In Melendez-Diaz, the Supreme Court held that the information in laboratory technician reports can only be introduced against a criminal defendant if the person has had the opportunity to cross-examine the lab tech who did the testing.
This has created an outcry among prosecutors and others. (See previous coverage on the topic on this blog here and here). Admittedly, the decision is a change in the way business has been done in our criminal courts. Such a change is bound to be met with resistance, because it will create more work for the government to convict people.
I received an email from a friend of mine about the effect of Melendez-Diaz on the war on drugs. Drug prosecutions work only because they are able to be done in volume. If the defendants refuse to plead, and prosecutors have to call lab techs, they can quickly overrun the system such that drug prosecutions will quickly become rare.
One writer argues that Melendez-Diaz is a bad idea because,
The proliferation of drug arrests would cripple our state toxicology laboratory if a witness were required in every drug trial. In nearly all instances, the testing is reliable so requiring the toxicologist to appear is no more than a formality. It’s rare where a legitimate challenge can be raised to the reliability of a particular drug screening.
I think this is wrong; Melendez-Diaz is good policy for two reasons. I’ll explain what they are, after the jump.
If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.
First, the rumors of the death of the drug prosecution are greatly exaggerated. For better or worse. criminal defendants, and criminal defense lawyers, do not behave like union members being forced to work under an unfair contract. Criminal defendants do not, and generally will not, coordinate a systematic strategy of refusing to plead so that they can overwhelm the state.
Sure, there will be some lawyers who insist on taking cases to trial where prosecutors are unwilling to offer a reasonable plea (though I can see a pretty easy fix for that). Defense lawyers will be watching closely how the government in each jurisdiction handles getting their witnesses to court.
I practice in federal court. Federal judges are notorious for bending the court’s schedule to accommodate government witnesses. And if the prevailing judicial winds are that they think Melendez-Diaz is a technicality to be worked around, they’ll be more willing to be accommodating. Of course, they won’t be endlessly flexible, and it will vary significantly by judge.
In most jurisdictions, I don’t think there will be a great rush of defendant’s to trial, but, rather, a great pressure on prosecutors to cut much better deals to make taking a plea worth not betting that the state can’t call it’s witnesses.
So, to summarize point one – the sky is not falling.
Second, cross examining lab technicians matters. It is not a “mere technicality.” These people make mistakes. When they make mistakes, people go to prison for the wrong thing. Their lives are destroyed; their children grow up without a parent. Having a check on what the lab techs do will mean that they screw up less, and that fewer innocent people go to prison. Both are really good things to have in a criminal justice system.
That said, maybe I’m wrong. So, what I encourage any reader to do is to email me any instance of a lab tech being crossed well. Any error being pointed out, any failure to maintain a chain of custody, or do the testing properly.
Melendez-Diaz is going to mean a lot more lab techs get crossed a lot more aggressively. If something’s working, please share it.