On Monday, the U.S. Supreme Court revisits an issue it appeared to resolve just months ago: whether the prosecution in criminal cases has a constitutional duty to produce crime lab analysts to testify about their findings.
Hoping to reverse a 7-month-old decision, prosecutors are pinning their hopes on the newest justice, Sonia Sotomayor, herself a former Manhattan prosecutor.
Until last year, prosecutors in all but 10 states could introduce a notarized affidavit from crime lab experts, attesting to their findings with respect to critical evidence. This document was sufficient to state that, for example, the white powder found on a defendant was indeed cocaine, or that a defendant's DNA matched that found on a rape or murder victim. Forensic analysts only appeared if subpoenaed by the defense.
But in June, the U.S. Supreme Court ruled by a 5-to-4 vote that the clause of the Constitution that requires the accused to be confronted by the witnesses against him puts the burden on the state to produce not just paper certificates, but live forensic witnesses, who can be cross-examined. Without these live forensic witnesses, the court decided, forensic evidence cannot be introduced.
The opinion, written by conservative justice Antonin Scalia, did provide something of an out. It said prosecutors could notify defense lawyers before trial of the intent to introduce an affidavit so that the defense could then demand live witnesses. If the defense decides not to demand a live witness, a written affidavit is then considered acceptable.
Nevertheless, four justices were outraged by the decision, predicting that it would result in a windfall for the defense, huge expense for the states and the release of guilty defendants. The four dissenting justices, led by Justice Anthony Kennedy, expressed that they wanted the decision reversed.
Today's case offers that opportunity, testing two Virginia drug convictions based on lab analyst affidavits.
Only one thing has changed since June. One member of that five-justice majority — David Souter — has retired, and been replaced by Sotomayor. Prosecutors hope that having been a criminal prosecutor herself in New York, Sotomayor will be sympathetic to their cause.
Some 24 states are asking the court to reverse itself as well, citing backlogs, costs and other problems they say the decision has created.