarial system. But a number of states,Massachusetts among them, and a federal circuit, donot consider forensic laboratory certifications to betestimonial, and thereby do not afford defendants anyconfrontation rights in connection with suchevidence.5 This eviscerates the protections of the

5 See, e.g., United States v. Ellis, 460 F.3d 920, 925 (7th Cir.2006) (noting that while circumstances of test might leadexaminer to believe her report might be used in prosecution,they do not "transform what is otherwise a nontestimonialbusiness record into a testimonial statement implicating theConfrontation Clause"); People v. Geier, 161 P.3d 104 (Cal.2007), ("[w]e conclude therefore that the DNA report was nottestimonial"), petition for cert. filed, No. 07-7770 (U.S. Nov. 14,2007); State v. Forte, 629 S.E.2d 137, 143 (N.C.) (laboratoryreport on DNA test not testimonial because such reports areroutine, neutral and do not bear witness against the defendant),cert. denied, 127 S. Ct. 557 (2006); Commonwealth v. Verde, 827N.E.2d 701, 705 (Mass. 2005) (holding that drug certificates"merely state the results of a well-recognized scientific testdetermining the composition and quantity of the substance" andare akin to public records); State v. Dedman, 102 P.3d 628, 636

9

Confrontation Clause, and makes the prosecutor theonly functional "gatekeeper" against the admission ofunreliable evidence.

As this Court explained in Crawford, while theConfrontation Clause’s ultimate goal may be toensure reliability of evidence, "it is a proceduralrather than a substantive guarantee.., reflect[ing] ajudgment, not only about the desirability of reliableevidence (a point on which there could be littledissent), but about how reliability can best bedetermined." Crawford, 541 U.S. at 61 (emphasisadded). Reliability cannot "best be determined" in anadversarial system by having the very party inopposition to the defendant--the prosecutor--responsible for the reliability of critical evidence.Statutes that permit forensic certification as primafacie evidence "virtually eliminate judicial inquiryinto the reliability of the general scientificmethodology or the particularscientific test."Metzger, 59 Vand. L. Rev. at 489.

Upon receiving a forensic certification and choosingwhether to present it as evidence, the prosecutorsubsumes the role of gatekeeper--deciding whetherthe evidence is reliable. When, as here, thecertification is presented as evidence of an essentialelement of the crime--drug type and weight--presentation of this evidence effectively "rewards thestate with a prima facie presumption that theprosecution has proven the truth of the report." Id.at 490. In effect, the prosecutor becomes the "referee"

(N.M. 2004) (holding blood alcohol report not testimonial andwithin public records exception because it was prepared bypublic health agency, rather than law enforcement, andtherefore was neither investigative nor prosecutorial).

10

in a game that he has an interest in winning, andthus has every incentive to use "shortcut[s] to theprocess of proof." Jennifer L. Mnookin, ExpertEvidence and the Confrontation Clause AfterCrawford v. Washington, 15 J.L. & Pol’y 791, 800(2007).

But by removing the defendant’s opportunity toconfront, before the fact-finder, the presentation offorensic evidence to prove an essential element of thecrime, the certification system robs the adversarialsystem of many of the incentives that promote thetruth-finding function of a criminal trial. Thedeclarant of an out-of-court statement in support ofthe prosecution does not have the same incentivesthat are present under the traditional construction ofthe confrontation guarantee to cautiously andconscientiously create and preserve evidence from theoutset in order to avoid the possibility of laterimpeachment. Rather, with statements submitted inwriting, information can easily be spun,misrepresented, omitted or fabricated preciselybecause no follow-up questioning is afforded. As onecommentator aptly observed, "[p]ractically speaking,these statutes mean that the fact that a substancefound on the defendant’s person was tested anddetermined to be cocaine of a specified quantitymight, at the prosecutor’s prerogative, be proven bywaving an official-looking paper that says so beforethe jury." Mnookin, 15 J.L. & Pol’y at 798.

