Melendez-Diaz Confronts the 6th Amendment

Prospective clients frequently call to ask whether it’s possible to appeal their convictions based on the Supreme Court’s ruling in Melendez-Diaz. In Luis E. Melendez-Diaz v. Massachusetts, 557 U.S. ___ (2009) [No. 07-591. Argued November 10, 2008-Decided June 25, 2009], the Court held that a defendant has a due process right, under the Confrontation Clause of the Sixth Amendment, to confront and cross-examine lab technicians, analysts, medical examiners, or other expert witnesses, rather than simply allowing the prosecution to submit their expert certificates, like drug reports, in place of their testimony. Comparing such reports to the testimonial statements described in Crawford v. Washington, the Court’s seminal case about one’s Constitutional right to confront witnesses, the Supreme Court simultaneously upheld the constitutionality of "notice-and-demand" statutes, where the prosecution is permitted to submit such certificates/evidence (without making the preparer available at trial to introduce the evidence), but only so long as the prosecution places the defendant on notice of its intention to submit such evidence without testimony and affords the defendant sufficient time and opportunity to raise any objection thereto. What this means for drug cases in general is, barring stipulation by the defendant, the prosecution can no longer simply introduce an affidavit or certificate to establish the chemical composition, weight, purity, etc. of a purported drug sample, or other analogous evidence, without either calling the actual analyst as a witness at trial and affording the defendant the opportunity to cross-examine him, or without providing proper notice of their intention not to call such witnesses and simultaneously making the same witness available to the defense. The prosecution is precluded from shifting its burden to produce such adverse witnesses onto the defendant, simply because s/he may have the discretion to call the analyst as a witness themself because, according to the Court, compulsory process does not alone equate to satisfaction of the Confrontation Clause. In other words, the prosecution must now make the analyst available to the defense at trial or forego introduction of the related evidence. What does this mean for Massachusetts? Well, earlier this year, the first appeals based upon the Supreme Court’s ruling in Melendez-Diaz were heard by the Supreme Judicial Court, where the Court somewhat limited its impact by ruling that retroactive appeals based on Melendez-Diaz will only apply from 2005 up to the Supreme Court’s ruling last year. Over the Commonwealth’s objection, the SJC also said they will permit Melendez-Diaz appeals even if the defendant failed to object to the introduction of drug certificates (without analyst confrontation) during trial. Thus, while pre-2005 cases will be excluded from review under Melendez-Diaz, and any objections to a similar issue must be made at trial to preserve the issue for appeal going forward, these decisions mean there are potentially several hundred cases here in MA now ripe for appellate-review based on Melendez-Diaz.

If you have been accused of a crime and you need a to represent you please contact Brad Bailey at 781-589-2828

About the author:

Brad Bailey was a felony prosecutor in Manhattan (NY) and an Assistant District Attorney in Middlesex County (MA), where he prosecuted murders, sex crimes and serious narcotics trafficking cases. He went on to prosecute federal drug crimes and the mafia/organized crime as an Assistant U.S. Attorney for the U.S. Attorney's Office in Boston. A six time Super Lawyer and Top 100 Trial Attorney, he is AV rated by Martindale and rated "Superb" by Avvo. Brad has been a member of the defense bar since 1999, and uses his vast experience on both sides of the law to defend clients accused of all manner of serious criminal offenses in both state and federal courts throughout, Massachusetts, New York, the greater New England Region, and elsewhere in the United States. He is widely regarded as one of