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Court split on if lab tech must testify

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The state's highest court was split in its ruling on whether the failure of a lab technician who processed DNA evidence to testify at a man's trial violated his Sixth Amendment rights.

The Thursday ruling, Richard Pendergrass v. State of Indiana, No. 71S03-0808-CR-445, had the majority of justices finding the proof submitted in Richard Pendergrass' trial was consistent with the Sixth Amendment based on the recent Supreme Court of the United States ruling in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009). In that case, no witnesses were called to testify on the certificates of analysis that said the substance found in seized bags was cocaine. The SCOTUS held those certificates were testimonial and the defendant had the right to confront those who swore to the accuracy of the tests. The justices decided the DNA evidence in Pendergrass' case was also testimony as defined by Melendez-Diaz.

Pendergrass was convicted of two counts of child molesting based in part on DNA evidence showing he was the likely father of his victim's aborted fetus.

The majority - Chief Justice Randall T. Shepard, and Justices Brent Dickson and Frank Sullivan - interpreted the majority opinion in the SCOTUS ruling to say that not everyone who worked on the evidence must be called and the Confrontation Clause leaves discretion with the prosecution on which evidence to present. They believed Pendergrass' right to confrontation wasn't violated because the lab technician's supervisor, who personally checked the test results, and an expert who used that data to interpret the results were put on the stand for cross-examination during his trial.

"If the chief mechanism for ensuring reliability of evidence is to be cross-examination, Pendergrass had that benefit here," wrote Chief Justice Shepard. "... Here, the prosecution supplied a supervisor with direct involvement in the laboratory's technical processes and the expert who concluded that those processes demonstrated Pendergrass was the father of the aborted fetus. We conclude this sufficed for Sixth Amendment purposes."

Justices Robert Rucker and Theodore Boehm dissented, with Justice Rucker writing that because of Melendez-Diaz, the lab technician who performed the actual tests was also required to testify. The dissent argued the majority in the instant case relied on comments directed at a very narrow proposition concerning the chain of custody. Justice Rucker wrote the SCOTUS majority opinion says that absent a showing the analysts were unable to testify at trial and that petitioner had a prior chance to cross-examine them, the petitioner was entitled to confront the analysts at trial. There's no evidence in Pendergrass' case that the lab supervisor did anything more than "rubber stamp" the results of the lab technician's work, continued the justice.

"Although a supervisor might be able to testify to her charge's general competence or honesty, this is no substitute for a jury's first-hand observations of the analyst that performs a given procedure; and a supervisor's initials are no substitute for an analyst's opportunity to carefully consider, under oath, the veracity of her results," Justice Rucker wrote.

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  1. Good riddance to this dangerous activist judge

  2. 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.

  3. 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.

  4. 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.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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