When Boston police officers arrested and charged Luis Melendez-Diaz with cocaine trafficking in 2001, it’s doubtful Melendez-Diaz was thinking about how he could make pathologists’ lives more complicated.
But eight years later, because of a June ruling by the U.S. Supreme Court in Luis Melendez-Diaz v. Massachusetts, he may have done exactly that. For, to the surprise of many, the high court ruled that a key piece of evidence was inadmissible in Melendez-Diaz’s jury trial: the affidavit attesting that the substance he was caught with was cocaine. The court reversed Melendez-Diaz’s conviction because he did not have the opportunity to cross-examine the analyst who prepared the affidavit.
At least conceptually, the decision marks a change in how laboratory results are regarded in the judicial system, says Jack Bierig, a partner with the Chicago law firm Sidley Austin LLP. “Until this ruling, routine laboratory results were generally given a pass in terms of admissibility into evidence. Except in a few states, courts tended to admit those results into evidence without question. Now, there is clearly a constitutional right on the part of a defendant in a criminal case to confront the forensic analyst. Before, in most states, there was no such right.”
As a practical matter, however, will analysts, including pathologists, end up having to testify and be cross-examined more often? “We don’t really know right now,” Bierig says. He predicts that in certain cases involving lab testing, the ruling will have more impact than in other cases: “It will depend on a number of factors, including the novelty and complexity of the test, whether there is any history of problems with the lab, and the zealousness of defense counsel.”
Melendez-Diaz was one of three men arrested after a stakeout targeting a Boston K-Mart employee who was suspected of dealing drugs. Police seized several plastic bags containing a white substance that the men were accused of hiding in the police cruiser after the arrest. The substance was submitted to a state laboratory for chemical analysis and found to be cocaine.
At trial, the prosecution placed the bags into evidence along with three “certificates of analysis” showing the results of the forensic analyses of the contents. The analysts signing the certificates were employed by the State Laboratory Institute of the Massachusetts Department of Public Health.
Melendez-Diaz objected to admission of the certificates, asserting that the Confrontation Clause of the Sixth Amendment of the Constitution, based on a key 2004 Supreme Court decision, Crawford v. Washington, required the analysts to testify in person. Overruling his objection, the trial court admitted the certificates as “prima facie evidence of the composition, quality, and the net weight of the narcotic ... analyzed.”
After the jury found Melendez-Diaz guilty, the Appellate Court of Massachusetts turned down his appeal, and the Supreme Judicial Court refused to review his case. The U.S. Supreme Court agreed to review the case in 2008.
On June 25 of this year, the high court overturned Melendez-Diaz’s conviction, holding that the admission of the certificates violated his right to confront the witnesses against him. The court’s majority said the certificates belong squarely within the “core class of testimonial statements” covered by the Confrontation Clause. Consequently, Melendez-Diaz will be entitled to a new trial.
The argument that forensic analysts should not be subject to confrontation because their analysis results from “neutral scientific testing” is little more than an invitation to return to the old standard that evidence “with particularized guarantees of trustworthiness” was admissible without confrontation, the court said. But it noted that it had overruled that standard with the Crawford v. Washington ruling, and reversed and remanded the case to the lower court.
The majority opinion was signed by justices Antonin Scalia, John Paul Stevens, David Souter, Clarence Thomas, and Ruth Ginsburg, while a dissenting opinion was filed by justices Anthony Kennedy, John Roberts, Stephen Breyer, and Samuel Alito. The dissenters charged that the ruling “sweeps away” a rule about admission of scientific evidence—that scientific analysis could be introuced into evidence without testimony from the analyst who produced it. That rule has been long accepted in at least 35 states and six federal appeals courts, they said.
Asked about the somewhat unusual breakout of justices in the majority versus the dissenters, Bierig says, “I would not have predicted this division. But I can explain it.” While people tend to think that more conservative justices tend to be pro-prosecution and against the accused, justice Antonin Scalia (who wrote the opinion) and justice Clarence Thomas are “originalists,” or “textualists,” he says. “If they see a textual reference in the Constitution, they try to apply the text in the manner that they believe that the framers intended.
