Beyond Legislative Solutions to Melendez-Diaz

My recent paper (here) on the use of remote testimony in criminal cases involving forensic analysts was written in part because of the flood of interest in legislative solutions to Melendez-Diaz. That case held that forensic reports are testimonial and subject to the new Crawford confrontation clause analysis. One slam dunk solution to the Melendez-Diaz issue is for the State to bring all of the analysts to court. But that’s expensive so folks have been looking for other solutions. Many of the solutions that I’ve heard focus on legislative changes. Although there are some legislative solutions, in the end there is only so much legislating that can be done regarding a constitutional issue. So that got me wondering: What practical solutions are out there? Here are a few ideas. Please weigh in on whether these are viable and share any additional thoughts that you have. If you prefer to contact me directly, here’s my email:

1.  Encourage Officers to Become Certified Chemical Analysts. Many officers already are certified to perform a chemical analysis in DWI cases. When that’s the case, there is no Melendez-Diaz issue in the garden variety case. Because the officer has to testify as the primary fact witness for the State, the officer already is in court.

2.  Use Blood Tests Sparingly in DWI Cases. Although it strengthens the prosecution’s case to have a blood test, they aren’t needed in every situation. Suppose for example the officer can testify: “I saw the defendant driving at 2 am in an area filled with drinking establishments. Defendant was weaving out of the lane of traffic, drove through a stop sign, and was driving 15 miles below the posted speed limit. When I stopped his car his eyes were glassy, he reeked of alcohol and he was unsteady on his feet. Empty beer bottles littered the passenger seat. He failed field sobriety tests.” A blood test would amplify the case but on these facts it’s not needed. One way to ration limited resources to use them only when they are required. That means save blood tests for cases where guilt can’t be established without them or where the charge is very serious (e.g., second-degree murder).

3.  Pair Blood Analysts With Officers & Improve Case Scheduling. All officers have pre-scheduled court dates. If a blood analyst is paired with a particular officer, the two would share the same court dates. So for example, every blood test submitted by Officer X gets handled by Analyst Y. If Officer X’s blood test DWI cases are scheduled on the same day, Analyst Y only has to come to court on that one day to testify in Officer X’s cases.

4.  Regional Labs. They cost money, but they’d create efficiencies in terms of analyst travel time.

5.  Change Lab Procedures for Using Analysts. By their nature, some cases require a variety of different types of analysts. But some cases only require one type of analyst. When that’s the case, make it the same person, thereby reducing the number of potential people who have to testify in court.

6.  Change Procedures for Chain of Custody. Chain of custody information is testimonial. If seven people sign the custody log as evidence custodians, this creates the possibility of having to bring a handful of people to court just to authenticate the evidence. If procedures are changed so that no more than two people do this job for every case, it reduces the number of people required to prove chain of custody.

7.  Videotape Testing. This idea steps half-way into the legal area but here goes. If a forensic analysis is videotaped so that a testifying analyst can see each and every step of the process, including calibrating equipment, etc., it’s arguably as if the testifying analyst is standing by the testing analyst’s side. Although Williams cast a great veil of uncertainty over the use of substitute analysts, this is more than the testifying analyst had in that case, which of course was affirmed by the high court.

6 thoughts on “Beyond Legislative Solutions to Melendez-Diaz”

  1. While perusing the proposed house budget this morning, I noticed $500,000 appropriated to establish a “fund to be administered by the Conference of District Attorneys to allow district attorneys to use local hospitals for toxicology services in DWI cases.”

  2. All testing areas NEED to be under camera surveillance to secure the ‘rights’ of the accused, and assure that the proper process are followed. It seems to be far to easy for State agents to make any claims they want outside of earshot, and eyesight of the public.

  3. Isn’t the larger issue how to fix the court clog caused in certain counties… Wake County, I’m looking at you… by an overload of DWIs?

    How about some plea option? While the legislature certainly looks as pleas as evil, they are a necessary “evil.” I’m not suggesting that the legislature even needs to create a more lenient DWI sentencing level. They could reserve Level 5 to someone who pleads early, and impose stiffer punishments for someone who pleads later.

    Ultimately, this would resolve a lot of issues, especially on the defense side where the question always looms for a client: Why should I plead guilty if I’m not being offered anything?

  4. Thanks Danny Donahue for that comment. Wow, that will blow the barn door open on new confrontation issues if hospitals become agents of the State.

  5. House Bill 183 amends 20-139.1 to allow local hospitals to provide testing for law enforcement officers. Unfortunately it is stalled in the Senate.

  6. Brett, Do you know if anyone has considered the confrontation issues such a change might present, potentially beyond blood testing. For example, if hopsitals are acting as agents of the State for purposes of testing, might that open the door for arguments that other statements made to hospital personnel (e.g. ER doctors!) are testimonial?


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