Does it therefore follow that Traffic Robots must appear in
court as well? They too are taking measurements.

Loreweaver: captain_heroic44: Loreweaver: Oh, I used the wrong analogy.

Thanks to this ruling, the nurse that administered the rape kit to the victim will now be required to testify, so the defense can accuse her of tainting the evidence. The tech that processed the kit will be required to testify, so the defense can accuse them of tainting the evidence.

And if even one of these people don't/can't testify, the case is automatically dismissed. Because everyone knows that these random doctors, nurses, techs, and hospital receptionists all have a grudge against the defendent...

It's also wrong that we require the victim to testify, and be cross-examined. We should dispense with that requirement too. When a woman accuses a man of rape, she should be BELIEVED.

Except that in the scenario I outlined, you are requiring testimony from people who have no bearing on the case. It becomes an attempt by the defense to accuse random people, with no connection to the victim or the suspect, of specfically conspiring against his client. In effect, it is nothing more than a distraction.

In addition to the possibility that these people might, in some cases, actually be biased, there is of course the chance that they might make mistakes. When performed by a competent attorney, cross examination is an effective tool to bring that out.

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.

I'm torn on my own opinion of this ruling. While I agree that there is precedent for mistakes being made in the lab, it's true that having an expert witness in the courtroom to present these findings is really a step in the correct direction.

Then again, I have worked in or alongside of labs all my life. Even the 'put chemical A into beaker B and shake' can be screwed up, indirectly.

IANAL, but a defense attorney SHOULD be able to ask the technician a lot of useful questions, such as, what brand of machine do you use? Where are all the things that could go wrong with this particular equipment you use? What's its service record? How do you report QC? How often? How are the results recorded into the record? How do you QC your reagents? What other calibration tests were run that day along side the experiment's? Who else used the machine that day? How many replicates did you use? What's the confidence range? etc etc.

In fact, the prosecution could benefit from asking those questions, too, in some circumstances.

Believe it or not, those are good questions to ask. Errors can show up in weird places. One place I worked had a technician forget to ADD WATER to a typical post-experiment flush step, which screwed up the following experiment run by another technician. This wasn't caught until much later. Not a court case but still an important experiment.

mofomisfit: Would I be wrong in asserting that we have NO IDEA what the damaging effects of crack, meth, heroin or any other drug are when legalized and properly regulated?

Yes, you would. See, for example, pot in Amsterdam--or alcohol in the United States (a situation where we have a pretty clear example of the effects of banning and then unbanning a substance).

mofomisfit: captain_heroic44: Which is why clear thinking people distinguish between drugs with serious deleterious effects on communities and individuals, and drugs that have less serious deleterious effects. A rational approach balances the liberty interest of individuals in self-determination against the damaging effects of the drugs. Those drugs whose damaging effects, when legalized and properly regulated, exceed the value of individuals' liberty interests in self-determination are properly prohibited. Those drugs whose damaging effects, when legalized and properly regulated, are less than the value of individuals' liberty interests in self-determination should be permitted.

Would I be wrong in asserting that we have NO IDEA what the damaging effects of crack, meth, heroin or any other drug are when legalized and properly regulated?

We don't have any actual empirical evidence. But we can use reason to make sensible forecasts.

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

Then you don't know him as well as you were led to believe you did. It's not your fault. Journalists do a pretty terrible job of covering the Court.

Unless the technician is blind to the implications of the test results (i.e. who would be convicted for what crime), this is a good ruling.

DamnYankees: 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.


What does fraudulent have to do with falsity? They shouldn't have to defend it because it's fraudulent. They should have to defend it because there is a good chance it's false.

Here is the big problem. It seems that people think that forensic science is very accurate and the weight that is given to this information is often unfairly prejudicial instead of probative. Many people believe that forensic science is all DNA. It's not. Yes DNA maybe 99% accurate but that is not what is at issue in many cases. Techs do a lot of crap that has nothing to do with DNA and the accuracy of those results are often dubious at best.

