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AG wants Melendez-Diaz overturned

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The Indiana Attorney General's Office is joining several states in co-authoring an amicus brief asking the Supreme Court of the United States to modify or overturn its decision in Melendez-Diaz v. Massachusetts.

In June, the SCOTUS ruled that forensic analysts must be called to offer "testimonial evidence" about any report they prepare before it can be admitted as evidence. The Indiana Supreme Court split in its ruling in Pendergrass v. State, No. 71S03-0808-CR-445, as to whether the failure of a lab technician who processed DNA evidence to testify at Richard Pendergrass' trial violated his Sixth Amendment rights.

The majority interpreted the SCOTUS majority opinion in Melendez-Diaz, 129 S. Ct. 2527 (2009), to say that not everyone who worked on the evidence must be called and the Confrontation Clause gives prosecutors discretion on which evidence to present. The Indiana justices believed Pendergrass' right to confront wasn't violated because the lab technician's supervisor was available for cross-examination.

Indiana Attorney General Greg Zoeller believes the Melendez-Diaz precedent could possibly require prosecutors to call lab techs as witnesses in every case where crime-lab reports are relevant, causing slowdowns in trials and added expense.

"If the Melendez-Diaz precedent remains in place, the backlog of cases to be tested will only worsen and many drug charges will get dismissed because the analyst is not available to testify. This can only serve as a detriment to the judicial system and the public's safety," Zoeller said in a statement.

Stephen Johnson with the Indiana Prosecuting Attorneys Council said many issues are still up in the air on Melendez-Diaz. He believes the ruling holds that some elements of proof in a criminal case, including drug analysis, can't be proved simply by introducing a piece of paper with the results, but a "live body" will have to testify. It's who and how many will have to testify that's the issue, he said.

"I do think that some person from a lab will have to testify as to a forensic analysis absent defense waiver," he said. "We don't believe Pendergrass changes that aspect of Melendez-Diaz."

The friend-of-the-court brief filed by the states in Mark A. Briscoe and Sheldon A. Cypress v. Commonwealth of Virginia, No. 07-11191, does note that the Pendergrass ruling may help ease the burden of presenting lab analysts during cases-in-chief, regardless of whether the defendant wanted to cross examine the analyst.

Briscoe asks the SCOTUS to decide whether Mark Briscoe and Sheldon Cypress waived their Confrontation Clause rights by failing to demand that the forensic analyst be available for trial; whether the clause requires the prosecution to present the testimony of its witnesses during its case in chief; and whether the clause precludes exhibits from being introduced before the witness's live testimony.

The SCOTUS is scheduled to hear arguments in Briscoe in January 2010.

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  1. A sad end to a prolific gadfly. Indiana has suffered a great loss in the journalistic realm.

  2. Good riddance to this dangerous activist judge

  3. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  4. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  5. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

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