Amici believe that use of the certification systemimpermissibly bypasses the confrontation right in amanner that is wholly inconsistent with ouradversarial system. See Barefoot v. Estelle, 463 U.S.880, 899 (1983) (our "adversary system" is designedto permit the factfinder to "uncover, recognize andtake due account" of the "shortcomings" of expert

11

evidence), superseded by statute, Antiterrorism andEffective Death Penalty Act, 28 U.S.C. § 2253, asrecognized in Slack v. McDaniel, 529 U.S. 473 (2000);see also Daubert v. Merrell Dow Pharm., Inc., 509U.S. 579, 596 (1993) (endorsing "[v]igorous cross-examination" as a means of attacking scientificevidence). Amici urge the Court to grant review inthis case and to declare that the traditional method offulfilling the confrontation guarantee is the onlyconstitutionally acceptable method.

This issue goes well beyond the unconfrontedadmission of state forensic examiner reports. It is thenature of our adversarial system that the prosecutionwill constantly push to limit its confrontationobligations. Thus, the recognition by a number ofstates of any rule for state forensic examiners morelenient than one requiring the prosecution to presentlive testimony subject to cross-examination by thedefense creates a dangerous slippery slope. If it ispermissible to bypass the Confrontation Clause bylabeling forensic evidence certifications non-testimonial, then it would presumably no more offendthe Constitution to allow the prosecution to prove itsentire case by affidavit, no matter the precise type ofout-of-court statement at issue. See People v.McClanahan, 729 N.E. 2d 470, 477 (Ill. 2000)(acknowledging this danger); see also, e.g., Starr v.State, 604 S.E.2d 297, 299 (Ga. Ct. App. 2004)(permitting introduction of alleged victim’svideotaped statement in lieu of live testimony wheredefense could have called her as a witness). In otherwords, the certification rule threatens not only toundo the importance of the Crawford and Davisdecisions, which reaffirmed importance of livetestimony, in court, subject to cross-examination, butalso to "dramatic[ally] change.., the way we conduct

From thepredictable;widespreadcountry.

12

criminal trials." Richard D. Friedman,Confrontation: The Search for Basic Principles, 86Geo. L. J. 1011, 1038 (1998). With such basicprinciples at stake, the Court’s correctiveintervention is urgently needed.

II. WHETHER STATE FORENSIC EXAMINEREVIDENCE IS TESTIMONIAL ANDSUBJECT TO TRADITIONAL CONFRON-TATION GUARANTEES IMPLICATES THEINTEGRITY OF OUR CRIMINAL JUSTICESYSTEM.

We need only look back to recent history for proofthat the integrity of our criminal justice system is atstake. During the Roberts era, a defendant’s right toconfrontation and cross-examination of a prosecutionwitness was downgraded from a categoricalconstitutional guarantee to a highly arbitrary judicialdetermination of evidentiary reliability. At the sametime, some states (erroneously) concluded that themechanism for fulfilling the confrontation obligation,in the more limited instances that obligation wasrecognized under Roberts, could be altered in such away as to further constrict the scope of the right. Inparticular, some states endorsed the use ofpurportedly reliable forensic examiner reports in lieuof live testimony so long as a defendant had anopportunity to subpoena the examiner to testify.

vantage of hindsight, the result wasthe Roberts era coincided with

crime laboratory failures around the

Lest history repeat itself, this Court should usePetitioner’s case as a vehicle to expressly reject thepermissive admission of unconfronted forensicevidence and affirm that the traditional strictures ofthe confrontation right regulate the admission of such

13

evidence. The Court’s constitutional holding inCraw ford means little in practice if States can avoidthat holding by simply categorizing vital prosecutionevidence used to prove elements as "non-testimonial."Now that the Roberts regime has been rejected,reliance on a forensic certification in lieu of livetestimony will be the most attractive option forbypassing the rigors of its traditional confrontationobligations. Moreover, state legislatures have theincentives of increased conviction rates and decreasedcosts to create systems like the one used inMassachusetts, that employ certification as proof ofprima facie evidence of an element of a crime.

