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.