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Supreme Court Cites Tulane Professor’s Law Review Article

June 29, 2009

Tulane law professor Pamela Metzger’s 2006 law review article was quoted by both the majority and dissent opinions in Melendez-Diaz v. Massachusetts in a 5-4 decision released by the Court on Thursday, June 25, 2009.

In 2004, the Tulane Criminal Law Clinic identified a legal question of constitutional significance:  could the State introduce a forensic affidavit in lieu of live testimony in order to prove an essential element of a crime? Although the clinic lost the case in the Louisiana Supreme Court, Tulane Associate Professor of Law Pamela Metzger remained interested in the subject continued. As the Supreme Court began to redefine its Confrontation Clause jurisprudence, she began to research the forensic affidavit question across the nation.

In 2006, Metzger published her article, “Cheating the Constitution” in the Vanderbilt Law Review (59 Vand. L. Rev. 475 (2006)). The article became the core source for a series of certiorari petitions in the Supreme Court. In 2008, the Supreme Court accepted certiorari in Melendez-Diaz v. Massachusetts for the express purpose of considering whether forensic affidavits are testimonial and thus subject to the Confrontation Clause guarantees. Metzger consulted on all of the merit’s briefs and was the lead amicus in the amicus brief filed a number of law professors.

In a 5-4 decision authored Thursday, June 25, 2009, by Justice Scalia, the Court agreed with Metzger that forensic affidavits are among the core of testimonial statements protected by the Confrontation Clause. In explaining its reasoning, the Court specifically cited her work:

Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well. Serious deficiencies have been found in the forensic evidence used in criminal trials. One commentator asserts that ‘[t]he legal community now concedes, with varying degrees of urgency, that our system produces erroneous convictions based on discredited forensics.’1 

The dissent also took note of Metzger’s article, highlighting an issue that she predicts the court will have to determine:  whether states can lawfully burden the Confrontation Clause by requiring defendants to act affirmatively in order to bring a forensic witness into court. Explained the dissent, “[e]ven what the Court calls the ‘simplest form’ of burden-shifting statutes do impose requirements on the defendant, who must make a formal demand, with proper service, well before trial. Some statutes impose more requirements, for instance by requiring defense counsel to subpoena the analyst2, to show good cause for demanding the analyst’s presence, or even to affirm under oath an intent to cross-examine the analyst.  In a future case, the Court may find that some of these more onerous burden shifting statutes violate the Confrontation Clause because they ‘impos[e] a burden . . . on the defendant to bring . . . adverse witnesses into court.’”3

Metzger says she plans to continue working on this issue. “I am already consulting with local public defenders about the legality of the Louisiana statute and will be working with the National Association of Criminal Defense Attorneys to raise and brief the burden-shifting question highlighted by the dissent.”

1 Metzger, Cheating the Constitution, 59 Vand. L. Rev. 475, 491(2006).” Melendez-Diaz v. Massachusetts, slip op. at 13.
2 See generally Metzger, Cheating the Constitution, 59 Vand. L. Rev. 475, 481–485 (2006).
3 Ante, at 19. Melendez-Diaz, Kennedy, J., dissenting 

The case can be read in its entirety here


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