Congress commissioned a report by the National Academy of Scientist that came out in February that admitted as much. CSI and the rest of that crap is just entertainment for TV. I am to lazy to look for the Congressional Report but the links below sum it up. It's quite reasonable to require a tech or scientist to defend there findings when liberty is at stake.

http://www.evidencemagazine.com/index.php?option=com_content&task=view&id=140&I t emid=9

http://www.npr.org/templates/story/story.php?storyId=100831831

http://www.npr.org/templates/story/story.php?storyId=100813367

http://www.livescience.com/culture/090218-forensic-science.html

Anything that gives the accused another opportunity to challenge the state's case is a good thing.

And if this makes it more difficult, ie more expensive for the states to prosecute drug cases, well, cry me a river. Anyone who thinks drugs are the big problem in this country is an idiot.

If your lab procedures are as they should be, I'm not sure why it should be such a horrible burden to have a human in court to explain them, when relevant, rather than just having a piece of paper for the DA to present.

Every time the state (cops, prosecutors, etc.) has been required (usually by a Supreme Court ruling) to actually honor the principle of "innocent until proven guilty" or just common sense and decency, they biatch and moan that it's gonna slow everything down, murderers and rapists will walk free, America as we know it will cease to exist, etc. It's bullshiat. If it was up to many cops and DAs, they could haul your ass in for any number of things, not have to tell you what you're being charged with (or not go to the trouble of formally charging you at all) and keep you in jail until you plead guilty so that they don't have to go to the bother and expense of a trial. Having a shiatty justice system would be a lot more efficient and inexpensive. So let's do it like the Saudis do. I bet they don't spend very much on their trials.

RE Loadmaster 2009-07-15 05:06:17 PM
"This will be another way around the ruling. Simply get defendants to sign a waiver, not requiring the lab techs to present their test results in person."

You mean the way they "get" defendants to confess to a crime? Or plead guilty to a crime in exchange for a lesser sentence since the DA has all the evidence he/she needs to convict you and you don't want to go to Death Row, do you, so just plead and we'll give you 20 years instead.

Suck it Al Gore!!!!!

Dead-Guy: Wow...
this is pretty far reaching and undermines the entire legal system.

Sir, I'd like to bring the authors of the constitution to the stand. I stand accused of violating the constitution, and if that's a crime, I need to face my accusers.

Or you could get the case tossed because it is a civil not a criminal matter, unless you are acting as an agent of government.

Why not be satisfied with like a notorized and sworn document stating that all standard proceedures were followed according to whatever documents govern that particular item, and then have a resident expert on hand in-court to field questions regarding that.

Because that may or may not be what happened and your expert could not prove that and would not have relevant testimony? Nah, that wouldn't be the exact argument made by Scalia

If 10 people were involved in stages of testing an unknown substance, all ten people need to stop work and travel to the court and spend hours/days waiting to see if the case date might be postponed?

Or they could be scheduled just like every other witness and be called and leave within about an hour.

If I steal $100 dollar bill, I'd like to call the currency printing people to the stand.. ALL OF THEM, or you can't prove this is a real $100 dollar bill to begin with, and all I've stolen is a piece of paper that's been printed on with no intrinsic value beyond the cost of materials used to make it. Or are you a scientist that can prove that this is a real $50 bill?

Why prove that when they can just prove the act of theft? Or would you rather be convicted of theft and possession of counterfeit currency?

How about this.. As evidence is approved for use in a case, the defense may hire a team to disprove that piece of evidence. (ie- "that's not cocaine") If they are successful, or able to establish a reasonable doubt, THEN you'd be required to call in the folks that originally tested the material if you still wanted to push the issue.



I know it's innocent until proven guilty, and this places the burden of DISPROOF on the defense, but isn't that how it is anyways?

No. Because this case rests on your ability to question the evidence prior to admission.

Someone has proven that the item in question is indeed cocaine, thereby proving it. It's not cocaine? prove it.

Because you cannot prove a negative. But more importantly, because I have the right to ask how you proved it was cocaine.

If I have a substance in-front of me that I'm testing, I'm not accusing anyone of anything, I'm merely identifying the material in-front of me.

No, your report is testimony to your opinion of what it is.

I love when laymen explain the law. It's like seeing a foal try to take its first steps. Cute but full of false starts and missteps.

