Chicago DUI lawyer wonders why prosecutors are worried about having crime lab analysts testify

Last week I posted on the Supreme Court's recent decision to require lab analysts to testify in line with the Confrontation Clause of the Sixth Amendment, now prosecutors are concerned about abiding with the law.

July 27, Chicago, Il

Some prosecutors have said they fear the uncertainty -- and the potential cost -- of being required to have lab technicians ready to testify.

"This is a train wreck in the making," said Scott Burns, executive director of the National District Attorneys Association. "The court is saying you can't submit an affidavit saying that the cocaine is cocaine. The criminalist must be there to testify the cocaine is cocaine. Particularly in rural states and in smaller communities, this is going to be a major problem."

The Supreme Court's decision also raised questions. For example, is the required witness the lab technician who ran an evidence sample through a machine, or the expert who programmed or calibrated the machine?

It is also not clear what happens in cases where the lab expert is not available.

"What are you supposed to do if your ballistic expert moved from Cleveland to Phoenix prior to the trial?" Burns said.

Stanford University law professor Jeffrey Fisher, who won the case before the high court, said states such as California and Illinois routinely bring crime experts to trials. Other states require prosecutors and defense lawyers to agree in advance what kinds of evidence will be submitted.

"It may take a little while, but people will figure this out," Fisher said.

Some defense lawyers predicted the impact of the ruling would be minimal.

"It will be the rare case where this comes into play," said Steve Benjamin, a criminal defense lawyer in Richmond, Va. "It will be unusual for a defense lawyer to insist on live testimony. All you are doing in those situations is emphasizing the evidence that incriminates your client."

He and other defense lawyers, however, stressed that crime labs have made mistakes that sent innocent people to prison. In some cases, they said, it is crucial to question a crime lab expert to expose doubts about the evidence.

Anyone else find it interesting thatthe government complains about the law of the land?