Fluent Essays

please read the instructions below! - this is an easy assignment you have to make a minimum of 7 powerpoint slides (not including title and references slides)make them look good and not very loaded with unnecessary text.include references from the article attached!!! and in text citationsForensic scientists perform the technical work of analyzing and interpreting the different types of evidence from a crime scene using scientific equipment in a laboratory to guide the investigation, allow detectives to effectively narrow their work, and ultimately hold offenders accountable.Prior to beginning work on this discussion presentation, please review the following:From the text:Chapter 5: Forensic ToxicologyChapter10: Blood and Other Biological FluidsChapter 11: DNA AnalysisThe articles:Surrogate Testimony After Williams: A New Answer to the Question of Who May Testify Regarding the Contents of a Laboratory ReportWhat Happens If Autopsy Reports Are Found Testimonial?: The Next Steps to Ensure the Admissibility of These Critical Documents in Criminal TrialsTo Analyse a Trace or Not? Evaluating the Decision-Making Process in the Criminal InvestigationExamining the Role of Science in the Courtroom: Admissibility and Reliability of Forensic Science in the CourtroomTesting the Testimonial Doctrine: The impact of Melendez-Diaz v. Massachusetts on State-level Criminal Prosecutions an ProcedureThe e-book Forensic Science Evidence: Can the Law Keep up with Science?From the video Forensic Science in Action: From Crime Scene to Courtroom: Segment 6. Forensics: Examination of the Victim 03:25You are also strongly encouraged to review the recommended sources, which may further support this discussion forum.As an intern at a Forensic Crime Scene Response Unit (CSRU) and as part of your duties, the unit manager occasionally asks you to develop presentations. This week the local chapter of the American Bar Association has requested a presentation for their quarterly professional development luncheon. You will develop a short presentation about the evolution of and impact the scientific analysis of evidence has had on both criminal investigations and at trials. You must address admissibility issues resulting from case law such as:Frye v. United States (1923)Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993)Melendez-Diaz v. Massachusetts (2009)Crawford v. Washington (2004)PowerPoint or any other presentation software may be used, especially in creating a visual presentation of your research design, but you must narrate your presentation and thus record it. You are not required to appear on camera but may choose to do so if you please. Write speaker’s notes as a script at the bottom of each slide to enable smooth narration. Narration is required. To include narration, you will need to record your presentation using Screencast-O-Matic or similar software and share a link with others. You will need either a laptop’s built-in microphone or an external microphone headset to record your voice.The following presentation resources are available in the Ashford Writing Center for you to use:How to Make a PowerPoint Presentation (Links to an external site.)Presentation Tips (Links to an external site.)The file for the presentation should be attached or embedded in your post for your peers to review, and be sure to link your screencast recording. The class has been separated into five topics. You will be assigned a topic by your last name to complete this presentation.The breakdown is as follows if your last name begins with the corresponding letterS through Z: DrugsYour presentation must address the following elements:Describe the history of the scientific processes used for your category of evidence.Describe how the science in your area has evolved.Explain the current standard for analysis included in this category.Identify any shifts in how the evidence or science is perceived.Explain how the results might be used in a criminal investigation.Explain how the results might be used at trial.Identify any challenges to having the evidence admitted at trial, specifically focusing on case law that has established standards for scientific analysis and admitting the evidence at trial.Your presentation should have a minimum of seven content slides (excluding cover and reference slides) and be at least five minutes long. Support your presentation with examples from this week’s required material(s) and/or other scholarly resources and properly cite any references either in the text, on bullet points, or in the notes section. You must use at least one scholarly or credible, professional resource to support your presentation. The presentation must include a cover slide, and a references slide for sources cited in the body of the presentation. silverman.pdf bitzer2016.pdf are_autopsy_reports_testimonial_.pdf surrogate_testimony_after_williams__a_new_answer_to_the_question.pdf Unformatted Attachment Preview TESTING THE TESTIMONIAL DOCTRINE: THE IMPACT OF MELENDEZ-DIAZ v. MASSACHUSETTS ON STATELEVEL CRIMINAL PROSECUTIONS AND PROCEDURE Valerie J. Silverman∗ INTRODUCTION ............................................................................................... 