Yeah, like this guy.

FTA: And nationwide, thousands of drug cases might have to be thrown out of court annually.

This is enough for me. Well done, Scalia (never thought I'd say that) and your colleagues. Chalk one up for individual liberty.

Just another example of how the legal system continues to fark it up when dealing with science.

Get me the Batman.

SCALIA, J., delivered the opinion of the Court, in which STEVENS,
SOUTER, THOMAS, and GINSBURG, JJ., joined. THOMAS, J., filed a concur-
ring opinion. KENNEDY, J., filed a dissenting opinion, in which ROB-
ERTS, C. J., and BREYER and ALITO, JJ., joined.

Now there's an interesting break down!

jbuist: SCALIA, J., delivered the opinion of the Court, in which STEVENS,
SOUTER, THOMAS, and GINSBURG, JJ., joined. THOMAS, J., filed a concur-
ring opinion. KENNEDY, J., filed a dissenting opinion, in which ROB-
ERTS, C. J., and BREYER and ALITO, JJ., joined.

Now there's an interesting break down!

I thought the same thing.

Well done Scalia and Co.

It's not like it's hard to get a PhD on salary to present your 'science'

jbuist: SCALIA, J., delivered the opinion of the Court, in which STEVENS,
SOUTER, THOMAS, and GINSBURG, JJ., joined. THOMAS, J., filed a concur-
ring opinion. KENNEDY, J., filed a dissenting opinion, in which ROB-
ERTS, C. J., and BREYER and ALITO, JJ., joined.

Now there's an interesting break down!

Wow...don't know when we'll ever see those alliances on a decision again.

NuttierThanEver: Just another example of how the legal system continues to fark it up when dealing with science.

What? This is a great ruling. Instead of juries being told that "this is science, that makes it true," defense attorneys can cross examine the tech who will explain that these tests aren't necessarily perfect.

I am so confused. Why would Scalia and Thomas support this? I agree with the opinion, but it seems unlike them.

Lawyer thread:

Scalia's decision makes no sense to me. How is this not a business records exemption?

sweetmelissa31: I am so confused. Why would Scalia and Thomas support this? I agree with the opinion, but it seems unlike them.

Scalia is a big fan of the Confrontation Clause, if I remember correctly.

The dissenting opinion was pretty brutal:

"It is remarkable that the Court so confidently disregards a century of jurisprudence. We learn now that we have misinterpreted the Confrontation Clause - hardly an arcane or seldom-used provision of the Constitution - for the first 218 years of its existence."

sweetmelissa31:

Why would Scalia and Thomas support this?

Scalia to benefit his mob connections and Thomas, well, because that could be anyone's hair on that can.

kronicfeld: sweetmelissa31: I am so confused. Why would Scalia and Thomas support this? I agree with the opinion, but it seems unlike them.

Scalia is a big fan of the Confrontation Clause, if I remember correctly.

What's your take on DamnYankees question regarding the business records exemption, counselor?

DamnYankees: Scalia's decision makes no sense to me. How is this not a business records exemption?

Even if it were a "business record," which I think is highly dubious, business records aren't magically admissible just because you hold up a document and say "judge, this is a business record." The "record" still has to be authenticated, and the court still has to hear evidence of the things that qualify the document as a business record. Those vary from jurisdiction to jurisdiction, but generally you need to show - again, through evidence, not mere representations of counsel - that the record was kept in the regular course of business, and that it was in the regular course of business to make that record.

Scalia striking a blow for the rule of law?

Whoda thunk it?

is that just me, or can you all sort of hear Ode to Joy off in the distance?

"enjoy the right to be confronted with the witnesses against them" is enough for me. The fact that it means fewer potheads going to jail is just the sweet, delicious icing.

benlonghair: NuttierThanEver: Just another example of how the legal system continues to fark it up when dealing with science.