“Here, there is a textual basis for the ruling—the so-called ‘Confrontation Clause.’ Justices Scalia and Thomas, as well as the other members of the majority, read that clause as expressing the views of the drafters of the Constitution that if a piece of evidence is to be used against a defendant in a criminal case, then that defendant had the right to confront the individual who has brought forth that evidence.”
The Melendez-Diaz ruling should affect primarily forensic pathologists, Bierig says. “If a state hires a hospital-based pathologist to do testing that will be used in a criminal case, then the pathologist needs to know that he or she could be called upon to testify in court regarding the laboratory findings. But I want to emphasize that this ruling only applies for criminal cases. The pivotal Confrontation Clause reads: ‘In all criminal prosecutions the accused shall enjoy the right to be confronted with witnesses against him,’” he quotes, stressing the word “criminal.”
For example, “Let’s say an employee loses his or her job because drug testing reveals that employee was using a controlled substance. And let’s assume further that the employee sues for wrongful termination. The Melendez-Diaz decision wouldn’t apply because that wouldn’t be a criminal case.” So, a lab that is doing toxicology testing for employers is far less likely to be required to testify in court than would a lab that performs tests for the criminal justice system. Forensic pathologists are already used to handling crossexamination, Bierig notes. But he thinks some types of forensic analysis are more likely to be challenged as a result of the ruling. “With a qualitative result on a simple analyte such as cocaine, I would be surprised if any forensic analyst would ever get that wrong.” But, he says, with quantitative results that are borderline—for example, blood alcohol levels that barely exceed the threshold for intoxication—defense counsel might want to confront the analyst. “Counsel might ask questions along the following lines: ‘Isn’t it possible if you did this test a number of times on different machines, you might have gotten a different result?’”
With cutting-edge procedures such as genomic testing or with tests such as hair analysis, a defense lawyer might also be more likely to cross-examine the analyst and cast doubt, he says.
However, it’s not only the pathologist or toxicologist who needs to be prepared to be a witness. In any criminal case, potentially everybody at every step along the way is subject to subpoena, says CAP Forensic Pathology Committee advisor Gregory J. Davis, MD, of the University of Kentucky Hospital and former associate chief medical examiner of the state of Kentucky.
“It depends on what the defense attorney wants to do. When I take a bullet out of a head at autopsy and give it to a detective, who gives it to a firearms technician, any one of us could be subpoenaed, not only as expert witnesses but also as fact witnesses to talk about chain of custody. In a DUI homicide, certainly the defense attorney can subpoena the lab tech who did the blood alcohol analysis and can cross-examine him or her on the technique used.”
Michael A. Graham, MD, vice chair of the CAP Forensic Pathology Committee and co-director of the St. Louis University Health Sciences Center Division of Forensic and Environmental Pathology, says, based on his experience in Missouri, laboratory results in courtroom settings are almost universally regarded as accurate. He has found cross-examination to be “pretty straightforward”—at least until now. “Most of the time the other side, whether it’s a civil or criminal case, is more interested in finding out what parts of my opinion can help their case, as opposed to trying to destroy my testimony because it doesn’t help their case.”
The defense generally accepts the laboratory results in most forensic cases, agrees Stephen J. Cina, MD, chair of the CAP Forensic Pathology Committee and deputy chief medical examiner for Broward County in Fort Lauderdale, Fla. “In my experience, with the cases I’ve testified on where toxicology is a significant finding, I’d say 95 percent of the time they’re fine with me as the forensic pathologist who’s put the whole case together testifying on the toxicology findings. But there have been and will be occasions where they have asked a toxicology expert in to attempt to refute my opinion.”
Dr. Graham notes that the accuracy of the laboratory test is usually not the point of contention. Instead, in most cases, the significance of the substance is more often at issue. Testing accuracy can be an issue, however, especially in DUI cases.