If anyone is looking to figure out what their new career should be these days, this is one of those big flashing neon signs that say "Chemist" or "Pathologist".

Oh hey, just called a lab manager I know about this and got some info for folks:

1) The industry new about this 2 weeks ago... is this old?
2) This was already the procedure for everything else that wasn't a criminal trial. State vs Industry has enormous lawsuits over borderline cleanup toxin levels (like benzene).
3) His part of a typical report for 15 samples(from one source) runs about 500-1000 pages (and that is just one section).
4) Typical BAC tests in a lab have 99.9% accuracy within .002 (yes, THAT many standard deviations) This is due to them being used to testing for parts per trillion.
5) Breathalyzers are crappy which is why they make you sign that "this is my test result" paper or go get the blood taken at a hospital. If you don't sign, you can waste some time and let your body metabolize as much as possible before getting to the hospital. This is recommended by many defense lawyers as they will probably not prosecute if you're just on the line.
6) That blood sample has to have full reports of custody from the officer saying it never left his sight/person/possession until it reaches the lab.
7) Labs operate with full awareness that every move they make could be brought up in court.
8) About half of an analysts day is consumed by making those horrifying reports.


Think that's about it. My dad says "hi."

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!

It is called the Originalist lineup in SCOTUS. Contrast them with the pragmatists.

This split is NOT unprecedented. It holds for a line of cases (called the Apprendi line), which deal with the Sixth amendment.

The first case in the line,Apprendi v New Jersey (new window) had this lineup:
Majority Stevens, joined by Scalia, Souter, Thomas, Ginsburg;
Concurrence Scalia;
Concurrence Thomas, joined by Scalia (in parts);
Dissent O'Connor, joined by Rehnquist, Kennedy, Breyer;
Dissent Breyer, joined by Rehnquist.

See the pattern?

vertiaset: You mean edited out of ignorance and prejudice

FTFY

Marcus Aurelius: red li

This!!!

I have a serious problem with the big brother cameras, and if the prosecution MUST have an expert witness to validate the machine in every case, this may well be the end of those evil machines.

/no, I don't mean all machines are evil. but those machines are.

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.

Yeah--the breathalyzer will cease to be more than it should have been: a screening tool. It's nowhere near reliable enough for the courtroom.

To me, though, the bigger thing is it will allow them to challenge messed-up crime labs. I predict a lot of acquitals while the major underfunding of crime labs gets corrected.

VelcroFez: 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."

Huh? There were crime labs back then???

kronicfeld: 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.

And furthermore, the business record bit is for the normal operating records of the company, things that were never expected to be in court. I don't see how that applies to things specifically being prepared for trial.

NuttierThanEver: 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.

And why in the world would a lawyer ask for this in the first place? How about asking about the procedures to ensure errors don't happen?

Generation_D: Not to hijack this too much, but this also seems to suggest computer forensic evidence would also have to be handled by a real trained individual, not just by a cop. Which has been a concern lately to some. "I pointed and clicked my way through grabbing his browser cookies, so therefore he's guilty." Wouldn't fly any more. Julie Amero style prosecutions should be prevented if you require actual forensic skills with computers to present evidence.

Yes. Cases like this demonstrate that law enforcement can't be trusted to protect the rights of suspects who aren't guilty.

SchlingFocker: Ryan2065: What tests are sent out in the DUI cases?

This ruling will undoubtedly provide for scrutiny of the software used by breathalyzers.

There's a reason the breathalyzer manufacturer has been fighting tooth and nail to avoid having their software exposed in court.

The "black-box" aspect will be removed.

It's even worse than that. The breathalyzer is inherently flawed other than as a screening test. The problem is that it *ASSUMES* the ratio of breath alcohol to blood alcohol--when the actual ratio varies over a 3:1 range.

