Assessing the Impact of Melendez-Diaz on the Investigation and Prosecution of Biological Weapons Incidents

The Case: Melendez-Diaz v Massachusetts

In Melendez-Diaz v Massachusetts, 3 men, one of whom was Luis Melendez-Diaz, were arrested and charged with distributing and trafficking cocaine. ³ At the state-level trial, the prosecution introduced certificates of laboratory analysis stating that material seized by police and connected to the petitioners was between 14 and 28 grams of cocaine. ⁴ In accordance with Massachusetts law, the state laboratory certificates stating that the substance found in the petitioners' possession was cocaine were sworn before a notary public and submitted as evidence in the state trial of what they asserted—that the substance found on petitioners was, in fact, cocaine. ⁵

The basis of Melendez-Diaz's challenge was the Constitution's Sixth Amendment Confrontation Clause; Melendez-Diaz objected that the court could not allow the laboratory certificates into evidence, because doing so would violate his constitutional right to confront any witnesses against him. The Constitution's Sixth Amendment guarantees such a right, ⁶ and as the opinion in Crawford v Washington states, it “commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross examination. …” ⁷

The Supreme Court's Confrontation Clause jurisprudence has undergone significant changes in the past 3 decades; Melendez-Diaz's Confrontation Clause test regarding forensic evidence is only the latest of many nuanced tests of the Sixth Amendment. For more than 2 decades, the Court's Confrontation Clause jurisprudence held a defendant's Sixth Amendment rights are not violated by the introduction of evidence that bears sufficient “indicia of reliability” ⁸ and that, while face-to-face confrontation “forms the core of values furthered by the Confrontation Clause,” it was not the only thing that would satisfy the confrontation right. ⁹ Therefore, a plaintiff or prosecutor's submission of a laboratory certificate to validate forensic evidence in lieu of a lab analyst's live testimony was previously not considered in violation of a defendant's Sixth Amendment rights.

In 2004, the Court's Confrontation Clause jurisprudence changed course, and in Crawford v Washington, the Court stated that “[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” ¹⁰ The Court, however, did not define the parameters of what constituted testimonial evidence, and since 2004, courts have struggled to define precisely what testimonial evidence is. ¹¹

The specific question of whether a forensic analyst's laboratory report prepared for use in a criminal prosecution is testimonial evidence subject to the demands of the Confrontation Clause was the issue raised by Melendez-Diaz ¹² and the basis for the Supreme Court's grant of certiorari in Melendez-Diaz v Massachusetts. ¹³ Melendez-Diaz asserted that if the prosecution wished to use the laboratory certificates as evidence that he was trafficking cocaine, the prosecution must produce the actual lab analyst—and not just the analyst's report—so that Melendez-Diaz would have the opportunity to confront the witness against him.

Although the trial court disagreed with Melendez-Diaz's assertion that the prosecution must present a lab analyst to testify live before the court to satisfy his Confrontation Clause rights, and the Massachusetts Appeals Court affirmed this ruling, the Supreme Court overruled both courts in June 2009. The majority opinion in Melendez-Diaz insisted that laboratory certificates qualify as affidavits “which fall within the ‘core class of testimonial statements' covered by the Confrontation Clause,” because the lab reports “asserted that the substance found in petitioner's possession was, as the prosecution claimed … the precise testimony the analysts would be expected to provide if called at trial.” ¹⁴

In addition to the citation of prior Sixth Amendment jurisprudence as a foundation for the ruling regarding the Confrontation Clause, Justice Scalia, writing for the majority, also cited a National Academy of Sciences (NAS) report on forensic science that discusses the variation in the quality of practice in the discipline across the country. ¹⁵ The NAS report looked at the shortage of adequately trained forensic science practitioners, failures within the discipline to adhere to robust performance standards, and resource challenges that hinder laboratories' ability to inform investigations and provide the most reliable data possible. The report focused on how these weaknesses in the forensic science community affect the use of scientific evidence in the courtroom and emphasized how these weaknesses significantly increase the likelihood that faulty forensic evidence could be used to convict innocent defendants. Specifically, the NAS report stated that “[b]ecause forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency.” ¹⁶ Justice Scalia brought the issue of the reliability of forensic science into Melendez-Diaz, writing that because scientific evidence can be unreliable, the prosecution must present the laboratory analyst before the court in order to satisfy a defendant's Confrontation Clause rights. ¹⁷