The ability to confront and probe scientific evidenceis critical because it is often the most powerfulevidence in the prosecution’s arsenal, and isconsidered to be extremely reliable and persuasive byjuries. In a survey of potential jurors in the Districtof Columbia, respondents said that, on a scale of oneto ten, fingerprint and DNA evidence rated 8.3 and 9respectively for general persuasiveness, and 8.6 and 9for general reliability; likewise 94% of those polleddeemed "important" laboratory and scientific testsperformed by the government that provided favorableevidence to the defense, and 91% of those polled saidthat they would be concerned if the prosecutionwithheld this information from the defense. SeeSurvey of D.C. Jurors conducted by the PublicDefender Service in December 2003, questions 3, 6,17, 20, 57, & 71.8

This reliance is potentially dangerous because thissort of evidence is no more immune to human error or

Available at http://www.pdsdc.org/Special Litigation/SLDSystemResources/Brady%20Poll%20Results,%20December%202003.pdf.

14

bias than any other type of evidence. Thus, in thereview of the first 74 DNA exoneration casesanalyzed by the Innocence Project, one third involved"tainted or fraudulent science." Barry Scheck et al.,Actual Innocence: When Justice Goes Wrong and Howto Make It Right, 365 (2003); see also MauricePossley, Crime Lab Disorganized, Report SaysConsultant Alleges Meager Supervision, InadequateTraining, CHI. TRIB., Jan. 15, 2001, at 1 (examinationof first 200 exoneration cases since 1986 revealedthan "more than a quarter involved faulty crime labwork or testimony"). Indeed, our Roberts-era historysuggests that forensic evidence, just like any othertype of evidence, is more susceptible to human errorand misrepresentation when it is shielded fromconfrontation.

During the Roberts era, the confrontationguarantee turned on judicial estimations ofevidentiary reliability and in-court confrontation wasgenerally devalued. See Roberts, 448 U.S. 56. At thesame time, the practice of allowing the prosecution tointroduce a state forensic examiner’s report againstthe accused as a substitute for the forensicexaminer’s live testimony gained currency andproliferated rapidly. Conclusory declarations aboutthe results of a "wide range" of forensic tests--including drug tests, "DNA tests, microscopic hairanalyses, fingerprint identifications, coroners’reports, [and] ballistics tests," were exempted fromthe strictures of the Confrontation Clause. Metzger,59 Vand. L. Rev. at 479; id. at 479 n.12.Demonstrating the influence of Roberts, the oft-citedjustification for the permissive use of theseunconfronted forensic laboratory reports was theirinherent reliability. Id. at 480 n.15.

15

Ironically, the Roberts-era attitude thatconfrontation was discretionary and dispensable for"reliable" evidence can only have created anatmosphere which facilitated the creation andadmission of unreliable evidence at trial preciselybecause the work of state forensic examiners waslargely insulated from meaningful scrutiny. It wouldbe an overstatement to say that confrontation is thecure-all for faulty forensic evidence; there will alwaysbe some people who are willing to take the stand andaffirmatively lie or withhold information that mightexpose their testimony to be falsely premised orunreliable. But in-court confrontation works inconcrete ways to deter the creation and use in courtof sloppy, inaccurate, or falsified forensic work. SeePoint I supra; see also Crawford, 541 U.S. at 61(confrontation identified as the proceduralmechanism through which "reliability can best bedetermined") (emphasis added).

And, in fact, the practice of insulating the work ofstate forensic examiners from the crucible ofadversarial testing coincided with a disconcertingnumber of systemic laboratory errors and failuresaround the country. Flaws with the administrationand operation of state forensic laboratories and theevidence they generated during this time have beenuncovered in virtually every state or locality in thecountry, as well as in the federal system, and arewell-documented in Baltimore, Boston, Chicago,Cleveland, Los Angeles, Montana, Oklahoma City,Texas (Houston, Fort Worth, and West Texas),Virginia, Washington, and West Virginia. Seegenerally Appendix of Sample Crime LaboratoryFailures from Around the Country During theRoberts Era ("App. of Crime Lab Failures"). In thesejurisdictions, the same types of human error that can

16undermine the reliability of any other type ofevidence~verwork, inattention, bias, lack oftraining, outright dishonesty-compromised thereliability and probity of laboratory tests and thereports of those test results. Id.