MrBERZERKER: just a thought on the overwhelming number of posters who think too many "non-violent" drug cases are prosecuted, independent of my views on the decision...

i clerk in a prosecutors' office. i never thought i would advocate prosecuting "non-violent" drug offenses, but that belief has changed rapidly.

people seem to think too many drug cases are being prosecuted, and i agree to some extent. but just because its "non-violent" doesnt make it victimless. is it a good think when a suspect is not prosecuted for selling crack cocaine to an undercover cop? its "non-violent," but what is the impact of this activity on entire neighborhoods and cities? the unexagerated answer is it destroys them.

Actually, it's the drug war itself destroying the neighborhoods. Make the stuff legal (or perhaps by prescription, addiction being a valid reason for a prescription) and most of the harm goes away. So long as you don't permit advertising it the demand won't go up, it may even go down as you don't have pushers looking to hook people.

KickahaOta: rekoil: The biggest problem I can see here is that the lab technicians who will now be required to testify can potentially become targets for retaliation. Forensic evidence would become inadmissible if the lab tech happened to have a Tragic Accident (TM) on the way to the courthouse.

This thread has gotten too big for me to follow, but I had to jump on this one too.

If the tech were to have a tragic accident on the way to the courthouse -- and if there were any evidence connecting that "accident" to the trial -- then not only would the defendant now be looking at a murder charge, but no, this would not stop the evidence from being introduced. The Supreme Court made it very clear that "forfeiture by wrongdoing" still applies. If someone is going to testify against you, then you have the right to cross-examine them. But if you prevent that person from testifying against you by some wrongful act -- by killing them, by giving them money and putting them on a plane out of the country, etc. -- then the prosecution can introduce the evidence that that person planned on giving against you, and you cannot complain about lack of cross-examination, because you forfeited that right.

(Forfeiture by wrongdoing applies to lots of other rights as well. To give the classic example, you have the right to an attorney; but if you punch your attorney in the face in the middle of the trial, and he won't represent you anymore, then the fact that you no longer have an attorney is your own fault.)

But what if they can't link you to the murder?

I think it should be handled a bit differently: Both sides send a lawyer to the lab, they get to grill the guy like in the courtroom, a videotape is made and either side can then use the tape in court.

Only if someone has evidence to contradict the testimony thus given is someone called to court.

Marcus Aurelius: 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

Akk. Here's what I was saying THIS to.

Ryan2065: JeffreyScott You don't address why we need the lab tech who worked the sample to testify in the trial. Have the lab tech's name and his credentials stapled to each case he works and then call him if there is a problem with the results or his credentials that you want to argue over. Otherwise, why couldn't anyone who knows about this stuff testify about the different tests and all that jazz?


You must have failed to read the article or the court opinion. It deals with the admission of evidence via an affidavit, so there isn't anyone there to ask any questions. The only thing that is there is what is written in the report and the affidavit stating the report and procedures were followed.

If the paperwork has been completed fully, then the results are considered 100% accurate with no chance of error, as the report does not mention that there are many over the counter medications and also some medical conditions that may result in a false positive. In fact, the statute does not require the report list anything about false positives.

For example, the report might state that THC was found and list the level of concentration. HOWEVER, the lab report does not state that this could be a false positive if the subject had consumed an Advil and Aleve or any other number of over the counter medications in the 12 to 24 hours prior to the sample being provided by the defendant.

This places the defendant in the position where he is considered guilty, based on the lab report, without the ability cross examine the lab tech about the false positive issue. Sure my client could hire an expert witness, at his expense, at the cost of $2000 to $3000 to come to court an testify but most defendants are barely able to scrape up the money for bond and there attorney. (Note: The statute that allows the drug results to be placed into evidence via affidavit does not allow me to challenge the result by affidavit form an expert, any expert the defendant wants the court to consider must come from direct testimony who appears in court so the DA can cross examine.)

The use of the affidavit unconstitutionally shifts the burden from requiring the state prove the sample contained a prohibitive substance to requiring my client prove that the sample did not contain a prohibitive substance.

griffer: ellesar: lol

I am a conservative. More right wing than you can imagine.

I wasn't addressing you, and you haven't made any arguments to refute, son.

ellesar: Oooh you can call me a name

Yup.

Nothing to refute.

ellesar: a freaking term paper.

How's the learnin' up in the big ol' university there, college boy?

ellesar: so you can smoke pot

Anecdotes, straw men, made up stats, and ad hominem attacks do not an argument make.