790 I. CONFRONTATION CLAUSE BACKGROUND ........................................... 792 A. Ohio v. Roberts: The Pre-Testimonial, Reliability Framework .................................................................................. 794 B. The Testimonial Doctrine ............................................................ 796 1. Crawford v. Washington: Erecting the Testimonial Doctrine ............................................................................... 796 2. Davis v. Washington: Further Defining the Testimonial Doctrine ............................................................................... 799 II. TWEAKING THE TESTIMONIAL DOCTRINE: MELENDEZ-DIAZ AND BRISCOE V. VIRGINIA ............................................................................ 800 A. Massachusetts’ Approach to the Testimonial Doctrine before Melendez-Diaz ................................................................. 801 1. Procedure for Admitting Laboratory Reports in Massachusetts Pre-Melendez-Diaz ........................................ 801 2. Case Law Interpreting Massachusetts’ Procedure Before Melendez-Diaz ........................................................... 803 B. Melendez-Diaz: Laboratory Reports Are Testimonial ................ 803 C. Virginias Approach to the Testimonial Doctrine PreBriscoe ......................................................................................... 806 1. Virginia’s Procedure for Admitting Lab Reports Before Melendez-Diaz and Briscoe ....................................... 806 2. Case law Interpreting Virginia’s Statutory Procedure Before Melendez-Diaz and Briscoe ....................................... 807 D. Briscoe: Unwilling to Upset Melendez-Diaz ............................... 808 III. IMMEDIATE IMPACT OF MELENDEZ-DIAZ ON MASSACHUSETTS AND VIRGINIA ............................................................................................. 809 A. Massachusetts .............................................................................. 809 1. Case Law Since Melendez-Diaz ............................................ 809 2. Proposed Notice-and-Demand Legislation in Massachusetts ........................................................................ 812 ∗ J.D. Candidate, Boston University School of Law, 2011; M.S., Education, Mercy College, 2007; A.B., Dartmouth College, 2004. My thanks to Professors Mark Pettit and David Rossman for their guidance, and to Sarita Frattaroli, Michael Lezaja, and the other editors and staff of the Boston University Law Review for their valuable input. I also thank my family for their support. 789 790 BOSTON UNIVERSITY LAW REVIEW [Vol. 91: 789 3. Practical Concerns in the Laboratories, Courtrooms, and District Attorneys’ Offices in Massachusetts ................. 814 B. Virginia ........................................................................................ 817 IV. GUIDANCE FROM OTHER STATES’ PROCEDURES: “THE SKY WILL NOT FALL” .......................................................................................... 820 A. Colorado ...................................................................................... 821 1. Statutory Procedure for Admitting Laboratory Certificates............................................................................. 821 2. Case Law Interpreting Colorado’s Statutory Procedure Before Melendez-Diaz ........................................................... 822 B. Ohio ............................................................................................. 825 C. California .................................................................................... 826 V. POTENTIAL NEXT STEPS FOR MASSACHUSETTS IN LIGHT OF MELENDEZ-DIAZ .................................................................................. 828 CONCLUSION ................................................................................................... 