by Stephen L. Carter
In 2013, a chemist named Annie Dookhan pleaded guilty to multiple charges relating to allegations that she’d falsified results while working at a laboratory that performed drug tests for the Commonwealth of Massachusetts. After her downfall, the lab where she worked was closed, and other staff chemists were investigated. Tens of thousands of drug cases were dismissed.
Here’s the kicker: At the time, some commentators argued that Dookhan’s misconduct might represent fallout from a 2009 Supreme Court ruling that when a forensic analyst performs tests that are used against criminal defendants — there was cocaine in his system; the blood alcohol was thus-and-so level — the technician must testify at trial, rather than, as in the past, submitting a written report. Because analysts were now forced to spend so much time in court, critics warned, they would have less time to run tests. Of course they’d cut corners.
All of which brings us to Friday’s decision in Smith v. Arizona, another narcotics prosecution, where the analyst whose tests determined that Joseph Smith possessed methamphetamines and other drugs didn’t appear at trial. (The court writes that “for unknown reasons” the tech “disappeared from the scene.” Yikes.) Another tech from the lab used the absent analyst’s notes as the basis of expert testimony. (Experts have broad freedom to rest their opinions on otherwise inadmissible evidence.) Smith was convicted.
The Supreme Court unanimously vacated the conviction, and although not all the justices agreed with the reasoning, Justice Elena Kagan’s majority opinion does seem to double down on the still-controversial rule that the tech who performs the test must come to court and be cross-examined — no matter what pressure this puts in the lab.
Some basics: The Sixth Amendment guarantees criminal defendants the right to confront the witnesses against them. For most of the nation’s history, the requirement was relatively toothless. In 2004, however, the court revived the so-called Confrontation Clause, holding that when a wife who’d witnessed an alleged crime committed by her husband refused to testify against him, the prosecutions could not admit as a substitute her recorded statement to police about the incident. Why? Because her refusal to take the stand made it impossible for her husband to cross-examine her about her “testimonial” statement.
This revolutionary development, led jointly and defended fiercely by the late Justices Antonin Scalia and Ruth Bader Ginsburg, was swiftly expanded, until, in 2009, the court held that a laboratory analyst who performed the tests on the substance deemed to be cocaine had to appear and be cross-examined. A sworn affidavit would not suffice. Along the way, the court rejected the claim that forensic technicians are simply performing “neutral” science.
Prosecutors who wanted the techs to stay in the labs tried various end-runs. Could a lab supervisor testify about the results, while the techs stayed in the lab, doing their work? The justices said no. OK, how about letting an expert witness rely on the tests — could the expert opine about the results without testimony from the tech? After all, experts are allowed to rest their opinions on evidence that’s not admissible. The justices said, um, well, er, we can’t actually get five votes for any answer.
But the answer matters enormously. True, the empirical evidence seems not to bear out the existence of what’s come to be known as the “CSI Effect” — the belief by jurors in the almost magical power of forensic science. (One study found that regular CSI viewers might actually be more skeptical than others about forensic testimony.) At the same time, forensic analysis — DNA, fingerprints, toolmarks, all the rest — remains crucial to many a criminal prosecution.
Unfortunately, crime labs aren’t much like what we see on television, where heroic detectives and idiosyncratic forensic experts have time to chat, play gags, protect each other from hired guns, and even date each other. In real life, forensic lab technicians regularly report high levels of stress. Due to their often gruesome work, many suffer PTSD-type symptoms. Crime labs are overworked pretty much everywhere. The pandemic shutdowns made things much worse.
Which leads us back to last week’s decision in Smith v. Arizona, where the court was expected to clear up the confusion. Instead, Justice Kagan’s majority opinion gives only half of the answer. When one tech testifies as an expert and relies on the work of another, writes Kagan, the jury is being asked to treat the absent analyst’s notes as true. That makes it hearsay. But the Confrontation Clause bars the expert’s opinion only if the notes are also testimonial — a term the justices have never rigorously defined, but which depends, Kagan tells us, on how the statements relate “to a future criminal proceeding.” Alas, the majority concluded that it didn’t have enough information to reach a decision on whether the absent analyst’s notes were testimonial, and sent the case back for further proceedings.
As for Dookhan, she’s out of prison, but continues to serve as Exhibit A for those who think the justices are right in their decade-and-a-half insistence that defense attorneys should have the chance to cross-examine lab techs. But although I’m glad the Supreme Court has revived the Confrontation Clause, the Dookhan scandal also suggests that cross-examination isn’t all that it’s cracked up to be. Over the three years before her arrest, Dookhan testified in more than 150 trials. No lawyer ever caught her in a lie.