/maybe you should take a rhetoric and debate course to get beyond the "hippy-yo'momma" level of discourse


lol thought you weren't gonna bite? For someone who likes to claim I'm just a troll, you sure do respond to every ;post I make....

boobsrgood: Ellesar is so full of shiate his eyes are even brown.

Gateway drug? Seriously? Are you a child?

Actually they are green. And you are calling me a child with a cutdown like that? Why don't you just call my momma fat while you are at it douche canoe.

give me doughnuts: PawisBetlog: Marcus Aurelius: 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 like your ideas and would like to subscribe to your newsletter.

\fewer victimless crimes through the legal system = GOOD

More violent criminals released due to scheduling problems with the lab techs = BAD.

Color me crazy, but I'd characterize violent criminals under the "real crimes" component of what I quoted. it's not like we'll all of a sudden not be able to prosecute anyone. And frankly, if the prosecutor can't schedule a lab tech for a violent crime case then they should be fired. If there's an unforseen circumstance that's what judges are there for, they can grant a recess until the tech is able to make it.

\Nice attempt to redirect though.

dragyne:

I'd rather let a million murders free than convict an innocent man

as an innocent man - i'd go to jail if i thought i could bring a million murders with me.

but yes - your point is taken. however, this is a strawman argument - it is what you are "supposed" to say and it is nice in theory, but beyond being a motivator to strive to keep the judicial system as honest as possible - it is a pragmatically useless statement.

vertiaset: Maybe, just maybe, the U.S. has the resources and the technical ability to detect crime, track down criminals and to successfully prosecute them.

Maybe, just maybe, the "Tough on Crime" policy is downright stupid and harmful to your country.

Maybe, just maybe, we are far more diverse than other nations, with a large population of people who live in a subculture of criminality and thuggery, who generation after generation commit violent crimes such as armed robbery, assault and murder without the societal restraints of the larger culture which surrounds them.

"Far more diverse" how? Are you using the word "subculture" as a euphemism for "ethnicity?" What kind of subcultures are you talking about?

Maybe, just maybe, we have strict laws against the importation, manufacture and sale of illegal drugs. Yes, heroin, cocaine and methamphetamine. Drugs which destroy lives, families and entire communities.

Maybe, just maybe,you don't know WTH you're talking about. The US isn't the only country in the world with strict laws against the import etc of drugs.

vertiaset: Scientists are like prostitutes, pay them enough and they will do what you want. Hell, they will even provide you with "peer reviewed" studies showing that angels live at the bottom of the sea if enough money is involved.

Pathman: dragyne:

I'd rather let a million murders free than convict an innocent man

as an innocent man - i'd go to jail if i thought i could bring a million murders with me.

but yes - your point is taken. however, this is a strawman argument - it is what you are "supposed" to say and it is nice in theory, but beyond being a motivator to strive to keep the judicial system as honest as possible - it is a pragmatically useless statement.

No strawman there. That is the honest truth of my beliefs. If that means that the guy who mugged my mother got out a year earlier, so be it. I am not saying it just to say it, that would be a strawman. Yes even if it involves my family or even my daughter. I do not want any wiggle room for anyone by having them denied rights.

DjangoStonereaver: "I'm a BAAAAAAAAAAAD Supreme Court Justice...."

Who's on first?

vertiaset: Sure it does. Why? Because it is an important historical document in the development of Western Jurisprudence. If you do not acknowledge this then you are ignorant. If you do and still believe the way you do then you are prejudiced.

I suspect, based on your posts, that it is a combination of both.

You're talking about the bible here, yes? If so, then no, it is not an important historical document. The bible is a collection of fairy tales and half-mythical tales of human barbarity.

vertiaset: Bacontastesgood

lab tech : scientist :: taxi driver : automotive engineer

This is true. However, the many medical doctors, engineers and other expert witnesses could arguably be called scientists.

no - this is NOT true. there are many lab techs that i work with that are exceptional scientists. you two have no idea what you're talking about at best. at worst, ie if you are in anyway actually involved in the wet sciences, you are just elitists.

i suspect the former.

