The Supreme Court was not the only court wrestling this week with the admissibility of crime-lab evidence. A day after the Justices heard oral argument in Briscoe v. Virginia, the Seventh Circuit decided United States v. Turner (No. 08-3109). Both cases put into question the vitality of Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009).
A jury convicted Turner of selling crack to an undercover police officer. The drugs were sent to the Wisconsin State Crime Laboratory, where they were analyzed by a chemist named Hanson, who confirmed that they were indeed crack. The government intended to call Hanson to testify to this effect, but she went on maternity leave before the trial. So Hanson’s supervisor, Block, was summoned instead. Based on Hanson’s notes and data, Block testified that he agreed with her conclusion that the drugs were crack.
On appeal, Turner argued that Block’s testimony violated Melendez-Diaz.
Melendez-Diaz held (on Confrontation Clause grounds) that the government may not simply submit a written report from a crime-lab analyst in lieu of calling the analyst to testify and giving the defendant a shot at cross-examination. Although Turner did not involve the use of a written report in lieu of live testimony, it is not hard to see why the defendant thought there might be a connection between the cases: in his testimony, Block relied on the data collected by another analyst, and that analyst was not made available for cross-examination. Just like Melendez-Diaz, then, Turner was denied an opportunity to cross-examine the person who was actually responsible for handling and testing the evidence used against him.
An earlier Seventh Circuit decision, United States v. Moon, 512 F.3d 359 (7th Cir. 2008), apparently supported the view that an expert witness like Block may properly rely on the information gathered and produced by a lab employee who does not testify at trial. But Moon predated Melendez-Diaz — could it be that the more recent Supreme Court decision effectively overturned Moon?
The Seventh Circuit declined to read Melendez-Diaz so expansively. The court relied on the fact that Hanson’s written report was not admitted as evidence, in contrast to the analysts’ reports in Melendez-Diaz. This may be a sensible way of distinguishing Melendez-Diaz, but I do wonder whether Turner makes it too easy for the government to circumvent the right recognized in Melendez-Diaz for defendants to cross-examine crime-lab analysts in order to expose work that was shoddy or corrupt. (Melendez-Diaz discussed at length a recent report from the National Academy of Sciences that was highly critical of crime-lab practices.) On the other hand, as I suggested in an earlier post, the Supreme Court itself may be poised to gut Melendez-Diaz in Briscoe.