Tucked into the 2013 North Carolina budget bill is a provision imposing new court costs for expert witnesses who testify about chemical or forensic analyses at trial. Specifically, the new law (sec. 18B.19 of the budget bill) provides that upon conviction the trial judge must require a convicted defendant to pay $600 in costs if a state or local government crime lab employee testified at trial as an expert witness about a specified chemical or forensic analysis. The costs support the state crime lab or go to the local government unit that operates the lab to be used for law enforcement. There’s really no question about why this provision is in the budget bill. In the wake of Melendez-Diaz, crime labs have been stretched to produce forensic analysts in court while keeping up with the testing work. This provision is a legislative response to that pressure. But is it constitutional?
Citing United States v. Jackson, 390 U.S. 570 (1968), defense lawyers may argue that the statute impermissibly chills a defendant’s confrontation rights. See generally Richard Friedman, Potential Responses to the Melendez-Diaz Line of Cases at 10 (suggesting that cost recoupment for laboratory analysts raises constitutional issues). In Jackson, the Court held unconstitutional a provision of the Federal Kidnapping Act that authorized the death penalty if a jury recommended it, but contained no procedure for imposing death on a defendant who waived the right to a jury trial or pleaded guilty. The Supreme Court found that the death penalty provision impermissibly chilled the defendant’s Fifth Amendment right not to plead guilty and Sixth Amendment right to demand a jury trial. It stated: If a “provision ha[s] no other purpose or effect than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it would be patently unconstitutional.” 390 U.S. at 581. The Court continued, explaining that if, however, the statute has a legitimate government objective, that objective cannot be pursued “by means that needlessly chill the exercise of basic constitutional rights.” Id at 582. In the latter context, the question is whether the chilling effect is “unnecessary and therefore excessive.” Id. The Court found that the provision at issue was unconstitutional because although the government had a legitimate purpose—mitigating the severity of capital punishment—that goal could have been achieved without penalizing defendants who plead not guilty and demand a jury trial.
In later decisions, the Court has declined to adopt a broad reading of Jackson. In Chaffin v. Stynchcombe, 412 U.S. 17 (1973), for example, it noted that “Jackson did not hold . . . that the Constitution forbids every government-imposed choice in the criminal process that has the effect of discouraging the exercise of constitutional rights.” Id. at 30-31 (rejecting a claim by a defendant who received a harsher sentence on retrial than in his original trial; the defendant’s rights were not impermissibly chilled because the threat of a harsher sentence was speculative and simply another of the difficult choices which were an “inevitable attribute” of our judicial system). And in Fuller v. Oregon, 417 U.S. 40 (1974), the Court rejected a defendant’s argument that Jackson mandated invalidation of an Oregon recoupment statute requiring indigent defendants who subsequently acquired financial resources to repay their legal defense costs. The defendant had argued that knowing he may later be required to repay his legal costs could have impelled him to decline the services of an appointed attorney, and thus chilled his constitutional right to counsel. Rejecting this argument, the Court reasoned that since the statute was tailored to impose an obligation on only those who were able to repay costs, assessing costs on these defendants was not unnecessary to achieve its governmental purposes nor was it likely to substantially chill a defendant’s rights. Other decisions have declined to extend Jackson. See, e.g., Corbitt v. New Jersey, 439 U.S. 212, 218 (1978) (“cases . . . since Jackson have clearly established that not every burden on the exercise of a constitutional right, and not every pressure or encouragement to waive such a right, is invalid”).
My research hasn’t turned up any case law addressing the Jackson argument in relation to a statute similar to the new NC provision. However, many jurisdictions have general cost recoupment statutes. These statutes provide for recoupment of the “costs of prosecution” or “reasonable costs of prosecution,” and have been interpreted to allow for, among other things, the cost of testimony by government witnesses. See, e.g., People v. Palomo, 272 P.3d 1106, 1111 (Colo. Ct. App. 2011) (costs awarded for state technicians who testified as experts in ballistics, gunshot residue, and fingerprints). Jackson “chilling” arguments have not succeeded as to these statutes. United States v. Palmer, 809 F.2d 1504, 1506 (11th Cir. 1987); United States v. Wyman, 724 F.2d 684, 688 (8th Cir. 1984); United States v. Chavez, 627 F.2d 953, 955 (9th Cir. 1980); United States v. Fowler, 794 F.2d 1446, 1449 (9th Cir. 1986); United States v. Escobar, 1987 WL 31141, *5-6 (S.D. Cal. Sept. 30, 1987) (unpublished); Com. v. Coder, 415 A.2d 406, 408 (Pa. 1980); People v. Estate of Scott, 363 N.E.2d 823, 824 (Ill. 1977); King v. State, 780 P.2d 943, 958 (Wyo. 1989); State v. Marinucci, 321 N.W.2d 462, 467 (N.D. 1982). But see United States v. Glover, 588 F.2d 876, 878-79 (2d Cir. 1978) (per curiam) (although upholding a discretionary “costs of prosecution” provision in 28 U.S.C. § 1918(b), the court suggested that a mandatory provision might be unconstitutional in that it might chill constitutional rights).
However, the new NC law isn’t a general cost recoupment statute. Central to the courts’ analyses in the cases rejecting Jackson chilling arguments as to general cost recoupment statutes is their legitimate purpose: recovering a portion of prosecution expenses. Because the NC statute applies only to the prosecution’s forensic experts, defense lawyers might argue that the statute has no legitimate purpose other than to chill the assertion of newly recognized confrontation rights. That, of course, is categorically unconstitutional under Jackson. Assuming that it can be credibly argued that the statute has another valid objective (such as cost recoupment, an assertion that finds support in the statute’s provision regarding allocation of funds), the analysis shifts to whether the undeniable chilling effect on confrontation rights is—in the words of Jackson—“unnecessary.” Defense lawyers may argue that as in Jackson, the legitimate objective of supporting the crime labs can be achieved in ways that do not penalize defendants for exercising their constitutional confrontation rights. The State might respond by arguing, among other things, that the $600 cost is too low to rise to the level of a constitutional impediment and that more neutral general cost recoupment statutes have been held constitutional even though they impose a greater burden on the defendant’s rights.
Those are my musings for now. I’m still thinking about the issue and I’d appreciate any wisdom you have.
