Supreme Court Picks Up Professor's Argument in Melendez-Diaz

November 18, 2008

The U.S. Supreme Court referenced the work of Law School Professor Brandon Garrett during oral arguments last week in a case over whether prosecutors should be obliged to produce witnesses to testify about forensic test results.

Brandon Garrett

An amicus brief based in part on Garrett's research "is filled with horror stories of how police labs or other labs have really been way off base and moreover really wrong," Justice Stephen Breyer said during the Nov. 10 arguments in Melendez-Diaz v. Massachusetts .

Garrett and Innocence Network founder Peter Neufeld are the co-authors of a forthcoming Virginia Law Review article, "Invalid Forensic Science Testimony and Wrongful Convictions," set to be published in March.

The article describes more than 130 cases in which forensic analysts testified for the state at the trials of defendants who were later exonerated by post-conviction DNA testing.

In Melendez-Diaz , a man was arrested on suspicion of cocaine possession. Laboratory tests certified that the substance seized from him was cocaine. In line with Massachusetts law, a document produced by the lab was introduced at trial to certify the test results in place of live testimony from the forensic scientists.

The defense objected, saying that the use of the form produced for trial in lieu of a live witness deprived their client of his Sixth Amendment constitutional right to confront his accusers.

In preparation for the Nov. 10 Supreme Court arguments, the National Innocence Network filed an amicus brief that includes examples from Garrett and Neufeld's upcoming Virginia Law Review article.

Garrett previously published a study of the appeals and post-conviction proceedings brought by the first 200 people exonerated by post-conviction DNA testing. Afterward, he was contacted by the National Academy of Sciences committee presently examining the needs of the forensic science community.

"They asked if I could tell them what happened during these trials. How was forensic science litigated in these innocent peoples' cases?" Garrett said.

To answer that question, he and Neufeld revisited the trial transcripts of more than 130 cases in which people were convicted, but later cleared of the crime.

"In more than half of these exonerees' cases, the forensic science testimony was invalid," Garrett said. "What we mean by that is simply that the testimony was unscientific or contrary to empirical data. Just because a wrong statistic was offered, though, does not mean that the testimony necessarily caused the wrongful conviction. These examples do suggest the importance of studying what forensic scientists say at trial, and they point to a need for scientific standards in the area."

The Innocence Network brief connected those examples to the Sixth Amendment problem, arguing that "given that such mistakes, omissions and overreaching are precisely the sorts of errors confrontation is designed to deter and expose, exempting forensic evidence from the rigors of confrontation would only exacerbate these problems."

Though the wrongful conviction cases they examined did not involve the type of drug testing done in the Melendez-Diaz case, cross-examination of forensic experts was an important aspect in some of the trials.

"In some of our cases, cross-examination was actually successful at correcting the record at trial. If an analyst gave the wrong statistic, sometimes on cross the problem was cleared up. Of course, in many other cases cross examination did not bring the inaccuracy to light," Garrett said.

The Innocence Network brief argued that "while no procedural mechanism could ever ferret out every bad practice and erroneous test result, applying the confrontation guarantee as described in Crawford to reports of state forensic examiners prepared in anticipation of a criminal prosecution will go a long way towards enhancing the truth-seeking function."

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