831 INTRODUCTION Boston police officers arrested Luis Melendez-Diaz and his two companions in a Kmart parking lot in 2001, after finding the men in possession of a substance that appeared to be cocaine.1 The officers submitted several bags of the powdery substance to a state laboratory for required chemical analysis.2 Melendez-Diaz was charged with distributing and trafficking in cocaine, in an amount between fourteen and twenty-eight grams.3 At Melendez-Diaz’s trial, the prosecutor submitted the seized evidence, as well as three certificates of analysis that showed the results of the forensic analyst’s tests on the substances.4 The certificates, which were notarized and signed by laboratory analysts at the Massachusetts Department of Public Health,5 stated that the substance had been analyzed and “was found to contain: Cocaine.”6 Melendez-Diaz objected to the introduction of these certificates, claiming that, under Crawford v. Washington,7 the reports could not be admitted into evidence without providing the defendant his Sixth Amendment right to confront the analyst who performed the testing.8 The 1 Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2530 (2009). Id.; see also MASS. GEN. LAWS ANN. ch. 111, § 12 (West 2006) (“The department shall make, free of charge, a chemical analysis of any . . . poison, drug, medicine, or chemical, when submitted to it by police authorities . . . provided, that it is satisfied that the analysis is to be used for the enforcement of law.”). 3 Melendez-Diaz, 129 S. Ct. at 2530; see also MASS. GEN. LAWS ANN. ch. 94C, §§ 32A, 32E(b)(1) (West 2006). 4 Melendez-Diaz, 129 S. Ct. at 2530-31. 5 This is the required procedure under MASS. GEN. LAWS ANN. ch. 111, § 13. 6 Melendez-Diaz, 129 S. Ct. at 2531. 7 See infra notes 54-66 and accompanying text (explaining the Court’s opinion in Crawford). 8 Melendez-Diaz, 129 S. Ct. at 2531. 2 2011] TESTING THE TESTIMONIAL DOCTRINE 791 objection was overruled and the certificates were introduced as prima facie evidence of the composition, net weight, and quality of the substance.9 A jury found Melendez-Diaz guilty.10 In June 2009, the United States Supreme Court heard the case and determined that lab affidavits11 are “‘testimonial,’ rendering the affiants ‘witnesses’ subject to the defendant’s right of confrontation under the Sixth Amendment.”12 Afterwards, many states, including Massachusetts, were forced to immediately alter trial procedures. This change in the law has caused confusion and frustration, and has serious implications for future state-level criminal prosecutions customarily involving laboratory reports.13 Moreover, a March 2010 report on nationwide appeals in light of Melendez-Diaz references eighty-four cases coming out of the Massachusetts Supreme Judicial Court and Court of Appeals, mostly appeals based on drug or ballistics certificates admitted without live testimony.14 Now, over a year after the decision, the legislature, District Attorney’s Offices, laboratories, defense bar, and courts of Massachusetts continue to experiment with approaches to uphold the Constitution without causing excessive workloads for analysts or trial delays. Footnotes twelve15 and fourteen16 in the Melendez-Diaz decision, in which Justice Scalia declined to define all appropriate methods of protecting the confrontation right, create openings for Massachusetts to experiment with the use of notice-and-demand statutes and circumstantial evidence in place of lab reports. Since the decision, Virginia amended its notice-and-demand statute, and Massachusetts has one still pending in the state legislature.17 Because Massachusetts was a party in 9 Id. Id. 11 I will use the terms “certificates,” “affidavits,” and “lab reports” interchangeably throughout this Note. 12 Melendez-Diaz, 129 S. Ct. at 2530, 2542. 13 Patrick Haggan of the Suffolk County District Attorney’s Office explained how “initially, in the first couple of weeks, most prosecutors were . . . wringing their hands, banging on desks, and cursing.” Patrick Haggan, Chief Trial Counsel, Suffolk County District Attorney’s Office, Remarks at the New England Journal on Criminal and Civil Confinement Fall Symposium (Nov. 13, 2009) (transcript available in the New England School of Law library) [hereinafter Haggan Remarks], available at http://www.nesl.edu/ students/ne_journal_symposia.cfm; see also Molly A. K. Connors, Court Ruling Strains Mass. Crime Labs, THE METROWEST DAILY NEWS, Jan. 1, 2010, http://www.metrowestdaily news.com/news/x1444028023/Court-ruling-strains-Mass-crime-labs (explaining how, “[w]ith the added court time keeping technicians away from their labs, there are longer and longer delays in processing evidence”). 14 Jennifer Friedman, Melendez-Diaz Spreadsheet Nationwide Cases 151-227 (Mar. 2010) (unpublished chart) (on file with author). 15 Melendez-Diaz, 129 S. Ct. at 2541 n.12. 16 Id. at 2542 n.14. 17 See S.B. 106, 2010 Gen. Assem., Reg. Sess. (Va. 2010) (amending, in April 2010, 10 792 BOSTON UNIVERSITY LAW REVIEW [Vol. 91: 789 Melendez-Diaz and has not yet crafted a statute that conforms to the Court’s holding, this Note will focus primarily on Massachusetts’ reaction to the decision. Many other states, such as Virginia, are in similar positions as Massachusetts, which makes a case study on Massachusetts useful to other states attempting to comply with Melendez-Diaz. Part I of this Note will explore the historical development of the meaning of a “witness against” within the Confrontation Clause, beginning with the Ohio v. Roberts18 reliability framework, and evolving into the testimonial doctrine formulated in Crawford