It’s the bottom of the ninth for The Nine as we head into the U.S. Supreme Court’s last full week of the 2008-2009 term. As always, the Court is saving some of the best—and, inevitably, most internally divisive—rulings for last.¹ Here in the Commonwealth, we are eagerly awaiting the results of the most significant Massachusetts criminal case to reach the nation’s highest court this term: Melendez-Diaz v. Massachusetts, 07-591. If it comes down the way that most people seem to be expecting, this ruling may have an a broad and immediate influence on the litigation of drug-related criminal cases.

Luis Melendez-Diaz was arrested in Dorchester during the course of a drug transaction in a parking lot. He and his co-defendants were found to be in possession of a number of plastic baggies of powder of varying consistencies—some of which was white, some of which was yellow. Some, but not all, of these substances were tested by chemists in the state drug laboratory, and the lab concluded that all 22 grams or so was cocaine. The forms certifying these findings did not offer any specific information as to what methods were used to reach this conclusion, exactly how much of the drugs were tested, or any explanation as to the obvious differences in visual appearance between the samples. Pursuant to standard Massachusetts trial procedure, these drug certifications were deemed admissible in and of themselves, and their authors were not called to testify.

In his appeal to the Massachusetts Court of Appeals, Melendez-Diaz argued that these drug certifications were inherently “testimonial,” and therefore constituted inadmissible hearsay without the supporting live testimony of their author at trial. This argument naturally arises from recent developments in the interpretation of the Sixth Amendment’s Confrontation Clause, which provides that “…in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.” Like so many of our finest Constitutional principles, this is an ancient and honorable doctrine with a pedigree that predates Roman law, and a reasonably simple one: whenever realistically possible, our society believes that witnesses with testimony that would tend to criminally inculpate a defendant must be brought into court not only to present this evidence, but to be made available for cross-examination by the accused.

Unfortunately for Melendez-Diaz, the Supreme Judicial Court of Massachusetts had already squarely addressed this issue in Commonwealth v. Verde, 444 Mass. 279 (2005), and concluded that drug certifications are merely “business records,” rather than testimonial hearsay. Bound by this precedent, the Appeals Court dismissed Melendez-Diaz’s appeal in an unpublished opinion [PDF] which the SJC declined to review.

While this would almost certainly be the end of the road for any given criminal appeal, Melendez-Diaz had the benefit of some truly impressive advocates who took his case from an unpublished dismissal by an intermediary state appellate court straight to the docket of the U.S. Supreme Court. Inspiring stuff for any aspiring appellate attorney, but why would the Supremes choose to pluck this otherwise-unremarkable little case out of obscurity?

Because Melendez-Diaz presents a natural opportunity for the Court to begin to answer a huge question of law purposely left for another day in Crawford v. Washington, 541 U.S. 36 (2004). Crawford was a significant leap forward in Confrontation Clause jurisprudence, doing away with the prior rule that out-of-court testimonial hearsay could be admitted under some circumstances upon a finding that the statements were “reliable,” and instead simply holding, unanimously and unequivocally, that the Confrontation Clause was intended to mean exactly what it says: The accused shall enjoy the right to be confronted with the witnesses against him. But it also specifically left open the exact definition of the word “testimonial,” noting that this was a question “for another day.”

It is no surprise that authorship of Crawford, a unanimous affirmation of the Framers’ original intent, was assigned to the Court’s strictist and least reconstructed constructionist. In the course of researching his opinion, Justice Scalia apparently could not resist yet another opportunity to hold one of his patented Olde Tyme Original Intent Séances, after which he switched on the lights, put all of the furniture back in place, poured himself a strong cup of coffee, and reported back that:

Involvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse—a fact borne out time and again throughout a history with which the Framers were keenly familiar. This consideration does not evaporate when testimony happens to fall within some broad, modern hearsay exception, even if that exception might be justifiable in other circumstances.