A guarantee of routine in-court confrontation mighthave averted problems like these. Confrontationmight have prompted the crime laboratories in thesejurisdictions to act with greater care from the outset.Part of the problem is that many of the lab failuresdocumented above would not be discernable fromstate forensic examiner reports used by theprosecution. As noted above, and as was the casebelow, see Point I supra, these reports oftenincorporate only the examiner’s bare conclusionswithout providing any information about the testsperformed, the manner in which tests wereconducted, laboratory protocols, departure from theseprotocols and the reasons therefore, or error rates.Thus the act of writing the report does not requireself-scrutiny by the examiner, and hence provideslittle incentive either to conduct tests properly andcarefully or to report results accurately. Theexpectation of in-court confrontation provides theseincentives, however, and thus can reduce thesusceptibility of this evidence to error.

If it did not preempt them, a guarantee of routineconfrontation could have also prompted or hastenedthe in-court exposure of these systemic problems. Thetypes of errors and problems that have beendiscovered--disregard for protocols in conducting labtests, lack of meaningful protocols, falsification ofcredentials by forensic examiners, fabrication of testresults, utilization of junk science techniques or otherflawed forensic methodology, pro-government bias,misreporting of actual test results, see App. of Crime

17

Lab Failures--are the very types of mistakes andmisconduct that the crucible of adversarial testing isgenerally designed to deter and reveal. A forensicexaminer may think twice about makingunsupported, inaccurate or false statements whentestifying in open court. In addition, defense counselhas the opportunity with the examiner on the standto contrast inadequate protocols and methodologieswith best practices, expose error rates and bias,question training, and reveal all the inconsistenciesand implausibilities inherent in testimony that lacksadequate foundation or contains actual falsehoods.See, e.g., Kyles v. Whitley, 514 U.S. 419, 447 (1995)(through cross-examination defense counsel couldhave "laid the foundation for a vigorous argumentthat the police had been guilty of negligence");7

Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986)(right to confrontation encompasses right to cross-examine prosecution witnesses for bias); UnitedStates v. Davis, 14 M.J. 847, 848 n.3 (A.C.M.R. 1982)(cross-examination of a "chemist may reveal thepossibility of laboratory error due to thecarelessness").

Without in-court confrontation, there is littleassurance that defense counsel will be able to probeany of these matters effectively, if at all. Indeed, it is

7 The prosecution is obliged to turn over Brady information todefense counsel for this precise purpose. Kyles, 514 U.S. at 446n.15 (When "the probative force of evidence depends on thecircumstances in which it was obtained and those circumstancesraise a possibility of fraud, indications of conscientious policework will enhance probative force and slovenly work willdiminish it."); Smith v. Secretary of New Mexico Dep’t of Corr.,50 F.3d 801,830 (10th Cir. 1995) (Brady obligation encompassesinformation "would also have been useful in discredit[ing] thecaliber of the investigation") (internal citation and quotationomitted) (alteration in original).

18

telling that, although the crime laboratory errors andproblems documented above occurred almostexclusively in criminal prosecutions, they wereuncovered largely outside of the criminal trialprocess. Often long after the fact, the unreliability oflaboratory test results and reports relied on incriminal trials was brought to light by media exposes,civil suits and post-conviction proceedings thatafforded meaningful discovery, whistleblowers, andinnocence commissions examining the causes ofwrongful convictions. See App. of Crime LabFailures.

Even in the smaller subset of cases under Robertswhere it was deemed necessary, in-courtconfrontation revealed laboratory errors andproblems, thus demonstrating the very efficacy ofadversarial testing to "beat[ ] and bolt[ ] out theTruth." Crawford, 541 U.S. at 62 (internal citationand quotation omitted). The cross-examination of apolice chemist about her testing of blood evidence in aBaltimore County, Maryland case is illustrative. Thechemist acknowledged that "she did not understandthe science behind many of the tests that sheperformed," and "she did not perform a number ofstandard tests on the blood samples in the case."Stephanie Hanes, Chemist Quit Crime Lab Job AfterHearing, Papers Show; She Acknowledged ReportWas ’Worthless’In 1987, BALT. SUN, Mar. 19, 2003, atB1. She also "agreed that other tests she hadcompleted were useless" and "acknowledged that shehad failed to record the results of some testing stepsneeded to ensure accuracy in blood typing." Id.Finally, she acknowledged at the conclusion of crossthat, "as a result of all this" "there [wa]s not onefinding, one result in this report that [wa]s usable"and that her "entire report . . . [her] entire analysis

