Melendez-Diaz v. Massachusetts: testing the adaptation of the Confrontation Clause to neutral analysts and developing technology.

• Author: Huss, Stacy R.

In Melendez-Diaz v. Massachusetts, the Supreme Court of the United States in a five-four decision held that the admission of certificates of analysis indicating a positive test result for cocaine violated the Confrontation Clause of the Sixth Amendment because the defendant did not have the opportunity to cross-examine the laboratory analysts in court. Reinforcing this decision, the majority stated that the Confrontation Clause guarantees the right to cross-examine a witness who bears testimony against a defendant, and a laboratory analyst fits in this category. The Court further noted that certificates of analysis cannot be classified as neutral, scientific testing because human and fraudulent error are both present in the testing process. Although attempting to establish consistency in the application of the Confrontation Clause, the Court extended a defendant's right to an unprecedented area of the law. The South Dakota State Health Laboratory's unbiased and objective testing process is a clear example of this unnecessary extension. Considering the neutrality of the forensic analyst, the necessary adaptation of technology to the Constitution, and the objective testing process, the drug certificates of analysis should have been admitted without cross-examination of the laboratory analyst because they are the product of neutral, scientific testing.

1. INTRODUCTION

   In The Invisible Constitution, author Laurence Tribe states that many prominent scholars and judges, including Supreme Court Justices Antonin Scalia and Clarence Thomas, believe "that the towers of law that have been constructed over the years in the Constitution's name should be knocked down whenever it becomes clear that what has been built up in fact rests on a mistaken view of what the Constitution meant when it was originally adopted." (1) The Supreme Court's ruling and Scalia's majority opinion in Melendez-Diaz v. Massachusetts (2) is a perfect example of Confrontation Clause principles being built up over the years and taken to new heights that the Framers never intended. (3) Demonstrating this unintentional application of the Confrontation Clause, affidavits historically relied on by the prosecution were accepted without confrontation. (4)

   The Framers stated in the Sixth Amendment of the United States Constitution that defendants have the right to confront the witnesses against them. (5) The importance of the Confrontation Clause is undeniable as the Framers of the Constitution guaranteed the defendant the right to confront the witnesses against him or her so the jurors may evaluate the witnesses' demeanor during cross-examination. (6) The Court wavered in its treatment of the Confrontation Clause by initially establishing an "indicia of reliability" test (7) and then replacing it with the categorical rule that the Clause applies to all testimonial statements. (8) This conversion set the stage for the battle of traditional versus modernistic. (9)

   The majority in Melendez-Diaz approached the subject of laboratory certificates of analysis with a hardened nose, stating that "[t]here is little doubt that the documents at issue in this case fall within the 'core class of testimonial statements[.]'" (10) This statement disregarded the four Justices who highly criticized the inclusion of laboratory certificates of analysis in the category of testimonial statements. (11) Justice Kennedy in the dissenting opinion, with whom Chief Justice Roberts, Justice Breyer, and Justice Alito joined, recognized the distinction between neutral, scientific testing and ex parte affidavits by drawing attention to the difficulty of determining which person involved in the testing process would be required to testify in court.

   The dissent's arguments highlight the majority's unnecessary and overreaching conclusion. (13) The Melendez-Diaz ruling had good intentions of eliminating injustices such as errors in the testing process by requiring confrontation in neutral, scientific testing situations. (14) The application of the ruling, however, fails to do so by allowing an independent analyst to testify instead of the analyst who conducted the test. (15) The ineffectiveness of this ruling is also highlighted in the South Dakota State Health Laboratory's testing process through the lack of opportunity for bias and the unpredictability of whether the certificates of analysis will be used in prosecutions. (16)

