You have the right to confront your accuser, as long as it's not too inconvenient.

Yesterday, the US Supreme Court heard arguments in a case that I think ought to be a no-brainer. The issue is this: in a criminal prosecution, can the state present a certified lab report as evidence without bringing in the person who prepared that report to testify? I frankly don't understand why this is even a question.

The 6th Amendment protects the right of criminal defendants to confront their accusers. It's obvious that an eyewitness who will testify he saw you commit the crime is an accuser as is the police officer who found the baggie of white powder in your coat pocket. But what about the lab tech who tested that white powder and decided it was cocaine? Well, isn't the person who says the stuff you had is illegal just as much of an accuser as the person who says you had it? Like I said, it seems pretty obvious to me.

At the oral argument, the tack the state of Massachusetts took was that it would be an undue burden on the state to have to bring these witnesses to court in every case. Huh? It would be too inconvenient for the state to bother with each and every defendant's confrontation clause right? Those who observed the argument don't seem to think that a majority of the court will go for the state's argument, but I'm perturbed that the argument wasn't laughed out of court. The 6th Amendment does not contain a convenience exception.

The state suggested that there is no real benefit to be had to the defense in cross-examining these lab techs because the report is really nothing more than data spewed out from a machine. This argument is a troubling reminder of how infallible the state wants everyone to believe its scientific evidence is. But no scientific evidence is infallible. And none of it is simply data generated by a machine without any human input or interpretation. All scientific evidence IS potentially infected by human error. If defendants are denied the opportunity to cross-examine the actual people who performed the tests, they may never uncover whether human error could have corrupted the results.

Take for example a DNA analyst who doesn't use the proper procedure in cutting samples. When the evidence in a given case comes into the lab, there are usually several different cuttings, from clothing items, carpet, etc. There are also the known swabs taken from the defendant, the victim, or some other person relevant to the case. So this big pile of evidence comes to the lab and needs to be prepped for testing. There are necessary protocols to follow to make sure no DNA from item 1 gets mixed in with item 2. Defense attorneys need to be able to question the person who handled those samples to make sure the proper steps were followed. Say the lab analyst testified she used the same blade for all her cuttings and used only alcohol to clean the blade in between. Well, that's defense gold because alcohol doesn't kill DNA (the blade should be discarded or cleaned with bleach to prevent cross-contamination). If that lab analyst were allowed simply to submit a lab report without having to testify, the defense would never have been able to show the jury the problems with the DNA testing.

In any scientific testing, or generation of any type of report, there are legitimate avenues of cross-examination regarding whether the specific individual who handled the evidence or simply oversaw the machine that spewed out the data followed all of the proper protocols. More than that, though, most scientific evidence does involve at least some element of subjectivity or interpretation. In those situations, a defendant has to be able to question why the analyst interpreted the data the way s/he did. There are just basic credibility issues that can't be overlooked. Is this lab analyst trustworthy? A corner-cutter? A slacker? Or less knowledgeable about the testing procedure than s/he would have us believe?

The bottom line is it just can't be good enough for the state to present a lab report to convict my clients. Bring in the real, live person who conducted the test so we can find out whether this person really knows what the heck s/he is doing and whether this person's opinion is at all shakeable. I don't care that it's logistically difficult, or even expensive, for the state to have to transport witnesses around the state. Why on earth should that inconvenience to the state trump a defendant's right to confront the witnesses against him/her? Here in my state, I've never known the state to try to admit just the lab report into evidence without bringing in the analyst to testify. I really can't imagine that the criminal justice system in any state will collapse under the incredible burden of complying with the 6th Amendment.

I am confident that the Court will also conclude that a decision in favor of the defendant in this case won't unduly burden the 50 states. But I really wish the Supreme Court hadn't been quite so willing even to consider the state's argument.