Five years ago in Crawford v. Washington the Supreme Court held, in a decision written by Justice Scalia, that a defendant has the right to confront and to cross examine any prosecution witness who provides testimonial evidence. The only exception, and it is not really an exception is that statements made prior to trial, but under oath and subject to cross examination may be used at trial.

Yesterday, the Supreme Court reinforced Crawford. In Melendez-Diaz v. Massachusetts Scalia, writing for the majority, made it clear that Courts would be unable to try to weasel out of Crawford by finding evidence to be non-testimonial.

The case involved a Massachusetts statute which allowed a chemist’s certificate to be used at trial to make a prima facie showing, in a drug case that the seized substance is a particular drug. The Court ruled that the certificate, which it compared to an affidavit, was inadmissible testimonial evidence under the Sixth Amendment’s Confrontation Clause. Not only is it crucial evidence against the client but it was prepared in preparation for litigation.
Furthermore with the huge number of errors and the lack of scientific credibility for many forensic tests it is necessary to subject the chemist’s conclusions to cross examination.

The dissent claims that the chemist is not an accusatory witness and therefore the defendant need not confront him. But the Court’s opinion points out that the Sixth Amendment allows the defendant to confront all witnesses against him or her. Furthermore the dissent argues that the chemist is not a “conventional” witness. Scalia replies that it is immaterial that the witness is a scientist. He points to the large number of errors in forensic evidence. Nor is the Court concerned about any extra work that DA’s must perform to have live witnesses. When it comes to carrying out the will of the Constitution we are not concerned with extra work.