Illinois Bar Journal

October 2009Volume 97Number 10Page 490

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U.S. Supreme Court: Confrontation Clause requires lab analysts to testify

Prosecutors can’t rely on lab reports alone, the Court rules. But ISBA lawyers disagree about how much impact the ruling will have in Illinois.

A recent decision from the U.S. Supreme Court has mainstream and legal publications alike reporting dire predictions for the future of the criminal justice system from some prosecutors and criminal defense attorneys. States are particularly concerned about their prosecutions of alcohol and drug-related cases, with Virginia going so far as to call a special session to amend its statutes.

In Melendez-Diaz v Massachusetts, No 07-591, 129 S Ct 2527 (2009), the court held that laboratory analysts must testify at trial about their reports concerning blood, breath, or other forensic evidence, and that the common prosecutorial practice of simply introducing affidavits from those scientists to substantiate those reports is not sufficient. The court based its holding on the Confrontation Clause of the Sixth Amendment to the U.S. Constitution, which guarantees criminal defendants the right to be confronted with the witnesses against them.

People v McClanahan

Doomsayers are fretting that the holding will cause the criminal justice system across the country to come to a grinding halt or, at least, result in the dismissals, continuances, or more than usually favorable plea-bargains of thousands of cases. Two experienced Illinois practitioners, one prosecutor and one defense attorney, see no such scenario for our state in the opinion’s wake. But the lawyers diverge in their views of whether and to what extent Melendez-Diaz may affect Illinois jurisprudence.

Springfield lawyer Edwin Parkinson, a former state’s attorney who now prosecutes cases as a member of the Special Prosecution Unit of the Illinois State’s Attorneys Appellate Prosecutor’s office, opines that Melendez-Diaz will have no effect in Illinois. Parkinson bases his view on a case decided nearly a decade ago by our own supreme court, People v McClanahan, 191 Ill 2d 127, 729 NE2d 470 (2000).

At issue in McClanahan was 725 ILCS 5/115-15, which allowed the state, in certain prosecutions, to use laboratory reports instead of actual testimony as prima facie evidence of the contents of the substance at issue unless the defendant filed a demand for the testimony of the witness who prepared the report. The statute required the defendant to file the demand within seven days of receiving the report.

The Illinois Supreme Court held section 115-15 unconstitutional under the Confrontation Clauses of both the U.S. and Illinois Constitutions. The court said the statute “impermissibly requires a defendant to take a procedural step to secure his confrontation rights or be deemed to have waived them, and does not require that the waiver of this fundamental constitutional right be a knowing, intelligent, and voluntary act.” Mc-Clanahan at 140, 729 NE2d at 478. Though the statute remains a part of the Code of Criminal Procedure, Parkinson says it’s no longer used as a result of the McClanahan opinion.

Parkinson also observes that Illinois’s criminal justice system did not break down in the wake of the decision requiring laboratory scientists to testify con cerning the evidence they have analyzed. Indeed, he says that from a prosecutor’s perspective, “McClanahan did not dramatically change things in Illinois. We make sure that all lab notes are kept and ensure that once a case has begun, we keep in touch with the scientists up through trial, including making sure that they’re available to testify in person at trial. If someone moves or retires, we take an evidence deposition to preserve their testimony.”

Must breathalyzer inspectors testify?

Like Parkinson – and, indeed, like the Melendez-Diaz Court itself (see case footnotes 10 and 12) – Wheaton lawyer Donald Ramsell rolls his eyes over the hand-wringing that criminal courts will collapse if forensic scientists are routinely required to testify. But Ramsell disagrees that Melendez-Diaz will have no effect on Illinois law. To the contrary, and somewhat ironically, Ramsell believes the case has effectively overruled McClanahan.

Ramsell founds his interpretation on the Melendez-Diaz Court’s stated approval of notice-and-demand statutes that, like section 115-15, require defendants to give notice to the prosecution of their intent to confront the laboratory analysts. Said the court, “Contrary to the dissent’s perception, these statutes shift no burden whatever. The defendant always has the burden of raising his Confrontation Clause objection; notice-and-demand statutes simply govern the time within which he must do so. States are free to adopt procedural rules governing objections.” Id, 129 S Ct 2541. With this language, Ramsell believes that the court has effectively disagreed with the Illinois Supreme Court’s holding in Mc-Clanahan.

Will Illinois’s courts agree with Ram-sell’s view? Ramsell doesn’t venture to predict how any court, much less the supreme court, might rule. But he does suggest that a prosecutor might seek to employ section 115-15 in a trial court proceeding and then, if the court rules adversely based on McClanahan, file a mandamus action in the Illinois Supreme Court. He also suggests that the legislature might simply re-pass the statute.

Ramsell, who focuses his practice on DUI law, also suggests that Melendez-Diaz leaves open whether the testimony of those who inspect breathalyzer machines for accuracy must testify in cases involving results from those machines.

Though the Melendez-Diaz court said in a footnote “we do not hold…that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case” (footnote 1), Ramsell argues that “a breathalyzer operator, who has no clue how the machine works or whether it’s been properly maintained, is not an adequate witness to satisfy the Confrontation Clause” in DUI cases.

Helen W. Gunnarsson is an attorney and writer in Highland Park. She can be reached at

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