Immediate Impact of Melendez-Diaz

The impact of Melendez-Diaz was felt almost immediately after the June 2009 ruling in criminal prosecutions across the country, as forensic scientists were called to testify in court cases. However, because the laws governing how plaintiffs and prosecutors must present forensic laboratory certificates to courts varies state-by-state, some states were more burdened than others by the Supreme Court opinion. Nine states had already adopted a constitutional rule similar to the one mandated by the Melendez-Diaz holding, and thus will be less affected by its new constitutional mandates. ¹⁸

However, 41 states—including Massachusetts, where Melendez-Diaz was tried—have historically held that laboratory reports analyzing forensic evidence are merely a record of primary fact, with no judgment or discretion by the analyst, and could be admitted against a defendant only as prima facie evidence in lieu of live testimony. The weight of the certificate's validity in these states is left entirely to the jury's discretion. ¹⁹ The states following this Massachusetts-style rule will be required to change their laws and court proceedings to be in line with the constitutional rule announced in Melendez-Diaz.

Virginia, for example—a state that followed a law similar to the Massachusetts law ²⁰ —has been significantly affected by the Melendez-Diaz holding. Within 1 month of the June 2009 holding, defense attorneys subpoenaed drug analysts 925 times, compared to 43 times in July 2008, before the Melendez-Diaz ruling. ²¹ In August 2009 alone, Virginia's examiners spent 369 hours traveling to or testifying in courthouses across the state, whereas in the entire 11 months preceding Melendez-Diaz, the examiners had spent a total of 230 hours going to court. ²²

In addition to the financial burden states must undertake to fund an examiner's travel to testify at trial, the time analysts spend traveling and testifying reduces the amount of time the examiner can spend in the laboratory examining evidence from other crimes. ²³ This inevitably leads to backlogs in evidence analysis, as well as overworked laboratory examiners. For the states whose laws on forensic evidence are not in line with the Melendez-Diaz holding, meeting the new requirements posed by the Supreme Court's ruling will necessitate changing the norms of state forensic science laboratories, the reallocation of current analysts' time, and the need for these states to immediately hire significantly more analysts.

It is possible that the Melendez-Diaz ruling will have the most significant impact on federal laboratories, in part because its operations are so widespread, and because it will be the federal laboratories that will take the lead in processing any forensic evidence collected in a biological weapons incident.^24,25 The FBI laboratory at Quantico, for example, supports federal, state, and local investigations across the country, and its 500 employees conduct more than 1 million scientific tests each year. ²⁶ Despite this productivity, the backlog in national forensic laboratories was up more than 24% in the past 3 years, with more than 350,000 exams waiting to be conducted. ²⁷ Now, as Justice Kennedy wrote, “before any of those one million [federally analyzed] tests reaches a jury, at least one of the laboratory's analysts must board a plane, find his or her way to an unfamiliar courthouse, and sit there waiting to read aloud notes made months ago.” ²⁸

In addition to state and federal laboratories, lower courts have also felt an immediate impact of Melendez-Diaz. Writing in dissent, Justice Kennedy warned of possible future complications in the interpretation of Melendez-Diaz, stating, “There is no accepted definition of analyst, and there is no established precedent to define that term. … [T]he Court cannot define with any clarity who the analyst is. … [And] [t]he iron logic of which the Court is so enamored would seem to require in-court testimony from each human link in the chain of custody.” ²⁹

Therefore, even if a state or the federal government can produce one of the analysts involved in the forensic analysis of a certain piece of prosecution evidence, neither Melendez-Diaz nor the Constitution gives prosecutors or lower courts any guidance as to which analyst in the forensic analysis chain satisfies Confrontation Clause requirements as stipulated by Melendez-Diaz. One post–Melendez-Diaz case has already split at a state supreme court on this issue, indicating state courts will continue to struggle with implementing the Melendez-Diaz holding. ³⁰

Pending Action

Shortly after the Supreme Court issued its ruling in Melendez-Diaz, it granted certiorari in another Confrontation Clause case, Briscoe v Commonwealth of Virginia. ³¹ At issue in Briscoe is a specific Virginia law that requires the accused to call the laboratory technician who prepared the forensic report as a defense witness or else surrender the right to confront and cross-examine the lab technician. ³² If the accused chooses not to call the lab technician as a defense witness, Virginia law—before Melendez-Diaz—held that a prosecutor could then introduce a certificate of forensic laboratory analysis without presenting the testimony of the analyst who prepared the certificate.