What? This is a great ruling. Instead of juries being told that "this is science, that makes it true," defense attorneys can cross examine the tech who will explain that these tests aren't necessarily perfect.

You can present the data on the sensitivity and specificity of a test and then present data that sheds light on the risks of false positives of any tests without having to demand that the tech who put the test in a machine 1000 miles away be present to question directly. You want to cross examine the tech that collected the samples? Fine, that makes sense.
But demanding to have a lab tech be present just explain that it was he that but chemical A into beaker B and then hit the switch on the PCR machine is just assinine.

sweetmelissa31
I am so confused. Why would Scalia and Thomas support this? I agree with the opinion, but it seems unlike them.


Thomas supported it because Scalia did.

fnorgby: is that just me, or can you all sort of hear Ode to Joy off in the distance?

"enjoy the right to be confronted with the witnesses against them" is enough for me. The fact that it means fewer potheads going to jail is just the sweet, delicious icing.

it also means fewer rapists and serial killers too.

Let's hope this puts a nail into the coffin of red light and speed cameras at the same time.

/i call the speed camera as my next witness

kronicfeld: sweetmelissa31: I am so confused. Why would Scalia and Thomas support this? I agree with the opinion, but it seems unlike them.

Scalia is a big fan of the Confrontation Clause, if I remember correctly.

That is my recollection as well.

DamnYankees: Lawyer thread:

Scalia's decision makes no sense to me. How is this not a business records exemption?

Because if the record is generated at the request of law enforcement, it was prepared specifically for the purpose of a criminal prosecution, i.e. not in the "ordinary course of business," hence, business records exception out, Sixth Amendment in.

NuttierThanEver

it also means fewer rapists and serial killers too

Perhaps prosecutors will now have to focus their efforts on real crimes instead of hauling a bunch of stoners through the justice system then.

I wonder if this will have an impact on the number of drug offenses that get prosecuted. It seems that it might throw a procedural hurdle up for the prosecution that might not make it worth the trouble. But, I'm not an attorney.

NuttierThanEver: fnorgby: is that just me, or can you all sort of hear Ode to Joy off in the distance?

it also means fewer rapists and serial killers too.

NO it goddamn doesn't. Don't be naive. It means that prosecutors will have to prioritize when and where they use the scientific evidence. Murderers and rapists I'm betting are going to be high on that list.

It just might add another reason for defense attorneys to consider not waiving the right to a speedy trial, but as far as I'm concerned that is also a good thing. A right that the system is designed to prevent you from exercising is not being properly observed in the first place.

NuttierThanEver: But demanding to have a lab tech be present just explain that it was he that but chemical A into beaker B and then hit the switch on the PCR machine is just assinine.

If it makes it more difficult for the cops and prosecutors, I say it's a win. Period.

Basically, if it's not a big deal, don't make one out of it. Put your resources into cases worth prosecuting.

This is the dumbest thing ever. Dragging some poor schlub into court because he just happened to handle the sample...the same way he handles dozens of samples a day. Then, what happens if some screwed up jury buys the "reasonable doubt" in the 99.9% accurate test? Every one of that tech's cases suddenly gets a new appeal? Gimme a break. Meanwhile, that tech isn't in the lab dealing with the ALREADY huge backlog of samples (because these days if you DON'T sample something, then it's an automatic win for the defense in the era of CSI juries)...so every other case is completely fuxored.

Yes, it'd be great if we could line up absolutely everyone involved in your conviction and you could ask each one of them "did you do it right this time?" before finally going to jail, but it's just not feasible.

What's next? The secretary in the precinct who typed up your report has to verify that she didn't misspell someone else's name and that she really did mean to type your name into the arrest warrant?

Nabb1: Because if the record is generated at the request of law enforcement, it was prepared specifically for the purpose of a criminal prosecution, i.e. not in the "ordinary course of business," hence, business records exception out, Sixth Amendment in.