An increase in the number of laboratory staff who are called to testify would be worrisome to most labs for more practical reasons, Dr. Davis says. “Every lab is short-staffed. They have more work with less people and less time. One reason why this has a lot of people very upset is if you have five lab technologists in your county working as hard as they can and barely keeping up, and a subpoena comes in, it means they’re going to spend their whole day in a nice outfit” waiting outside a courtroom.
That would definitely be a concern in Florida as well, says Dr. Cina, who points out that a careful reading of the opinion leaves the impression that the testimony of a pathologist or lab director would usually not be enough to cover the entire lab staff. “The opinion doesn’t define ‘analyst’ specifically, but it seems that anyone in the chain of custody or handling the test machinery could theoretically be pulled in on a criminal case. And that’s what’s happening down here [in Broward County] with DUI tests.” It is not unusual for the Broward County laboratory to be short-staffed when simultaneous subpoenas are issued to multiple toxicology staff members for a single DUI case.
“Our lab operations sometimes come to a crawl when the legal system hijacks our staff,” Dr. Cina says. “Many urine or blood samples that end up in a DUI file pull at least two, and as many as four, people out of the lab to sit and wait outside of a courtroom, and the lab comes to a virtual standstill. It’s really inconvenienced us and delayed our turnaround time on our forensic casework.” The Melendez-Diaz case could pull even more analysts out of the laboratory, he says.
On top of that, some jurisdictions don’t have a local toxicology lab for analysis of autopsy specimens or DUI casework, Dr. Cina points out. “They may send specimens out to national labs like NMS or LabCorp, but let’s say the national lab is in Virginia or Cleveland and you’ve got a case in Florida. If the defendant decides to challenge results from that lab, does that mean the state is going to have to pay to fly down multiple analysts from those labs? It seems to me that would be a risk.” With state attorneys already having budgetary issues, there could be more pressure to reach plea agreements, he predicts. “And sometimes there are more pleas arranged than there should be.”
One defense strategy, in fact, might be to bring in a string of several analysts who handled the sample, vigorously cross-examine these analysts who may not be accustomed to testifying, then wrap up by asking, “‘So you have four people handling these specimens. And you don’t think that confusion or a swap or an error could have been made anywhere along the line, when all of these people have been touching the specimen?’ You don’t even need to discuss the results on your particular case; you just have to tear apart the entire process and look for one potential weak link,” Dr. Cina says. That’s how he’d approach it were he a defense attorney: “I might imply that the lab may well have gotten things right, but the system is in such disarray it shot holes in their work.” This strategy met with some success, he says, in the first O.J. Simpson trial.
In Bierig’s opinion, it’s unlikely that a forensic analyst in every case will be called for cross-examination. “Although prosecutors and forensic pathologists may not like this ruling,” he says, “forensic analysts are already subject to cross-examination in several states. The defense team does not avail itself of the right to cross-examine if it believes that the result of the cross-examination will simply be to confirm the validity of the lab findings.”
In addition, there are ways that states can minimize the impact of the court’s decision, Bierig suggests. “For instance, they can adopt procedural mechanisms to limit the impact of the ruling. They can, for example, require that a defendant demand the right to cross-examine within 15 days after receiving notice that forensic testimony is going to be used.” More clarification is likely to emerge next year, he says, when the high court will rule in a similar case.
Even though the Supreme Court ruling on the Melendez-Diaz case will primarily affect forensic pathologists and analysts performing criminal casework, there may be bigger issues for the CAP membership at large, Dr. Cina says. He outlines a “slippery slope” scenario that could result from the ruling.
