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. This is ridiculous. Most JDs not practicing law don't know squat to justify calling themselves a lawyer. Maybe they should try visiting the inside of a courtroom before they go around calling themselves lawyers. This kind of promotional BS just increases the volume of people with JDs that are underqualified thereby dragging all the rest of us down likewise.

  2. I think it is safe to say that those Hoosier's with the most confidence in the Indiana judicial system are those Hoosier's who have never had the displeasure of dealing with the Hoosier court system.

  3. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  4. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  5. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.