Court-Martial Trial Practice Blog
Here is a link to the full cert petition in Pendergrass v. Indiana. The question presented is:
Whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a nontestifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements.
Pendergrass v. State, 913 N.E.2d 703 (Ind. 2009).
STATEMENT OF THE CASE
This Court held in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), that the prosecution violates the Confrontation Clause when it introduces forensic laboratory reports into evidence without affording the accused an opportunity to “‘be confronted with’ the analysts at trial.” Id. at 2532 (quoting Crawford v. Washington, 541 U.S. 36, 54 (2004)). This case raises the question of whether the prosecution complies with that holding by introducing forensic reports through the in-court testimony of someone, such as a supervisor, who did not perform or observe the testing discussed in the reports. In this case, a bare majority of the Indiana Supreme Court upheld the practice, deepening a square conflict of authority on the issue.The Indiana Supreme Court granted discretionary review. While the case was pending, this Court issued its decision in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), clarifying that forensic laboratory reports are testimonial under Crawford. Three months later, a bare majority of the Indiana Supreme Court affirmed the court of appeals, adopting yet another rationale to justify admitting Powers’ forensic reports without calling her to the
stand. Specifically, the Indiana Supreme Court upheld the admission of Powers’ testimonial statements on the ground that “it [is] up to the prosecutors to choose among the many ways of proving up scientific results, as long as the way chosen feature[s] live witnesses.” App. 12a (citing Melendez-Diaz, 129 S. Ct. at 2532 n.1). The court noted that State introduced two live witnesses: Lisa Black, Powers’ supervisor, and Dr. Conneally, the prosecution’s genetics expert. In the Indiana Supreme Court’s view, this “sufficed for Sixth Amendment purposes.” App. 12a-13a.
The dissent accused the majority of basing its reasoning on “certain isolated passages from the Melendez-Diaz opinion” that, “taken in context,” dictated the opposite result. App. 15a-16a. In the dissent’s view, Melendez Diaz held that “a defendant has a constitutional right to confront at the very least the analyst that actually conducts the tests.” App. 19a. The opportunity to cross-examine a supervisor is “no substitute for a jury’s first-hand observations of the analyst that performs a given procedure.” App. 19a.
The petition notes a growing and deeper split over the meaning of Melendez-Diaz. And notes for example that:
In the wake of Melendez-Diaz, two state supreme courts and one federal court of appeals have held that the Confrontation Clause prohibits what might be called “surrogate” forensic testimony – that is, introducing one forensic analyst’s testimonial statement through the in-court testimony of another.
In direct contrast, three state high courts have held, based on the two distinct theories the Indiana appellate courts adopted below, that introducing one forensic analyst’s testimonial statement through the in-court testimony of another does not violate the Confrontation Clause.
The post-Melendez-Diaz conflict concerning surrogate forensic testimony deepens a pre-existing split over whether, as a more general matter, testimonial statements of a nontestifying witness can be introduced through the in-court testimony of an expert witness.
To illustrate the reason why it is necessary to have the actual personnel involved in testing testifying, the petition uses an issue from California. I think we can think of situations in military labs – Hastis, USACIL and its DNA testing.
Surrogate witnesses fail to address – and may actually aggravate – the problems posed by an analyst’s potential fraud, incompetence, or flawed methodology. A recent case from California vividly illustrates the point. In People v. Dungo, 98 Cal. Rptr. 3d 702 (Cal. Ct. App. 2009), rev. granted (Cal.
Dec. 2, 2009) the prosecution introduced an autopsy report to prove that a certain amount of time had elapsed before the victim’s death, a hotly contested issue at trial. The medical examiner who had authored the report, however, had since been fired. He had also been forced to resign “under a cloud” from another job, and was blacklisted by law enforcement in two more counties for falsifying his credentials. Id. at 704. Finally, the examiner had been known to base his conclusions on police reports instead of forensic methods. See People v. Beeler, 891 P.2d 153, 168 (Cal. 1995); Scott Smith, S.J. Pathologist Under Fire Over Questionable Past, THE RECORD, Jan. 7, 2007, available at http://www. recordnet.com/apps/pbcs.dll/article?AID=/20070107/A_NEWS/701070311#STS=g329z7h5.134t.
In light of this problematic track record, the prosecution put the medical examiner’s supervisor on the stand instead of the examiner. As the supervisor explained during the preliminary hearing, “[t]he only reason they won’t use [the examiner himself] is because the law requires the District Attorney to provide this background information to each defense attorney for each case, and [the prosecutors] feel it becomes too awkward to make them easily try their cases.” Dungo, 98 Cal. Rptr. 3d at 708 (alterations in original). The California Court of Appeal held that this surrogate testimony violated Crawford, observing that the “prosecution’s intent” had been to “prevent[] the defense from exploring the possibility that the [medical examiner] lacked proper training or had poor judgment or from testing [his] ‘honesty, proficiency, and methodology.’” Id. at 714 (quoting Melendez-Diaz, 129 S. Ct. at 2538).
So what next for court-martial cases?
/tip Professor Freidman.