v. Washington19 and further defined in Davis v. Washington.20 Part II will discuss the subsequent development of the testimonial doctrine in Melendez-Diaz v. Massachusetts21 and the remanded Briscoe v. Virginia decision, in which the Supreme Court declined to disturb Melendez-Diaz or provide a rule regarding notice-and-demand statutes.22 Part III will explore the impact of the decision in Massachusetts and Virginia, and the reaction to Melendez-Diaz in these states’ legislatures and courts. Part IV will examine statutes and procedures in Colorado, Ohio, and California as examples of procedures that may effectively adhere to the Melendez-Diaz rule while maintaining a functional court system. Finally, Part V will look at the practical effects of Melendez-Diaz on Massachusetts’ criminal justice system and explore ways for the Commonwealth or other states to uphold the Constitution without crippling the system. In attempting to address the issues Melendez-Diaz left open, such as those in footnotes twelve and fourteen, states will once again diverge in their interpretations of the law. Before these issues are decided by the Supreme Court,23 however, states such as Massachusetts must turn to these openings to ease the transition. States’ procedures already in compliance with the Melendez-Diaz holding also may provide guidance. I. CONFRONTATION CLAUSE BACKGROUND Making sense of the text of the Sixth Amendment Confrontation Clause has been an ongoing endeavor. The Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”24 This right of confrontation has historical origins in Virginia’s statute); H.B. 4162, 186th Gen. Ct., Reg. Sess. (Mass. 2009). 18 448 U.S. 56, 66 (1980). 19 541 U.S. 36, 51-53 (2004). 20 547 U.S. 813, 821-22 (2006). 21 129 S. Ct. 2527, 2532 (2009). 22 See Briscoe v. Virginia, 130 S. Ct. 1316, 1316 (2010) (per curiam). 23 Currently pending in the Supreme Court is Bullcoming v. New Mexico, No. 09-10876, (argued Mar. 2, 2011), where the Court might decide whether the prosecution may, under the Confrontation Clause, introduce testimonial statements of an analyst through in-court testimony of a supervisor who did not perform or observe the laboratory analysis. 24 U.S. CONST. amend. VI. 2011] TESTING THE TESTIMONIAL DOCTRINE 793 Roman times and in the 1603 case of Sir Walter Raleigh.25 In his trial for treason, Raleigh was convicted on the basis of the out-of-court accusations of Lord Cobham, who Raleigh did not have the chance to cross-examine at trial.26 The injustice in Raleigh’s trial is still frequently referenced as underlying the purpose of the Confrontation Clause right to cross-examine witnesses against the accused.27 Justice Scalia, in recent decisions interpreting the confrontation right, has made clear that the main evil the Confrontation Clause is intended to protect against is the use of affidavits in lieu of live testimony, sometimes referred to as “trial by affidavit.”28 In fact, in oral arguments for the recently remanded Briscoe case, Justice Scalia asserted that the Confrontation Clause not only protects the reliability of the government’s evidence, but also requires the prosecution to bring in and place the witnesses on the stand at the trial of an accused.29 The meaning of the phrases “be confronted with” and “witnesses against” are up for constant interpretation and debate. The defendant has the undisputed right to come “face-to-face” with live witnesses, and, more importantly, to cross-examine these witnesses who testify for the prosecution; cross-examination in this more typical scenario amounts to confrontation.30 The trickier question, and the question raised in Melendez-Diaz, arises when hearsay is offered in the prosecution’s case against the defendant.31 The debate revolves around which type of hearsay consists of a “witness against” the 25 See Crawford, 541 U.S. at 43 (discussing the origins of the Confrontation Clause right). Raleigh closed his defense with the following statement: “You, Gentlemen of the Jury . . . if you yourselves would like to be hazarded in your lives, disabled in your posterities . . . upon an accusation not subscribed by your accuser . . . without the open testimony of a single witness, then so judge me as you would yourselves be judged.” 1 CRIMINAL TRIALS 441-42 (David Jardine ed., 1832). 26 Crawford, 541 U.S. at 43-44; see also Sherry F. Colb, The Right of Confrontation: A Supreme Court Decision Reveals Strong Schisms, FINDLAW (July 2, 2009) http://writ.news.findlaw.com/colb/20090702.html (referring to Raleigh’s trial for treason as “an outrage that was said to have motivated the creation of the confrontation right”). 27 See, e.g., Crawford v. Commonwealth, 686 S.E.2d 557, 568 (Va. Ct. App. 2009). 28 See, e.g., Crawford, 541 U.S. at 50-51 (explaining that the principal purpose of the Confrontation Clause is to prevent use of “ex parte examinations as evidence against the accused”). 