On Monday, the U.S. Supreme Court revisited an issue it had appeared to resolve just months ago dealing with crime lab test results and when crime lab analysts must testify in court. In two cases from Virginia, the court flirted with undermining or reversing that ruling.
Until June, the vast majority of state and local prosecutors routinely submitted notarized reports from crime lab analysts for evidence at trial. The burden was on the defense to subpoena the state's forensic analysts if it wanted to cross-examine them. But less than seven months ago, the Supreme Court, by a 5-to-4 vote, said that procedure is unconstitutional and that the burden is on the prosecution to produce its witnesses to testify live unless the defense agrees to something less. The court's decision was written by conservative Justice Antonin Scalia, over the strong dissent of four justices.
Since June, only one thing has changed: One member of the five-justice majority — David Souter — has retired, replaced by Sonia Sotomayor, who served for years as a prosecutor in Manhattan.
So all eyes were on Sotomayor on Monday as the court considered two drug convictions based on affidavits from crime lab analysts as to what the substance was that was found on or near the defendants. Sotomayor did not disappoint, asking lots of questions. But at the end of the day, she was noncommittal.
Virginia Law At Issue
Virginia changed its law in August to comply with the Supreme Court's June decision. The convictions at issue, however, were under the state's old law, which allowed for affidavit testimony without the consent of the defense.
On the steps of the Supreme Court on Monday, both sides saw the issue in dire terms. The state's solicitor general, Steve McCullough, said that since enactment of the new law some five months ago, demands for live testimony have increased tenfold and so has defense lawyer gamesmanship.
"What we've seen again and again is that the analyst shows up, and the defense lawyer says, 'Oh, I'm ready to stipulate now,' " McCullough says, meaning that the defense agrees to admit the forensic report without live testimony. The crime lab analyst who has come to court does not have to testify.
Countering that was defense lawyer Richard Friedman, who contended that if Virginia's old statute is upheld, it would mean "the sky is the limit" — that any witness could avoid live testimony.
He pointed to child abuse cases, for instance, where the prosecution has taken a written or videotaped statement from a child and introduces it, knowing that if the defense calls the child for cross-examination, it will likely cost the defense dearly.
High Costs Of Testimony Exaggerated?
Justice Ruth Bader Ginsburg confronted Friedman with the expense question raised by many states. Would it be all right, she asked, if in order to save money, crime lab analysts testified via video conference from the lab?
Friedman noted that some states are experimenting with that, but he contended that, in fact, dire predictions of high costs are exaggerated.
"How can you say that," asked Justice Samuel Alito, "when we have a brief from 26 states and the District of Columbia saying exactly the opposite?"
McCullough told the justices that the confrontation clause of the Constitution stems from the Colonists' fear of anonymous accusers and no-show witnesses, and that the old Virginia law doesn't permit it either.
But Scalia wasn't buying that argument, noting that under the old Virginia law, once a lab report is introduced, it may stay in evidence even if the lab analyst is a no-show later for cross-examination.
Supporting Virginia on Monday, the federal government's lawyer, Leondra Kruger, said that as long as the analyst is available, the prosecution has satisfied its burden at trial.
Scalia asked whether that would apply to other witnesses as well?
Yes, replied Kruger.
If you have an eyewitness, asked Justice John Paul Stevens, could the prosecution follow the same procedure?
Again the answer was yes, as long as the defense has the opportunity to cross-examine if it wants to.
Sotomayor for the first time appeared incredulous: "Are you saying that a trial by affidavit is OK" under the Constitution?
Essentially, yes was the answer. And it didn't seem to sit very well.