Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
The New York Times has an article about last year's Supreme Court ruling that gave defendants the right to cross examine the lab technicians who analyze forensic evidence and how prosecutors and the government just hate having to actually make an effort to comply with that ruling. They're hoping a new case this term will result in the court dramatically narrowing the scope of that ruling to make the job of convicting people much easier for them.
"Already data and anecdotal evidence are demonstrating an overwhelming negative impact," a friend-of-the-court brief submitted by 26 attorneys general last month said. The decision, they said, "is already proving unworkable."
Let me translate that for you: "It would be so much easier if we could just dispense with hoary old ideas like due process and the right to a fair trial. Our jobs would really be much more pleasant if you would make it easier for us to convict people based on evidence that may well be inaccurate and unreliable. Thanks."
We have untold numbers of people who have been convicted of drunk driving using breathalyzers that show off false positives due to dozens of commonly used items, including cough drops and gum. We have crime labs all over the country, most recently in Detroit, New York and Colorado, that have been found to have incredibly high error rates, resulting in wrongful convictions of innocent people.
In one of those cases, in New York, there was a single lab tech who had faked his results for fifteen years in hundreds and hundreds of cases. We certainly can't rely on prosecutors to find out such things; they claim even after that tech was exposed that his 15 years of fraudulent tests didn't actually affect any trials -- and if you believe that, you're living in fantasy land.
Requiring that tech to take the witness stand and defend his test results might well have exposed him as a fraud in the first year rather than the 15th year. It might well have kept many innocent people out of prison. But that's okay because it's really hard to give defendants due process and actually care about distinguishing the guilty from the innocent.
To those whining prosecutors I say: Maybe you should find a new line of work.
Politics
Comments
We would be a whole lot safer if the cops just put everybody in jail.
Posted by: mark | December 29, 2009 9:33 AM
Any prosecutor who saw the cross examination of evidence collector Dennis (I only wear booties over my shoes to keep them clean) Fung in the O. J. Simpson trial would be terrified at the prospect of being forced to put such folks or their lab technician counterparts on the witness stand.
IMHO, they really don't have much to be concerned about as very, very few criminal defense attorneys have the capabilities that Barry Scheck brings to the table
Posted by: SLC | December 29, 2009 9:33 AM
Posted by: Wscott | December 29, 2009 9:41 AM
it looks like their argument is mainly about the increased cost of prosecutions, based on techs having to spend half their time in court. That's a fair point...
Not really. In other parts of the country forensic lab scientists are already called as witnesses (my friend is a forensic chemist in CA), and AFAIK the cost of prosecution is not significantly higher. Why would NY be any different?
Posted by: eric | December 29, 2009 10:16 AM
Higher costs might well be an accurate point. That doesn't make it a fair point. IF there were reason to think that the current system was working fine, THAT would be a fair point.
However, as Ed notes, it's quite clear that the current system of crime labs is NOT working just fine.
Posted by: qetzal | December 29, 2009 10:30 AM
Why should the cost for lab techs to appear in Court be that much more than having Law Enforcement Officers appear to testify? Witnesses never want to take a day off to testify: So what?
Posted by: kehrsam | December 29, 2009 10:33 AM
eric @ 4: from the brief:
If all your lab techs spend half their time in court, then you either have to hire more techs, or run fewer prosecutions. Again, whether it's worth the expense or not probably depends on how well you think the currrent system works.
Question for someone who's followed this more closely: the brief makes it sounds like the ruling only applies to drug analysis. Is that right?
Posted by: Wscott | December 29, 2009 10:36 AM
I have a question for all those prosecutors who think that 15 years' worth of suspect data never influenced a single one of their prosecutions:
Why did you waste the court's time and the people's money by introducing this non probative, non-dispositive evidence?
As I recall, the lab tech in NY couldn't even see through a microscope (you know what I mean).
Posted by: PoxyHowzes | December 29, 2009 11:21 AM
The cost of prosecution is not higher. The costs to law enforcement is significantly higher. Employees only have so much time to work in any given day/week/month/year. They have their share of cases/evidence which must be processed.
This ruling would require a significantly greater amount of time away from their worksite to testify in person on their lab results. That time away means other cases are not being worked. If all the scientists/techs are testifying in the same fashion, there is no slack. The only solutions are to hire more employees or process less evidence.
Given the current fiscal climate, there is no hiring of more employees. That leaves processing less evidence which means fewer arrests, fewer trials and fewer convictions because of a lack of evidence. On the flip side, it means less exonerating evidence too.
I live in a populous state but most people have no concept of the amount of forensic evidence collected in normal cases (burglaries, etc.) The amount of evidence collected for homicides is significantly greater and crosses specialties. All that evidence should be processed and generally affects the backlogs that most states/agencies carry.
As negative an impact these dishonest/inept scientists and techs had, the other option is a return to convicting on things like witness statements. Those were such rosy days, yes?
Posted by: Gish | December 29, 2009 12:35 PM
Per Mark's comment at #1, I think...
