WASHINGTON — Until last month, the strongest evidence in drug and drunken-driving cases in courtrooms across the United States often was a piece of paper. A crime lab or Breathalyzer report would confirm that the defendant indeed had illegal drugs or a high level of alcohol in his or her system.

But last week’s U.S. Supreme Court decision has sent a jolt through that system.

Now the prosecution must make a lab technician available to testify in person if the defendant demands it. As a result, some cases have been dismissed. The state of Virginia has called a special legislative session to change its laws. And some lawyers think the ruling will have a major impact.

In a 5-4 decision, the high court said lab reports served as “witnesses” for the prosecution. And because the Sixth Amendment gives defendants a right to “be confronted with the witnesses against him,” Justice Antonin Scalia said drug defendants and others were “entitled to be confronted with the (lab) analysts at trial.”

While Scalia said the decision upheld the basic right to question the government’s witnesses, the four dissenters said the ruling had “vast potential to disrupt” the criminal courts. They also said it gave “a great windfall” to defendants, some of whom could have their cases dismissed because a lab technician was not available to testify.

Prosecutors across the country have said they fear the
uncertainty — and the potential cost — of being required to have lab
technicians ready to testify.

“This is a train wreck in the
making,” said Scott Burns, executive director of the National District
Attorneys Association. “The court is saying you can’t submit an
affidavit saying that the cocaine is cocaine. The criminalist must be
there to testify the cocaine is cocaine. Particularly in rural states
and in smaller communities, this is going to be a major problem.”

In Maine,
District Attorney Norman Croteau said cases heard in his prosecutorial districts of Androscoggin, Oxford and Franklin counties already list lab chemists on the state’s witness lists and make the technicians available for defendants to cross-examine.

However, there is a limited number of lab technicians in the state, Croteau said. “And, obviously, we’re not the only court in session at any one time,” so scheduling technicians can be tricky.

In Maine and some other states that have some form of so-called notice and demand statute, the prosecution notifies defendants if they intend to use lab results at trial, and it is the defendant’s responsibility to indicate whether they intend to confront those results. That notice of intent to confront must be filed by a certain date in advance of trial to allow the state to arrange for a lab technician to be available, allowing prosecutors to “kind of plan ahead of time so that we will have the chemist” available, Croteau said.

“Generally we’ve been able to get the chemist here if they’ve been available and have been able to get them to testify,” Croteau said. But there is a public cost to this requirement and there is the issue that if lab technicians are in court to provide testimony, they’re not in the lab testing evidence for other cases.

It is rare that such availability it actually required, said Croteau, because so many cases are resolved in plea agreements and never get to the trial stage. In addition, defendants in many OUI cases defend themselves by saying they were not driving, not that the test results were inaccurate. If the accuracy of the test is not called into question, there is no need for a lab technician to be available to testify.

Croteau said he wasn’t sure to what degree the Supreme Court ruling would change the landscape in Maine, but the Legislature may have to get involved to more clearly define Maine’s version of a notice and demand statute.

In Virginia, several judges in the past month have dismissed drunken-driving charges against motorists because technicians were not in court to testify about how a Breathalyzer was calibrated. Gov. Timothy Kaine has called a one-day special session of the General Assembly to pass a bill, similar to laws in dozens of states, that will put defendants and their lawyers on notice prior to a trial that a lab report will be submitted as evidence. The defense lawyer then would have a duty to tell prosecutors whether a lab technician must be there to testify.

The Supreme Court’s decision also raised questions. For example, is the required witness the lab technician who ran an evidence sample through a machine, or the expert who programmed or calibrated the machine?

It is also not clear what happens in cases when the lab expert is not available.

“What are you supposed to do if your ballistics expert moved from Cleveland to Phoenix prior to the trial?” said Burns, of the National District
Attorneys Association.

“We are particularly concerned about prosecuting cold cases,” said Lael Rubin, a deputy district attorney in Los Angeles. The lab experts who worked on those old crimes may no longer be available. She said the decision could force the retesting of old samples, assuming they can be tested.

Stanford University law professor Jeffrey Fisher, who won the case before the high court, said states such as California and Illinois routinely bring crime experts to trials. Other states require prosecutors and defense lawyers to agree in advance on what kinds of evidence will be submitted.

“It may take a little while, but people will figure this out,” Fisher said.

Some defense lawyers predicted the impact of the ruling would be minimal.

“It will be the rare case where this comes into play,” said Steve Benjamin, a criminal defense lawyer in Richmond, Va. “It will be unusual for a defense lawyer to insist on live testimony. All you are doing in those situations is emphasizing the evidence that incriminates your client.”

He and other defense lawyers, however, stressed that crime labs have made mistakes that sent innocent people to prison. In some cases, they said, it is crucial to question a crime lab expert to expose doubts about the evidence.

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