29 Transcript of Oral Argument at 34, Briscoe v. Virginia, 130 S. Ct. 1316 (2009) (No. 07-11191). Justice Scalia disagreed with the lawyer on behalf of Respondents, Stephen McCullough, who claimed that the historical purpose of the Confrontation Clause is protecting the reliability of the government’s evidence, accomplished by subjecting the evidence to cross-examination. Id. 30 See Richard D. Friedman, Confrontation: The Search for Basic Principles, 86 GEO. L.J. 1011, 1011 (1998) (“Indeed, the Supreme Court has treated the accused’s right to be brought ‘face-to-face’ with the witness as secondary to his right of cross-examination.”). 31 See FED. R. EVID. 801 (defining hearsay as an out of court statement offered to prove the truth of the matter asserted by the declarant). 794 BOSTON UNIVERSITY LAW REVIEW [Vol. 91: 789 defendant under the Sixth Amendment, and thus cannot be offered into evidence without giving the accused the opportunity to cross-examine the declarant.32 A rise in prosecutorial use of forensic reports, including DNA analysis, fingerprint examination, controlled substance identification, and blood alcohol tests,33 inevitably raised the question of whether such a report is a “witness against” the defendant, and whether the Confrontation Clause requires the opportunity to cross-examine the report’s preparer.34 Melendez-Diaz answered this long-debated question, holding that such reports are testimonial, while leaving the door open to how defendants may and should secure this right.35 A. Ohio v. Roberts: The Pre-Testimonial, Reliability Framework In the 1980 Ohio v. Roberts decision, the Supreme Court set forth a framework for analyzing the interplay between the Confrontation Clause and the exceptions to the hearsay rule.36 The Court upheld the trial court’s decision allowing the prosecution to introduce hearsay statements of an unavailable witness who had testified at a preliminary hearing, reasoning that the defendant had already functionally cross-examined the witness.37 32 See Friedman, supra note 30, at 1011-12. Friedman advocates a separation between what is considered a “witness” under the Confrontation Clause and hearsay law. Id. at 1013. Furthermore, Friedman suggests that a “witness against” encompasses anyone who makes testimonial statements in court or beforehand, which is a narrower definition than hearsay, but without exceptions. Id. The definition should apply to any statements, whether made to authorities or not, against the accused. Id. at 1014. See also, Akhil Reed Amar, Confrontation Clause First Principles: A Reply to Professor Friedman, 86 GEO. L.R. 1045, 1045 (1998) (suggesting, in response to Friedman’s proposal, that “witness against” is limited to in-court testimony or government-prepared affidavits). 33 See CENSUS OF PUBLICLY FUNDED FORENSIC CRIME LABORATORIES, 2005, BUREAU OF JUSTICE STATISTICS (July 29, 2008), http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=490 (reporting that national forensic crime laboratories received evidence for 2.7 million criminal investigations in 2005). 34 See Joe Bourne, Note, Prosecutorial Use of Forensic Science at Trial: When is a Lab Report Testimonial?, 93 MINN. L. REV. 1058, 1060 (2009) (urging a “bright-line rule” wherein lab reports prepared by or for police in preparation for or investigation of a criminal trial are per se testimonial, and thus entail the opportunity for the accused to cross-examine the preparer); The Supreme Court, 2008 Term – Leading Cases, 123 HARV. L. REV. 202, 208-09 (2009) (arguing that jurors’ overreliance on forensic evidence requiring human interpretation of machine-generated reports makes such evidence “subject to the same dangers as any other type of accusatory statement from a government witness”). 35 Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2532, 2542 (2009). 36 Ohio v. Roberts, 448 U.S. 56, 62 (1980). 37 Id. at 70-73 (explaining that counsel’s questioning of the unavailable witness at a preliminary hearing was “replete with leading questions” and therefore functioned as a cross-examination). 2011] TESTING THE TESTIMONIAL DOCTRINE 795 In an effort to balance the constitutional rights of the accused with the interests of “effective law enforcement,”38 the Court acknowledged the need for a new approach to determining when the Confrontation Clause should keep hearsay out of trial.39 The Court set forth a two-pronged test of necessity and reliability that governed the admission of hearsay in accordance with the Confrontation Clause.40 Under the first prong, the prosecution had to show that the evidence was necessary and that the declarant was unavailable.41 Then, the hearsay would be admissible only if it bore “adequate indicia of reliability.”42 Evidence falling within a “firmly rooted hearsay exception,” or otherwise displaying “particularized guarantees of trustworthiness” generally ... 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