An Expensive But Necessary Extension Of the Confrontation Clause

By Mitchell Ignatoff
New Jersey Law Journal
November 25, 2008

On Nov. 10, I went to the U.S. Supreme Court to listen to the argument in Melendez-Diaz v. Massachusetts , which concerns whether the state is required under the Sixth Amendment to bring in the lab technician who analyzed a sample of cocaine to testify in a drug possession case.

Massachusetts law provides that a certificate from the technician is enough to prove that the sample tested contained cocaine and that if the defendant wants to cross-examine the technician, the defendant can simply subpoena him or her. Many states follow Massachusetts' example. New Jersey permits the defense to require the state to bring in the technician on simple notice to the prosecutor.

My sense of the argument is that the Court wanted to set a precedent for all lab tests, such as ballistics, drugs and DNA. I also believe that a number of the justices were quite concerned about the impact of their holding on the states. Yet it seemed to me that the Court was going to rule, in line with Palmer v. Hoffman , that any statement made in anticipation of litigation was testimonial and thus barred.

The Court wasted little time dispensing with the business record exception to the hearsay rule. The justices made it clear that there was no historical precedent for the proposition that a statement made in anticipation of litigation was a business record. The Court clearly felt that the technician's certificate was a statement made in anticipation of litigation. And this was so even though the technician was supposedly neutral, the machine doing the test was largely automated and the lab technician did these tests routinely.

The real issue in this case, unfortunately not really addressed by the parties, is: at what point does the state not have to bring in the technician to testify? Analytically, the Confrontation Clause has no limit. Even in a speeding-ticket case, the state would have to bring in the designer and programmer of the radar gun used so they could be cross-examined as to bias in the machine. And every American has a right to rely on the Confrontation Clause in every criminal prosecution.

I don't know where the Court will draw the line. The Sixth Amendment right to trial by jury applies to any case where the penalty is more than six months in jail. In Crawford v. Washington , the Court found that the Marian bail and committal statutes passed by Parliament in the 1500s for felony cases were exceptions to the right of confrontation.

This implies that in nonfelony cases, confrontation was routine at common law. So even in cases of petty offenses, at common law there was a requirement of full confrontation; the state had to bring in the technician to testify. People were prosecuted for such petty offenses as public drunkenness, working on the Sabbath and not being in church on the Sabbath.

My preference is that any statute that includes an option for jail time should require full confrontation. If the judge can throw your client in jail, your client should be entitled to full confrontation. The state must bring in its technician.

The history of confrontation is a history of the accused trying to prevent oppression. In the church courts, which punished for sin in England, heresy could be prosecuted on the basis of rumor. People were often tortured and killed based on whether the bishop believed them. And the accused were always denied the right to confront witnesses against them. The same is true of the magistrates' court at common law in England. People were often killed based on whether the magistrate believed them. And the accused were routinely denied the right to confront their accusers.

The New Jersey Supreme Court justices will never agree to full confrontation for any case that could result in a jail term. They, like almost all state court judges across the nation, dislike Crawford because it takes power away from judges and gives it to juries. The test for reliability of evidence is not whether the judge feels the evidence is reliable but whether the jury thinks it's reliable after cross-examination.

The extension of the Confrontation Clause will cost the state more money. It will require the state to hire more lab techs at a minimum. It will mean more trials. Liberty is expensive. But there is no alternative.

Ignatoff, a certified criminal trial attorney, is a solo in Middlesex.