Bill of Rights (From public domain.)

Five years ago, the U.S. Supreme Court decided Crawford v. Washington, 541 U.S. 36 (2004). For testimonial evidence, Crawford scrapped the rule of Ohio v. Roberts, 448 U.S. 56 (1980), that the Sixth Amendment right to confront one’s accusers does not preclude unavailable witnesses’ hearsay so long as said hearsay bears adequate indicia of reliability. Crawford applies to testimonial evidence, and has generated substantial litigation over determining what evidence does and does not qualify as testimonial.

The twenty-four-year period between 1980’s abysmal Ohio v. Roberts and 2004’s wonderful Crawford v. Washington saw repeated erosion of Fourth Amendment rights that had been better protected under the Warren Court, before Richard Nixon nominated Warren Burger as chief justice and added Justice William Rehnquist to the court, followed by Reagan’s adding Justice Scalia, Bush I’s adding Justice Thomas, and Bush II’s adding Justice Alito and Chief Justice Roberts.

Even in the darkness of four justices who repeatedly pen and join opinions that take dangerously crabbed views of the Constitution’s guarantees of individual liberties — Chief Justice Roberts, and Justices Scalia, Thomas and Alito — even those four sometimes get it right, but not always as a unified team.

Justice Scalia penned Crawford.  Yesterday, Justice Scalia penned the opinion that confirms Crawford is alive and well, requires that Crawford be followed full strength by trial and appellate judges, and prohibits chemists’ written analyses from coming into evidence at trial when the chemist is absent and the defense objects, because such analyses are testimonial hearsay. Melendez-Diaz v. Massachusetts, ___ U.S. ___ (June 25, 2009).

Websites and attorney listservs are all abuzz about Melendez. Here are some of the main benefits of Melendez to my clients:

– Melendez is not met merely by giving the defense the opportunity to summons drug chemists, in part because the defense might be in a pickle if the chemist simply does not honor the subpoena or tries to avoid the subpoena by successfully asking permission from the court to do so (e.g., so as to appear at another court for trial, to be in training, or to be on vacation). Melendez, slip op. at 18-19.

– Chain of custody logs and all other chain of custody hearsay for drug cases and all other criminal cases are inadmissible at trial without the testimony of the people in the chain, unless the defense consents otherwise. Melendez, slip op. at 5, n.1.

– For such jurisdictions as Virginia that until yesterday treated breathalyzer test results as non-testimonial, clearly they are. Now, I no longer need to subpoena breath test technicians to trial in Virginia; that burden has shifted to the prosecution in order for the prosecutor to try to get the breath test results admitted into evidence.

Melendez says that Crawford already shows that drug certificates of analysis are testimonial evidence. If so, why did so many judges refuse to treat such certificates of analysis as testimonial evidence? Is it because they sided more with Melendez‘s four-justice dissent? Is it because they thought the Supreme Court might make an exception for certificates of analysis when realizing how costly it would be to bar the admission of certificates of analysis without live evidence? Is it because some lower court judges knew exactly what Crawford said, but decided to see if the Supreme Court would call them on it?

Now, any time trial or appellate judges hem and haw that the Supreme Court could not have meant this or that in a Supreme court opinion that confirms sweeping rights for criminal defendants, a great response is to whip out Melendez and say: "Melendez tells judges not to make the Supreme Court remind them more than once of their obligations to obey Supreme Court rulings." Jon Katz.