I wasn't aware that something made for the purpose of prosecution (which I might also contest is the 'purpose' of these tests) was an exception to the business records exception. I've only taken my one semester of evidence, but is that in there? I would have imagine that since doing drug tests and the like is the entire 'business' of these people, then those records are presumed to be accurate.

Maybe there is a confusion as to who is being called to testify. I think there is a big difference between bringing an expert to say these tests aren't always reliable, and bringing on the lab tech just to confirm that was the paper says is accurate.

kronicfeld: The "record" still has to be authenticated, and the court still has to hear evidence of the things that qualify the document as a business record. Those vary from jurisdiction to jurisdiction, but generally you need to show - again, through evidence, not mere representations of counsel - that the record was kept in the regular course of business, and that it was in the regular course of business to make that record.

But does anyone doubt a drug test taken by a known lab doesn't qualify? These aren't random sheets of paper, are they? I had assumed these were official test results taken by known labs.

NuttierThanEver: it also means fewer rapists and serial killers too.

No, it means a re-allocation of resources to focus on rapists and serial killers.

VelcroFez: "It is remarkable that the Court so confidently disregards a century of jurisprudence.

I LOVE that rationale. The longer we've been doing something wrong, the more validity the wrong action gains.

Marcus Aurelius: Perhaps prosecutors will now have to focus their efforts on real crimes instead of hauling a bunch of stoners through the justice system then.

perhaps prosecutors will be throwing every damn charge they can at stoners to get them to plea out.

ju66l3r: This is the dumbest thing ever. Dragging some poor schlub into court because he just happened to handle the sample...the same way he handles dozens of samples a day.

Perhaps, if we had actually had some public scrutiny and cross-examination of the lab guys in the courtroom, Harris County crime lab wouldn't have been able to go on falsifying and fabricating evidence for so long.

Hundreds, if not thousands, of innocent people would not be in jail.

bud jones: perhaps prosecutors will be throwing every damn charge they can at stoners to get them to plea out.

They already do this.

SchlingFocker: Perhaps, if we had actually had some public scrutiny and cross-examination of the lab guys in the courtroom, Harris County crime lab wouldn't have been able to go on falsifying and fabricating evidence for so long.

I think you should be allowed to call in the lab guys if you have some reasonable reason to believe there was fraud. You shouldn't be able to just go fishing in the courtroom. Do your fishing with your outside investigation.

fnorgby: NO it goddamn doesn't. Don't be naive. It means that prosecutors will have to prioritize when and where they use the scientific evidence. Murderers and rapists I'm betting are going to be high on that list.

Right, because having a lab tech take a whole day to travel and testify in one case isn't going to slow down the process at all.

I'm not sure this is going to have as big an impact as everyone thinks. So long as the lab techs are honest and using techniques and equipment that are well understood, there's not going to be much opportunity to get anything out of them on cross-examination that would lead to a not guilty verdict or a reversal on appeal. If the tech says he performed tests X,Y, and Z, followed all the testing protocols, and calibrated the machines correctly, there's not a lot to argue against.

And on the administrative side, one of the biggest problems in forensic science is the potential for extraneous information about the case to filter over to the scientists running the test - if they know that this DNA analysis is the one piece of evidence that can send a serial killer to prison, they'll be influenced. One possible solution to that is to have some kind of testing supervisor/mediator/case analyst - basically, someone trained in the techniques who strips off all extraneous information about how a specific piece of evidence ties into a specific case, then turns it over to the testers under blind protocols, and then recieves and reports the results from the testers. Under Melendez-Diaz, it might be possible to have the supervisor come out to testify and give the background on the tests performed, and the accused can confront them, while the scientists can keep doing work on other cases for other supervisors.

It's when the forensic scientists practice more art than science, start getting creative, and play loose with the science that they will (hopefully) start getting stomped on. And in such cases, they will deserve it.

bud jones: Marcus Aurelius: Perhaps prosecutors will now have to focus their efforts on real crimes instead of hauling a bunch of stoners through the justice system then.

perhaps prosecutors will be throwing every damn charge they can at stoners to get them to plea out.