We would be a whole lot safer if the cops were just put
everybodyin jail.Posted by: onkel bob | December 29, 2009 1:08 PM
But the people who work in evidence labs are all brilliant scientists! Are you saying TV is lying to me?
Posted by: Taz | December 29, 2009 1:35 PM
It may cost more to have the techs who did the forensic analysis testify in court about that analysis. So? Seems to me that an analysis such as that is part of the prosecution's accusation of the defendant. I recall that a defendant has the right to face and question his accusers. The cost of doing that is the cost of providing justice. Anything less, ain't justice.
Posted by: Looseleaf | December 29, 2009 2:03 PM
Much of the fuss seems to be over issues of timing and order, not whether the defendant can cross-examine a lab tech. I'm not sure there's a problem with requiring a defendant who really intends to question the accuracy of the test and really wants to cross-examine a lab tech to give notice within a specified reasonable time, instead of requiring the prosecution to put the lab tech on in every direct case, just in case the defendant's lawyer wants to ask some questions.
Posted by: CJColucci | December 29, 2009 2:13 PM
Wscott and Gish,
We all understand the logical flow of the argument. It seems sound on its face, but what I'm saying is that we don't have to evaluate it on its face: we have data. From States that do it. It seems utterly foolish not to use it or at least consider it. And IMO, that the NY prosecutors don't bother using or referring to data from States where techs actually do testify is not a good sign (for their argument), because if their simple economic model reflected reality, they almost certainly would cite it.
Posted by: eric | December 29, 2009 2:26 PM
If only there were some way to reduce the need for arrests, trials, and convictions...
Here's one: end the War on Drugs.
Posted by: DaveL | December 29, 2009 2:30 PM
Re CJ Collucci
Maybe I'm missing something but it is my information that the defense has no authority at present to force the prosecution to put on any particular witness in many jurisdictions. Of course, the defense attorney can always call the lab technician as his/her own witness but, unless approval from the judge is obtained to ask leading questions, it is generally considered risky practice to put on a hostile expert witness.
Posted by: SLC | December 29, 2009 5:20 PM
I'm all in favor of the right to question any experts who analyzed evidence, but I think we should be careful about how far we go. The expert who made the decision about what the results mean? Absolutely. The lab tech who did the work? Probably relevant as well. How many people touched the evidence in the process, though? Is a written statement from those individuals indicating that they didn't spit in the sample enough, or are you going to drag each one of them into the courtroom?
I haven't read too much on the details of the decision, but it makes me wonder where the line will have to be drawn. For example, having the people who carried the samples or the lab techs who made the reagents the criminal lab used take the stand probably doesn't provide any useful information, but it would be a great tactic for defense teams to use to make it nearly impossible to mount cases based on lab work.
Does the decision clearly define who is absolutely necessary to bring in, or does it open up a nasty slippery slope?
Posted by: Troublesome Frog | December 29, 2009 7:00 PM
I am a forensic scientist performing drug analysis, and I am frequently called to testify. The number of cases where I'm actually called, though, is a relatively small fraction of the cases I do each year. There are times when I'll drive for 4 hours to a trial, only to have the defense stipulate to my report or enter a guilty plea, and other times when I'll sit around the courthouse all day while jury selection gets dragged out. These things do happen, but they aren't typical. I can't speak for other agencies, but I am not aware of anyone in our system who spends half their time testifying.
For what it's worth, the 99.999% of us who do our jobs with honesty and integrity are disgusted with the frauds, liars, and cheats. It taints all of us. I have to convince a jury that I know what I'm talking about, and that they can believe my testimony. Having them associate me with the lying liars makes that much harder.
Posted by: notCSI | December 29, 2009 7:01 PM
SLC: If the prosecution declines to subpoena their witness, why can't the Defense Move to Exclude the evidence?
In any case, the witness doesn't have to be in the courtroom. Just schedule one day a month at the lab as "Deposition Day."
Posted by: kehrsam | December 29, 2009 7:44 PM
Not necessarily -- my employer hasn't paid me to testify in court when I've been subpoenaed. No reason the State should be different. The techs can testify on their own time just like I do.
And, yes, I realize this might make for difficulties in recruitment.
Posted by: D. C. Sessions | December 29, 2009 8:38 PM
mark said (#1): "We would be a whole lot safer if the cops just put everybody in jail."
Perhaps we would be a lot safer if cops just started putting themselves in jail. I remember reading some years ago that a police officer is five times more likely to wind up in prison than the average American.
Posted by: Alan | December 30, 2009 2:02 AM
Of course the tech should be required to testify. What if the defense attorney notices that the tech has trouble reading something handed to him? Or smells alcohol on his breath when he gets near him? Maybe it is unlikely but if your life is in the hands of a guy or gal who ran some test then I think that guy or gal should be required to get up in front of a jury a swear that he did the best job he could.
Posted by: Tom | December 30, 2009 9:39 PM