“Though currently unlikely, what happens if this legal philosophy extends into civil law?” Say one pathologist has read a slide a certain way—for example, he or she called a case a prostatic carcinoma and another doctor called it benign adenosis—and the wrong treatment was initiated based on the misdiagnosis? “Certainly the pathologist can testify why he made the decision, and he would probably be brought in to do it, but being that the word ‘analyst’ isn’t defined, would you also be able to bring the histotechnologist who processes the slides, or the pathology assistant who grossed the tissue?” An analogous and more realistic situation, Dr. Cina says, would be to subpoena the diener who assisted with a forensic autopsy or the histotechnologist who prepared the slides that led to the diagnosis of ethylene glycol poisoning. “There is no reason to think this ruling will remain limited to the clinical pathology side of the house,” he says.
Another possibility: A clinician might have missed a critical anemia result, failed to transfuse the person, and the person died. As a result, the family sues the clinician civilly and an aggressive district attorney prosecutes the clinician for criminal negligence. The clinician may have the right to bring in any or all of the analysts of the lab who contributed to the reporting of that critical value. “That would not only temporarily cripple a laboratory but also further bog down the court system,” Dr. Cina says.
As a result of the ruling in the Melendez-Diaz case, analysts involved in any kind of lab testing may wish to become familiar with the art of courtroom testimony, he says, describing the quality of courtroom testimony by experienced analysts on most DUI cases as “not a problem.” “Our people have been through them enough that they’re okay on the stand now. As long as you tell the truth and say exactly what you did, and you have good standard operating procedures and exquisite documentation, you’re pretty safe. But occasionally somebody guilty has gotten off the hook because of legal maneuvers and manipulations by the defense to try to confound the issue. They can often get the jury focused on the testing process itself rather than the result,” Dr. Cina says.
Those kinds of issues, in fact, have already been on people’s minds because of a new National Academy of Sciences report on the problems of subjectivity, bias, and unreliability of common forensic tests. The report, “Strengthening Forensic Sciences in the United States: A Path Forward,” was released in February of this year. Its key conclusion: “The forensic science system, encompassing both research and practice, has serious problems that can only be addressed by a national commitment to overhaul the current structure that supports the forensic science community in this country.” The Supreme Court referred to this report in the Melendez-Diaz case.
Because the NAS report is new, the forensic community and the CAP are still digesting it to see what its implications might be for pathologists, Dr. Cina says. “Basically the study says there is very little standardization across the country with respect to policies and procedures in crime labs. It’s been raised that there could be potential bias in results if you’re working in a lab under the umbrella of a police agency that has a vested interest in seeing a case prosecuted successfully.”
Indeed, one recommendation of the NAS report is to have crime labs involved in toxicology testing be freestanding and separate from police agencies so there is no perception of bias. Says Dr. Cina: “That’s because the lawyer can bring up the question, ‘Organizationally, who do you answer to? Who is your boss? Oh, you work for the sheriff’s office? They arrested my client and now you’re testifying to his guilt.’”
Part of the reasoning behind the Supreme Court’s decision suggests that perhaps if a defendant has the ability to cross-examine an analyst directly in open court, the analyst may be more prone to elaborate on potential bias, confess to “fudging” lab results, or recant falsified statements they’ve made previously, Dr. Cina says. He doesn’t know whether that’s true: “It seems to me if you’re going to lie on an affidavit reporting the results of your assay, you’d do it to the bitter end.” Along these lines, the NAS report also recommended developing a standard code of ethics for labs and individuals involved in forensic casework.
Dr. Graham is not sure that measures such as those the NAS proposes are necessary. “Lawyers will bring up anything they think can help their case. That doesn’t mean it’s true, and it doesn’t mean the jury is going to believe it.” In some places the forensic pathologists do work for the police, “and actually in those places it seems to work pretty well.” In Oregon, for example, the medical examiner is within the state police department, “and I’ve never heard anybody accuse them of anything out of line.”
Bierig agrees, saying that when lawyers bring up a potential conflict of interest in the crime lab, laboratory personnel will quite believably say, “It doesn’t matter who cuts our paycheck. We do the right thing, and here’s all the procedures we use.”
