Los Angeles Times
July 26, 2009

Supreme Court ruling shakes up criminal trials

Cases have been thrown out and doubts linger after last month's decision giving defendants the right to question forensic technicians in court.

By David G. Savage

Reporting from Washington — Until last month, the strongest evidence in drug and drunk driving cases in courtrooms across the nation often was a piece of paper. A crime lab or breathalyzer report would confirm that the defendant indeed had illegal drugs or a high level of alcohol in his or her system.

But a Supreme Court decision has sent a jolt through that procedure.

Now the prosecution must make a lab technician available to testify in person if the defendant demands it. As a result, some cases already have been dismissed. One state, Virginia, has called a special legislative session to change its laws. And some lawyers think ruling will continue to have a major effect.

In a 5-4 decision, the high court said lab reports served as “witnesses” for the prosecution. And because the 6th Amendment gives defendants a right to “be confronted with the witnesses against him,” Justice Antonin Scalia said drug defendants and others were “entitled to be confronted with the [lab] analysts at trial.”

While Scalia said the decision upheld the basic right to question the prosecution's witnesses, the four dissenters said the ruling had "vast potential to disrupt" the criminal courts. They also said it gave “a great windfall” to defendants, some of whom could have their cases dismissed because a lab technician was not available to testify.

Some prosecutors have said they fear the uncertainty -- and the potential cost -- of being required to have lab technicians ready to testify.

“This is a train wreck in the making,” said Scott Burns, executive director of the National District Attorneys Assn. “The court is saying you can’t submit an affidavit saying that the cocaine is cocaine. The criminalist must be there to testify the cocaine is cocaine. Particularly in rural states and in smaller communities, this is going to be a major problem.”

In Virginia, several judges in the last month have dismissed drunk driving charges against motorists because technicians were not in court to testify how a breathalyzer was calibrated. Gov. Tim Kaine has called the Legislature into a one-day special session to pass a bill, similar to laws in dozens of states, that will put defendants and their lawyers on notice before a trial that a lab report will be submitted as evidence. The defense lawyer then would have a duty to tell prosecutors whether a lab tech must be there to testify.

The court’s decision also raised questions. For example, is the required witness the lab technician who ran an evidence sample through a machine, or the expert who programmed or calibrated the machine?

It is also not clear what happens in cases in which the lab expert is not available. “What are you supposed to do if your ballistic expert moved from Cleveland to Phoenix prior to the trial?” Burns said.