And perhaps defense attorneys will know it's a desperate bluff.

DamnYankees: I think you should be allowed to call in the lab guys if you have some reasonable reason to believe there was fraud. You shouldn't be able to just go fishing in the courtroom. Do your fishing with your outside investigation.

Holding the state to its burden isn't "fishing."

MasterThief: I'm not sure this is going to have as big an impact as everyone thinks.

I think the argument is (at least mine is), that since it likely *won't* have much of any impact, doing it is just a waste of time and effort. It's pointlessly clogging up the system and wasting the time of lab techs.

kronicfeld: Holding the state to its burden isn't "fishing."

What a nice little platitude. Come on now - that's not an argument.

DamnYankees: What a nice little platitude. Come on now - that's not an argument.

Platitude? It's a "platitude" for me to point out that we can and should insist on the state meeting its burden of proof when it attempts to take away people's liberty?

Would you say we shouldn't even bother having a police officer/witness testify in person unless there is some reasonable reason to believe that he's making it all up?

DamnYankees: You shouldn't be able to just go fishing in the courtroom.

It's not fishing. It's adequate scrutiny of the evidence provided by the state.

In the case of the Houston crime labs, you had some lab techs who simply didn't know how to even do the procedures. If they were put on the stand and asked to describe the process of sampling and matching DNA, they would have failed miserably.

ju66l3r: This is the dumbest thing ever. Dragging some poor schlub into court because he just happened to handle the sample...the same way he handles dozens of samples a day. Then, what happens if some screwed up jury buys the "reasonable doubt" in the 99.9% accurate test?

I've always been of the opinion that "it is better that ten guilty persons escape than one innocent suffer. (Blackstone)"

There's been a lot of talk recently about how forensic science isn't what it's cracked up to be. See dogs following a trail months (sometimes years) later, fabricated bite mark evidence, horribly written brethalyzer code.

The burden of proof has come onto the defendant instead of the prosecution. And the prosecution, most of the time, has all the money and resources to bring to bear. This is a good ruling.

kronicfeld: Platitude? It's a "platitude" for me to point out that we can and should insist on the state meeting its burden of proof when it attempts to take away people's liberty?

Rules of evidence are not the same thing as a burden of proof. Don't confuse them.

kronicfeld: Would you say we shouldn't even bother having a police officer/witness testify in person unless there is some reasonable reason to believe that he's making it all up?

Of course they need to testify, because they actually observed something happen and need to relate it - that's narrative evidence. A lab report is a different kind of evidence. It's not narrative, it's merely analytical.

And by the way, we sometimes do let people 'testify' without them showing up. It's called an affidavit, and it has its uses.

DamnYankees: MasterThief: I'm not sure this is going to have as big an impact as everyone thinks.

I think the argument is (at least mine is), that since it likely *won't* have much of any impact, doing it is just a waste of time and effort. It's pointlessly clogging up the system and wasting the time of lab techs.

And a huge waste of money... Sending off a lab sample could cost the county the cost of the sample AND they might have to pay to have the lab tech come out. I highly doubt rural countys have the money for that sort of thing.

kronicfeld: Holding the state to its burden isn't "fishing."

This!

DamnYankees: And by the way, we sometimes do let people 'testify' without them showing up. It's called an affidavit, and it has its uses.

Yeah, and they're extraordinarily narrow circumstances.

SchlingFocker: In the case of the Houston crime labs, you had some lab techs who simply didn't know how to even do the procedures. If they were put on the stand and asked to describe the process of sampling and matching DNA, they would have failed miserably.

Ok. So if you went to the judge and said "your honor, we have reason to believe the lab tech didn't know what he was doing, because of resaons X, Y, and Z, so we would like to call him", I would let you call him. I just think the presumption should be that in cases like this we should let the records in when there's no reason to doubt them.