The CAP does support the push for quality and standardization in forensic toxicology labs. “In fact,” Dr. Cina says, “many of them do buy the College’s products as part of their QA program, and we’d love to see that spread because quality is a good thing, and these are people’s lives we’re dealing with.”
Generally, the reasoning behind a right to confront witnesses is that it submits evidence to, as the court put it, the “crucible of cross-examination.” But there is some worry about the added pressure cross-examination might place on pathologists with respect to memorizing the chain of custody for each sample from a homicide case. For example, Dr. Cina says, a good lawyer might be able to shoot holes in the results of a test by asking, “What happened to the specimen after the autopsy? How do you know there wasn’t a mixup? Who touched it? How do you know this was a process in accordance with standard procedures? What are the lab’s standard operating procedures?”
In Dr. Davis’ view, fears about being grilled on the witness stand might be unwarranted. In the prototypical DUI case, the defense will usually cross-examine the police officer and then subpoena the lab technician or technologist who did the blood alcohol test. “Certain things don’t get challenged, but if I testify about blood alcohol, I get fairly stringently asked, ‘How do you know this?’”
“Most of the time the motivation is less about casting doubt on the lab findings and more about making sure everyone is put through their paces,” he suspects. “Maybe the defense counsel is hoping to cast doubt, but I think it’s part of being able to confront one’s accuser to say ‘I, as the attorney representing this defendant, want this to be a perfectly transparent process. You’re saying this belongs to my client? Prove it. Tell the jury your education, experience, and training, and show me what you did with it.’”
Dr. Davis downplays the prospect of character attacks, which can backfire. “I teach at the University of Kentucky College of Law, and one thing I tell students is if you’re going to attack evidence, that’s fine, but if you engage in ad hominem attacks you’re going to lose the jury. They’ll see through that.”
Aggressive questioning is not the rule, Dr. Davis says, but if it happens, “you have to maintain your equanimity. The minute you raise your voice or become defensive, you lose the jury. You’re just another pompous doctor. You have to remind yourself again and again the lawyer is not attacking you personally, that this is a ploy, a courtroom tactic.”
Moreover, there are actually benefits to cross-examination, Dr. Davis says. “Probably one of the main quality assurance tools in forensic work is a good cross-examination, because there are a lot of problems in crime labs around the country. I think this will lead to more cross-examination, and I don’t think that’s a bad thing.”
Dr. Cina’s take-home message is that labs should be carefully documenting who handles every specimen and that standard operating procedures should be well written and followed carefully. Any case is a potential medicolegal case, he points out. “You can’t predict, just looking at a vial of blood or a tissue sample, which case is going to be brought to trial or involved in civil litigation or a criminal trial.”
“In the back of every pathologist’s mind,” Dr. Graham agrees, should be the thought that “everything they do in the practice of medicine could potentially end up in the legal arena. What’s done in the hospital often ends up in the legal sphere, but in the majority of cases the pathologist’s testimony is not where the case is going to be won or lost.”
Legitimate concerns have been raised about the Melendez-Diaz ruling, Dr. Graham says. “But I personally think it is important that the defendant has the right to cross-examine someone whose lab test is going to throw him or her in the slammer. The result is usually right. But to say that it’s not challengeable in a system where challenge is inherent, I’d have some difficulty with that.”
Dr. Davis will address the issues this case raises at the CAP ’09 annual meeting in Washington, DC, along with Gene Herbek, MD, and Raouf Nakhleh, MD. In a session called “Legal News You Can Use,” “we’ll be talking about what to do if you are sued, what to do if you’re an expert witness, how to comport yourself in court, and what are the common tactics counsel will use.”
The Melendez-Diaz case is not a sign that the sky is falling, he says. “It will possibly entail getting stretched a little more because you have to get out of the lab more and talk to juries.” But that’s all right, in Dr. Davis’ view: “Pathologists and technologists need to get out from behind the bench sometimes. And this is just part of the process of what we do.”
Anne Paxton is a writer in Seattle.