Best ruling out of the Supremes in years, and it comes from Scalia?

I'll take it. Bye-bye BS prosecution of so many things by hard-line D.A.s and cops.

So damned happy with this one, I'm almost speechless.

Heheheh, I LOVE IT!!!!11

So appropriate timing wise. Check this out, Popular Mechanics did an article entitled "The Truth About Forensics." Turns out, most of the forensic "science" was created by cops. That's right, cops. Not peer reviewed papers, no scientific method, only a process developed by those firmly on the side of the prosecution. (Sorry, no web link because it's a current article.)

All I can say is wow. Awesome turn of events. THIS should put an end to activist judges and ridiculous prosecutions of the innocent.

Oh yeah, the article points out several innocent men who were jailed on shaky "evidence" for big parts of their lives.

With any luck it should put a stake in the heart of those retards at MADD.

/I'm giddy really

Howie Spankowitz: 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.

Yet another intellectually honest supreme court decision from a originalist justice. You libs applaud him when he sides with you but tear him apart when he doesn't fall in line with your skewed reality in the world. How this country has survived this long with you people arond is beyond me.

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!

no kidding. amazing shiat right there.

JeffreyScott: Ryan2065: JeffreyScott You don't address why we need the lab tech who worked the sample to testify in the trial. Have the lab tech's name and his credentials stapled to each case he works and then call him if there is a problem with the results or his credentials that you want to argue over. Otherwise, why couldn't anyone who knows about this stuff testify about the different tests and all that jazz?


You must have failed to read the article or the court opinion. It deals with the admission of evidence via an affidavit, so there isn't anyone there to ask any questions. The only thing that is there is what is written in the report and the affidavit stating the report and procedures were followed.

If the paperwork has been completed fully, then the results are considered 100% accurate with no chance of error, as the report does not mention that there are many over the counter medications and also some medical conditions that may result in a false positive. In fact, the statute does not require the report list anything about false positives.

For example, the report might state that THC was found and list the level of concentration. HOWEVER, the lab report does not state that this could be a false positive if the subject had consumed an Advil and Aleve or any other number of over the counter medications in the 12 to 24 hours prior to the sample being provided by the defendant.

This places the defendant in the position where he is considered guilty, based on the lab report, without the ability cross examine the lab tech about the false positive issue. Sure my client could hire an expert witness, at his expense, at the cost of $2000 to $3000 to come to court an testify but most defendants are barely able to scrape up the money for bond and there attorney. (Note: The statute that allows the drug results to be placed into evidence via affidavit does not allow me to challenge the result by affidavit form an expert, any expert the defendant wants the court to consider must come from direct testimony who appears in court so the DA can cross examine.)

The use of the affidavit unconstitutionally shifts the burden from requiring the state prove the sample contained a prohibitive substance to requiring my client prove that the sample did not contain a prohibitive substance.

Best educational post I have ever seen in fark.

/fellow lawyer
// real estate

The speed camera is a machine. Machines cannot be cross-examined.

What happens with some of these cases, is the car essentially gets ticketed, not the driver. Well IMHO, if a machine (speed camera) can't be cross examined, then it shouldn't accuse another machine (my car) of breaking the law. If you want to play that machine to machine game fine, then let my car pay the ticket and leave me alone.

But cars can't pay fines, only people. So, even though I may not have been driving, I still get the ticket and without some human in the loop, I don't have any recourse.

Say I'm on a business trip to Japan, and I get back there's a speeding ticket in my mailbox.
So if I go to court - assuming the speed camera systems allows that.

Me: Your honor, I was out of the country, I couldn't have commited this violation. See, here's my passport
Judge: Who was driving your car that day?
Me: I don't know, why don't you ask the officer who wrote the ticket?
Judge: We don't have an officer who wrote the ticket.
Cool Judge: Good Point, ticket dismissed.

But unfortunately, that only works when I have a documented alibi. But shouldn't there be some standard of proof as to who was driving. I'm sure the Speed Camera company would like to just be able to take the fine out of my account based on the license plate of the vehicle, but what ever happed to due process.