19

[wa]s absolutely worthless." /d.8 Cross-examinationhad similarly beneficial results in Ragland v.Kentucky, 191 S.W.3d 569, 581 (Ky. 2006), where anFBI bullet lead composition analyst was caught in alie by defense counsel on cross-examination,confronted with her earlier statements, andeventually forced to admit that her prior statementswere false. Later, the analyst admitted, "lilt was onlyafter the cross-examination at trial that I knew I hadto address the consequences of my actions." Id.(emphasis added).

The errors and failures of forensic evidence detailedabove expose the bankruptcy of the argument thatconfrontation is unnecessary in the area of forensicscience because of its inherent reliability. They alsodemonstrate how concerns about the "cost" ofpresenting live-witness testimony by forensicexaminers are, at best, penny-wise and pound-foolish.Time away from the laboratory and transportation tothe courthouse are not the only costs implicated.There are also real costs to a suspension ofconfrontation: wrongful convictions, attendant civilsuits, loss of public trust, and, in some cases, thefailure to apprehend the true perpetrator. See In ReInvestigation of West Virginia State Police CrimeLab., Serology Div., 438 S.E.2d 501, 508 (W.Va. 1993)(systemic forensic failures "stain our judicial systemand mock the ideal of justice under [the] law"). Therecent and extensive history of laboratory errors andfailures demonstrates why it is critical for this Court

s This chemist also tested blood evidence in DNA-exoneree

Bernard Webster’s case, but the prosecutor opted not to call heras a witness because he "didn’t want to complicate" the case byallowing the defense to conduct what he anticipated would havebeen "a nasty cross-examination." Hanes, Chemist Quit CrimeLab, supra.

20to determine post-Craw ford, whether state forensicexaminer evidence is testimonial and thus subject tothe traditional strictures of the confrontation clause,a question this Court should expressly answer in theaffirmative.

21

CONCLUSION

For all the reasons set forth abovel the Petitionshould be granted.

Respectfully submitted,

TIMOTHY P. O’TOOLEMILLER & CHEVALIER655 Fifteenth St., N.W.Washington, D.C. 20004(202) 628-1200

JEFFREY T. GREEN*SARAH O’ROURKE SCHRUPNORTHWESTERN UNIVERSITYSUPREME COURT PRACTICUM357 East Chicago AvenueChicago, IL 60611(312) 503-0063

BROWNLOW M. SPEERCOMMITTEE FOR PUBLICCOUNSEL SERVICES,PUBLIC DEFENDERDIVISION44 Bromfield St.Boston, MA 02108(617) 482-6212

LEONARD R. STAMMW. TROY MCKINNEYNATIONAL COLLEGE FORDUI DEFENSE445 S. Decatur St.Montgomery, AL 36104(334) 264-1950

JENNIFER L. MNOOKINVICE DEAN AND

PROFESSOR OF LAWUCLA SCHOOL OF LAWBox 951476Los Angeles, CA90095-1476(310) 825-4841

PAMELA R. METZGERASSOCIATE PROFESSOR OFLAW 8~ DIRECTOR, CRIMINALLAW CLINIC

TULANE UNIVERSITY LAWSCHOOL

Weinmann Hall6329 Freret St.New Orleans, LA 70118(504) 865-5759

22

ANDREW E. TASLITZPROFESSOR OF LAWHOWARD UNIVERSITYSCHOOL OF LAW2900 Van Ness St., N.W.Washington, DC 20008(202) 806-8029

BARRY C. SCHECKPETER J. NEUFELDDAVID LOFTISINNOCENCE PROJECT, INC.100 Fifth Avenue, 3rd FloorNew York, NY 10011(212) 364-5340

RANDY S. CHAPMANMASSACHUSETTS ASS’NOF CRIMINAL DEFENSELAWYERS

Box 473, 321 Walnut St.Newton, MA 02460(617) 965-2215

Attorneys for Amici Curiae

December 3, 2007 * Counsel of Record