   This note supports the dissent's argument that the certificates of analysis are neutral, scientific testing, and therefore the Confrontation Clause does not apply to forensic analysts. (17) First, the facts and procedure surrounding Melendez-Diaz will be discussed. (18) This note then provides a discussion of the history and case law accompanying the Confrontation Clause, (19) the impact of technology on the Constitution, (20) and today's forensic testing process. (21) The analysis divides the Court s phrase, "neutral[,] scientific testing," (22) into its three respective terms and demonstrates that this phrase is consistent with South Dakota State Health Laboratory's forensic testing process. (23) The neutrality of the testing process is demonstrated by the unpredictability of whether a certificate of analysis will provide evidence for or against the defendant (24) and the lack of bias in an analyst's work even though he or she may be employed by the government. (25) Examining the "scientific" component of this phrase, this note will discuss the adaptation of new technology to Constitutional rights and the need to do the same with the Confrontation Clause. (26) The "testing" aspect of the analysis recognizes the analyst's detached role in the testing process, (27) the inescapable presence of human error, (28) and the difficulties in applying the Court's holding. (29) Finally, this note identifies alternatives to the Melendez-Diaz ruling and reveals a more practical approach of incorporating certificates of analysis into the judicial process. (30)

2. FACTS AND PROCEDURE

   During the fall of 2001 in Dorchester, Massachusetts, K-Mart's security manager, Robert Impega, observed Thomas Wright, K-Mart's human resource manager, engaging in suspicious activity. (31) On five or six different occasions, Impega watched as Wright received non-work-related phone calls. (32) After taking the calls, Wright would then walk outside the store and get into a car driven by a Hispanic man. (33) On some occasions, a passenger was also riding in the vehicle. (34) After driving away, the car would return within ten minutes to bring Wright back to work. (35) The loss prevention manager reported this suspicious activity to Boston Police Detective Robert Pieroway on November 15, 2001. (36)

   After receiving the report, Detective Pieroway went to the K-Mart store that same afternoon where he witnessed the same unusual activity. (37) The detective observed Wright exit the store using the front door, wait for a few minutes, and then re-enter the store. (38) The car that Impega had described drove by the front of the store. (39) Ellis Montero, the driver, drove past the entrance, turned around and drove by the entrance again. (40) Luis Melendez-Diaz occupied the front passenger seat of the vehicle. (41)

   When the car stopped in front of the store, Wright emerged from K-Mart and entered the back seat of the vehicle. (42) As the car drove through the parking lot, Wright leaned forward between the two front seat occupants. (43) After Wright leaned back in his seat, Montero stopped the vehicle, and Wright exited and walked toward the store. (44)

   Before Wright was able to re-enter K-Mart, Detective Pieroway stopped him. (45) Wright admitted to having four bags of cocaine in his possession at that time. (46) A search revealed four clear bags in Wright's front pocket. (47) The detective directed two officers seated in a patrol car in the parking lot to stop the suspicious vehicle and arrest the two occupants. (48) After the officers followed these instructions, they conducted a pat down search on Montero and Melendez-Diaz to ensure neither of them had weapons on their persons. (49)

   All three suspects were placed in the backseat of the officers' patrol car. (50) On the trip to the police station, Melendez-Diaz and Montero made comments in Spanish to each other and were acting uneasy. (51) Upon arrival at the station, the three suspects were taken inside to get booked. (52) Meanwhile, one of the officers went outside to search the patrol vehicle. (53)

   Cash in the amount of $320 was found on the ground outside of the car door that Montero and Melendez-Diaz had used to exit the vehicle. (54) The officer also came across nineteen baggies filled with a white powdery substance in the patrol car's backseat. (55) These bags appeared to match the bags confiscated from Wright at the store. (56) The bags collected from Wright and the bags from the patrol car were sent to the State Laboratory Institute of the Massachusetts Department of Public Health. (57)

   On March 4, 2002, Melendez-Diaz was indicted for trafficking over fourteen grams of cocaine, distributing cocaine, and engaging in a conspiracy to distribute cocaine. (58) To prove an element of distributing cocaine, the prosecution entered three certificates of analysis by the State Laboratory Institute that indicated that the baggies contained cocaine. (59) These notarized certificates were conclusory affidavits and only stated the weight and the type of substance contained within the baggies. (60) Under Massachusetts law, the certificates of analysis were "prima facie evidence of the composition, quality, and the net weight of the narcotic[.]" (61) The trial court overruled Melendez-Diaz's objection that these certificates violated his right to confront the witnesses against him. (62) As such, a Massachusetts jury found Melendez-Diaz guilty of distributing and trafficking cocaine. (63)

   The Appeals Court of Massachusetts affirmed his conviction in 2007...