Quality Control in an Era of Confrontation

The Sixth Amendment of the United States Constitution provides that “[i]n all criminal prosecutions” the accused shall “be confronted with witnesses against him.”[1]  As with all reserved rights, the question arises as to what degree and in what context a defendant may exercise this and other rights.  The United States Supreme Court declared between two cases – Bullcoming v. New Mexico[2] and Melendez-Diaz v. Massachusetts[3] – that “testimonial” evidence includes a sworn report submitted by a lab technician describing the results of laboratory drug tests.[4]  Applying this standard excludes a laboratory report submission under hearsay when a witness is unavailable and the defendant has not had a prior opportunity to cross-examine.  Therefore, a laboratory report prepared in anticipation for prosecuting a defendant requires the prosecution to produce the lab technician who performed the tests for cross-examination.  A certified report from a laboratory will not suffice to secure its admission at trial.

With the requirement that a lab technician testify in court to the results they generated, it creates an opportunity to vet the quality control mechanisms and techniques used by laboratories.  This issue is particularly salient owing to the consequence of recent problems with state drug labs.  In Massachusetts, where Melendez-Diaz initiated, the State recently indicted Annie Dookhan, a former state chemist, for allegedly falsifying drug lab results, using improper laboratory methods, and concealing exculpatory information.[5]  Several convictions have been overturned as a consequence.  Massachusetts believes as many as 40,000 drug and related cases may have been implicated by her actions.  And in the late 1990’s, prosecutors in Prince George’s County, Maryland opted to drop drug cases when it was ordered to turn over detailed information about its testing protocols and then later had to shut down its drug lab for a period of time following evidence of a pattern of poor quality control and mismanagement.[6]

The zealous criminal defense attorney must be aware of the shortcomings represented by a state’s selected technique.  In certain instances, the probative value of certain drug tests may be outweighed by inherent error rates presented to a point that no judge could render a judgment on its merits.  For instance, with respect to urinalysis, there have been situations where two opposite results have been produced for a court by the same citizen on the same day.[7]  This represents a situation with no indication of human error or malice, even though such could occur in other situations.  This is why criminal defense attorneys must understand the whole picture of events and circumstances that may influence laboratory results.  This includes, among other things, the following:

·      Collection of Evidence

The results of field samples may be insufficient or spoiled on account of the size, collection, storage, or transport.  All steps in that process represent a means to damage or spoliate a sample depending upon the type of drug.

·      Chain-of-Custody

A busy crime lab shares all the same challenges as with any overburdened organization.  There is the chance owing to human error that a sample collected is not that which is ultimately tested.  Or a sample got mixed with another sample.  Or the evidence was never actually near the crime scene during the alleged period of time during the crime.  These are the possibilities created by poor chains of custody that can be overlooked without aggressive review of evidence custody.

·      Procedures for Subsampling

In drug cases, a lab technician may conduct an analysis on a portion of a larger sample.  When the quantity of drugs seized increases the sentence imposed, it requires the prosecution to show beyond a reasonable doubt that the larger quantity is in fact contraband.  In a scientific process such as drug testing, the sufficiency of a sample does not necessarily represent a proof.  This is especially true when a laboratory employs deficient techniques that undermine the results of the sample used.  In either case a risk exists that a criminal defense attorney should raise at trial to undermine a technician’s credibility or through a pretrial motion seek to suppress its admission until sufficient tests are conducted.

·      Human Bias and Standards

First, the results of a test may require subjective interpretation and lead to confirmation bias or misinterpretation.  For instance, often when cocaine is tested a sample is run through a gas chromatography-mass spectrometry machine that produces a spectrum that requires subjective judgment as to the results.  The machine does not provide a yes or no answer.  Instead, it must be compared against a scientific standard that is identifiable and repeatable.  A statement from a technician that they are relying on their observational judgment that is informed by experience is insufficient.  In short, do not let judgments based on intuition go without being cross-examined.

Second, when a lab technician claims to have applied proper scientific standards, it represents an opportunity for the criminal defense attorney to vet the technician’s knowledge of the process used, best practices for that technique, and developments of alternative standards that could be more accurate.  In many laboratory testing techniques, the slightest deviation in protocol and methods, such as setting the temperature of a machine a few degrees lower, may be outcome determinative as to whether accurately determining if a substance is what it is claimed.  If the technician cannot explain what the protocols he or she employed or defend its accuracy, then it calls into question the veracity of results generally and admissibility of the technician’s testimony.

The emerging use of the confrontation clause represents an opportunity to hold prosecutors to their burden.  It is easy and in part natural to assume that laboratory techniques applied are valid and conducted by experts.  Nonetheless, the standards applied in drug and forensic cases are subject to a range of quality control problems that are technical and human in quality.  It is for these reasons criminal defense attorneys must be aware of the underlying scientific strengths and weaknesses presented to fully use the confrontation clause.

Joe Hernandez

Executive Editor, Criminal Law Practitioner

---

[1] U.S. Const. amend. VI.

[2] 131 S. Ct. 2705 (2011).

[3] 557 U.S. 305 (2009).

[4] See also Crawford v. United States, 541 U.S. 36 (2004) (holding that “testimonial” evidence occurs when a statement will or is expected to be used in a prosecution).

[5] David Abel, John Ellement, & Martin Finucane, Annie Dookhan, Alleged Rogue State Chemist, may have affected 40,323 People’s cases, review finds, Boston Globe, Aug. 20, 2001, at Metro Desk, available at http://www.boston.com/metrodesk/2013/08/20/annie-dookhan-alleged-rogue-state-chemist-may-have-affected-more-than-people-cases-review-finds/asc53OgqHcQFEik4MLRpgI/story.html.

[6] Ruben Castaneda, Drug Case Dropped After Ruling on Lab, Wash. Post, Nov. 23, 1999, at B1.

[7] Graham v. Wilson, No. CAL12-17694 (Md. Cir. Ct. 2012).