Scalia may well have cause to regret going quite so far as Melendez-Diaz makes its final rounds through the Court’s chambers this week.² At risk of oversimplification, the fundamental principle outlined in this more or less inarguable paragraph is, at least to me, why Melendez-Diaz must come down in favor of the defendant. The Massachusetts statute authorizing the use of state forensic examiners specifically states that all reports produced by these individuals are sworn statements to be created “for the enforcement of law.”  G.L.c. 111 §12-13. By definition, therefore, it would seem that the Court will have little choice but to view them as “testimony” produced at the behest of law enforcement officers “with an eye toward trial.” It’s hard to imagine any other kind of sworn statement produced “for the enforcement of law” that could even begin to raise a serious question as to whether or not it was intended to be “testimonial,” especially one which is intended to conclusively establish a significant element of a given crime.³

It is also telling that Commonwealth v. Verde, the SJC case that Melendez-Diaz would effectively overturn if decided in the defendant’s favor, was decided largely upon the significant inconvenience that the Commonwealth would suffer if the actual analyst who prepared the report was required to appear in court for every case in which analysis of a given substance had been performed. Although that decision’s ultimate legal conclusion was that drug certifications were simply “business records” kept by the Commonwealth, and therefore could not rise to the level of hearsay, the court’s unusually practical focus suggests that this holding rested more upon pragmatic necessity than legal inevitability.

Personally, I don’t see it. Labelling the results of a scientific drug analysis as nothing more than a “business record” is an insult to the training and skill of the chemists responsible for these findings, as well as to the scientific method as a whole. Using current methods, at least to the extent that my English-major brain can understand them, the analysis of the composition of a given substance requires selective human application of a scientific process to specific evidence. Drug analysis is therefore different in kind from something like a Breathalyzer, a computerized “black box” that is easy to calibrate and otherwise externally verifiable by other means.⁴ While the process itself may be inherently reliable, it would seem that defendants should have a basic right to establish that it was properly performed on a representative sample in any given case, especially in light of the harsh mandatory minimum sentences which are implicated in so many drug cases.⁵ You don’t have to look much further than the facts of Melendez-Diaz to see why: only a small amount of substances which did not visually resemble one another were actually tested, and very little else seems to be known about how these samples were selected or what was actually done to test them.

To be fair, if the Court sides with Melendez-Diaz and rules that drug certifications must be supported by live testimony in every case in which they are used, this may have the potential to somewhat hinder the prosecution of drug cases—not only in Massachusetts, but in the many other states in which this kind of evidence may be admitted without supporting testimony—as well as to create jobs for a few more chemists.⁶ But arguments as to the potential burden to the system are never really going to get you too far with residents of our nation’s highest and ivoriest of towers—and I have to suspect, even without the benefit of a séance, that James Madison wouldn’t be too impressed either. It bears repeating that the Bill of Rights was designed not to protect the government, but the people that the government is supposed to serve.

The general consensus from court-watchers who observed the Melendez-Diaz oral arguments back in November (as well as a quick read of the transcript) suggests that the Court was leaning toward a finding that the drug certifications are “testimonial” and therefore subject to the Confrontation Clause. The fact that the final decision is still floating around the justices’ chambers this close to the end of the term strongly suggests either that the Court has become divided either on the ultimate result, or on how best to reach it. No matter how this all comes out, this case is well worth looking for next week.

1. As summarized over at SCOTUSblog, there are a total of ten major rulings left as of today’s date, including a campaign finance case arising from an anti-Hillary Clinton campaign “film,” a Fourth Amendment challenge to a school’s humiliating strip-search of a young girl, and the politically-charged “New Haven firefighters” Second Circuit case in which Supreme Court nominee Sonia Sotomayor was a panelist. [↩]
2. Then again, probably not: Scalia is a Confrontation Clause absolutist, and my bet is that he will side with the defendant no matter which way the Court goes on this. [↩]
3. Even more so in drug cases, where a margin of error of less than a single gram could potentially add years to a defendant’s sentence. [↩]
4. Even in drunk driving cases which rely upon these results, of course, it is standard to confirm through live testimony that the breath test was properly conducted by a machine that had been recently tested and calibrated. [↩]
5. Arguably, this same logic could—and certainly may in the future, if Melendez-Diaz goes the right way—be applied to previously-unchallenged testimonial reports such as those involving ballistics and computer forensics, but no need to go there quite yet. [↩]
6. Sure, this may cost already-overbudgeted states a bit, but just think of the bump that Men’s Wearhouse will get as chemists around the country scramble en masse to invest in a court-ready suit or three! [↩]

Matt Cameron