NExD: Howie Spankowitz: 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.

Yet another intellectually honest supreme court decision from a originalist justice. You libs applaud him when he sides with you but tear him apart when he doesn't fall in line with your skewed reality in the world. How this country has survived this long with you people arond is beyond me.

The same way it's survived despite people like you.

ju66l3r: When murderers start walking because some lab tech breaks down on the stand and gets his words twisted by a slimy defense attorney and a more-god-than-science jury sees "reasonable doubt" in the testimony, you'll all be sorry.

You all play the victim now, because it behooves you to treat "The State" as plaintiff as an uncaring machine that needs to be stopped from running over the innocent. When it's the guilty that start trampling your right to contain their vile activities from the rest of civilized society and you realize that "The State" is just as much YOU as the defendant, you're going to question how you ever thought making scientists take the stand was a good thing.

In other words you want convictions. To hell with truth and justice, just get convictions.

Eclectic Hedonist: Dracolich:

I know we're talking about lawyers here, and they're not as a whole the brightest bulbs in the room, but what's the difference between swearing an oath 100 miles away vs swearing it right in the courtroom? Is it so the judge can make sure you don't have your fingers crossed behind your back? There's no material difference between situations.

The difference is that you can't ask a piece of paper questions. Try it - Mr paper, are there circumstances under which the referenced tests can produce erroneous results?


See? The paper won't answer. The Lab tech, forensic pathologist, etc. will.

kevinfra: The speed camera is a machine. Machines cannot be cross-examined.

What happens with some of these cases, is the car essentially gets ticketed, not the driver. Well IMHO, if a machine (speed camera) can't be cross examined, then it shouldn't accuse another machine (my car) of breaking the law. If you want to play that machine to machine game fine, then let my car pay the ticket and leave me alone.

But cars can't pay fines, only people. So, even though I may not have been driving, I still get the ticket and without some human in the loop, I don't have any recourse.

My first thought after this SCOTUS decision was that the machines would be next.


I certainly think it's fair to make the technicians testify about the work they do. But I think they could make it easier for them to testify. For instance the tech shouldn't have to answer questions with regards to a test if all they did was follow a standard test. The tech could testfy with regards to what they did, then leave. The questions about reliability of the test could be fielded by a supervisor.

After all, if a cop stops you with a radar gun, he's not expected to personally know everything about radar guns, only what he did with one on a particular day.

Animatronik: kevinfra: The speed camera is a machine. Machines cannot be cross-examined.

What happens with some of these cases, is the car essentially gets ticketed, not the driver. Well IMHO, if a machine (speed camera) can't be cross examined, then it shouldn't accuse another machine (my car) of breaking the law. If you want to play that machine to machine game fine, then let my car pay the ticket and leave me alone.

But cars can't pay fines, only people. So, even though I may not have been driving, I still get the ticket and without some human in the loop, I don't have any recourse.

My first thought after this SCOTUS decision was that the machines would be next.


I certainly think it's fair to make the technicians testify about the work they do. But I think they could make it easier for them to testify. For instance the tech shouldn't have to answer questions with regards to a test if all they did was follow a standard test. The tech could testfy with regards to what they did, then leave. The questions about reliability of the test could be fielded by a supervisor.

After all, if a cop stops you with a radar gun, he's not expected to personally know everything about radar guns, only what he did with one on a particular day.

He is expected to know how and when to calibrate the machine. He's also expected to testify as to how he KNOWS it was your car speeding rather than one of the other fifteen cars in sight at that time.

What the fark is wrong with you people, this is a terrible thing.

OH YAY, WE WONT GET PROSECUTED FOR POT ANYMORE!!!1!!1!!!11

Bad thing: "I think the effect of this could be very, very bad for public safety," said Fairfax Commonwealth's Attorney Raymond F. Morrogh. "If we are not able to use this evidence, which is reliable, but it's excluded because we can't get the technician here, the guilty will go free. .



So tell me where it's a good thing?

kevinfra: The speed camera is a machine. Machines cannot be cross-examined.