The specific Virginia law at issue (Virginia Code §19.2-187.1) is similar to the laws in the other 40 states mentioned above that are currently being affected by the Melendez-Diaz ruling. More specifically, Virginia Code §19.2-187.1 asserts that the admission of lab certificates is acceptable because state law gives the accused the right to call the analyst, or a person “involved in the chain of custody,” as his or her own witness at trial, at the expense of the Commonwealth. Therefore, the Commonwealth of Virginia is asserting in Briscoe that an over-burdensome rule such as the one mandated by Melendez-Diaz is not necessary because Virginia's laws provide a type of “burden-shifting” statute that adequately protects a defendant's Confrontation Clause rights. ³³

Briscoe will now be decided in the Supreme Court's 2010 term to determine whether a state avoids violating the Sixth Amendment's Confrontation Clause by providing that the accused has a right to call the analyst as his or her own witness. ³⁴ The holding in Briscoe could significantly limit the impact Melendez-Diaz would have on the other 40 states that have laws similar to the Virginia law at issue in Briscoe. In addition, it is worth noting that Melendez-Diaz was a 5-to-4 opinion, with now-retired Justice Souter being one of the Justices who tipped the balance of the Court to be in line with Justice Scalia's majority opinion on this Confrontation Clause issue. Because Justice Kennedy's dissent in Melendez-Diaz strongly disagreed with Justice Scalia's majority opinion and was supported by 3 other Justices, some feel the arrival of Justice Sotomayor on the Court and the departure of Justice Souter could tip the balance of the Court in Briscoe, resulting in a holding in a majority opinion more in line with that of Justice Kennedy's dissenting opinion in Melendez-Diaz. Thus, the new structure of the Supreme Court alone could lead the Court to reconsider—or at least considerably narrow—the decision in Melendez-Diaz. ³⁵

In addition to evolving Supreme Court jurisprudence on Confrontation Clause analysis involving forensic science evidence, Congress has been looking into legislating change in the U.S. forensic science community, which includes the microbial forensics program. The Senate Judiciary Committee is considering reforms proposed by the NAS report, including calls for mandated national standards for establishing and enforcing best practices, the need for standards for the certification of individual examiners and for the accreditation of their laboratories, and continued investment in the research underlying modern forensic science. ³⁶ The NAS report also recommends that funds should be appropriated to better prepare forensic scientists and crime scene investigators to manage and analyze evidence from events “that affect homeland security,” including biological weapons use events. ³⁷

The Potential Impact of Melendez-Diaz

The impact Melendez-Diaz could have on future prosecutions of biological weapons incidents could be significant. As mentioned above, successful prosecution of an alleged biological weapons use event will most likely require the use of microbial forensics. In addition to the time and resource challenges the federal government will face, there could be significant national security concerns with forcing a federal government forensic analyst to testify live in court. These analysts may not want to be identified because of the high visibility of such a prosecution. In addition, there may be national security implications in revealing the testing methods and science behind the way the federal government tested biological weapons samples.

It is likely that only a handful of federal analysts will be sufficiently trained in the microbial forensics methods that the federal government is developing to test, identify, and potentially signal attribution claims in biological weapons samples. As microbial forensics, and particularly the use of microbial forensics in biological weapons attribution cases, is itself an ever-developing science, more questions may be raised about the reliability of this type of evidence in a courtroom.

In the Melendez-Diaz decision, Justice Scalia wrote, “[F]orensic evidence is not uniquely immune from the risk of manipulation,” and “[s]erious deficiencies have been found in the forensic evidence used in criminal trials.” ³⁸ Although the majority asserts that it addresses these deficiencies “only to refute the suggestion that this category of evidence is uniquely reliable and that the cross-examination of the analysts would be an empty formalism, …” ³⁹ it seems that an underlying sentiment driving the Melendez-Diaz ruling is the notion that the criminal justice system produces erroneous convictions based on discredited forensics. This distrust of forensic science in general may only be heightened in regards to the subdiscipline of microbial forensics, as these particular methods are newer, still developing, and less tested in the courts.

We highlight this aspect of the ruling so that scientists developing and advancing the field of forensic microbiology are aware of the potential uphill battle facing any prosecution hoping to use this scientific evidence in a case involving biological weapons use attribution. Policymakers should also be aware of the impact recent Supreme Court rulings and recent legislative efforts may have on the ability to seek a law enforcement solution to potential biological weapons use.

Conclusion

While the Melendez-Diaz case may not seem directly applicable to microbial forensics practitioners and policymakers working on best practices for attribution assessments and eventual prosecutions in events involving biological weapons, we believe that there may be important considerations that the community should be aware of. Not only does this ruling create an immediate burden on the workload of analysts, but it also calls into question how the courts view forensic science in general. The biological weapons policy community, as well as the scientists working on perfecting techniques to support attribution assessments and the use of microbial forensics in legal prosecutions, needs to be aware of this new precedent and to evaluate how best to work with it so that the ability to identify and prosecute an intentional biological weapons use event is not hampered.