What happens with some of these cases, is the car essentially gets ticketed, not the driver. Well IMHO, if a machine (speed camera) can't be cross examined, then it shouldn't accuse another machine (my car) of breaking the law. If you want to play that machine to machine game fine, then let my car pay the ticket and leave me alone.

But cars can't pay fines, only people. So, even though I may not have been driving, I still get the ticket and without some human in the loop, I don't have any recourse.

Say I'm on a business trip to Japan, and I get back there's a speeding ticket in my mailbox.
So if I go to court - assuming the speed camera systems allows that.

Me: Your honor, I was out of the country, I couldn't have commited this violation. See, here's my passport
Judge: Who was driving your car that day?
Me: I don't know, why don't you ask the officer who wrote the ticket?
Judge: We don't have an officer who wrote the ticket.
Cool Judge: Good Point, ticket dismissed.

But unfortunately, that only works when I have a documented alibi. But shouldn't there be some standard of proof as to who was driving. I'm sure the Speed Camera company would like to just be able to take the fine out of my account based on the license plate of the vehicle, but what ever happed to due process.

You as the owner of the vehicle are liable for your vehicle, just as if the vehicle had been in an accident without you driving, it would be your insurance. Most likely they would also as who has keys for your vehicle and assume that it was a wife or kid or someone you authorized to use the vehicle that was driving it, otherwise there would be a police report stating that the vehicle was stolen.

griffer: Ryan2065: Now, fast forward a year later (that's 780 cases later) do you really think the tech will remember the specifics of the case?

07-24-2007
Case # 1,234,212
Victim: White female
Name: Unknown
Age: 20-25


10:47- I sneezed, but turned my head exactly 87 degress to the right, covered my nose and mouth. Involuntary muscles caused my eyes to close, that plus the angle of my head meant that the decedant was out of sight for 2-3 seconds. Changed gloves.

10:52- My wife changed detergent, and I believe the new formulation is a skin irritant which is causing my scrotum irritation. I just scratched my balls. Decedant remained in sight. Changed gloves.

10:58- Descedant was a healthy blond woman. Evidence of high quality plastic surgery found in her perfect breasts. Identifying marks: Tattoo on the small of her back, and another on her ankle. Multiple ear piercings, as well as her tongue and clitoral hood. Sctoru still itches. Body not leaving my sight. Gloves changed.

11:07- Stil visually examining the body. She was very attractive. Oops. Changed gloves.

This is the thread winner, right here.

Loadmaster: dragyne: I'd rather let a million murders free than convict an innocent man

So you'd prefer to risk the lives of maybe another million potential victims for the sake of one innocent man. Solid numerical reasoning.

Justice isn't about numbers.

dragyne: I'd rather let a million murders free than convict an innocent man

Loadmaster: So you'd prefer to risk the lives of maybe another million potential victims for the sake of one innocent man. Solid numerical reasoning.

Millennium: Justice isn't about numbers.

Apparently not.

I'm reminded of what Isaac Asimov wrote in Foundation (paraphrased):
"Don't let your laws and ethics get in the way of doing what's right."

kevinfra: Judge: Who was driving your car that day?
Me: I don't know, why don't you ask the officer who wrote the ticket?Your honor, the question is more properly one to ask of the procecution since it is their job to bring forth defendants in front of this court. I am only obligated to answer for my actions and have shown that it was not I that was driving the car. The procecution must retun to the investigatory part of the process and find another defendant.

FTFY

Ziploc'd Oreos: What the fark is wrong with you people, this is a terrible thing.

OH YAY, WE WONT GET PROSECUTED FOR POT ANYMORE!!!1!!1!!!11

Bad thing: "I think the effect of this could be very, very bad for public safety," said Fairfax Commonwealth's Attorney Raymond F. Morrogh. "If we are not able to use this evidence, which is reliable, but it's excluded because we can't get the technician here, the guilty will go free. .



So tell me where it's a good thing?

As Ben Franklin said, better many guilty go free than ONE innocent locked up.

The difference is that you can't ask a piece of paper questions. Try it - Mr paper, are there circumstances under which the referenced tests can produce erroneous results?

///

I know of a towel that will talk to you, of course you may not like some of the information it divulges in court. :)