How many products these days claim to be “scientifically proven”? Proven to kill 99% of all germs. Eliminating 95% of all odors. Clinically proven to smooth wrinkles, or shrink your belly. How much “faith” can we put into these scientific claims? It depends on who is making the claim, right? Is it the doctor that conducted the study? Or, is it a janitor who got a good night sleep at a Holiday Inn Express?
Typically, our court system has done a decent job of keeping out scientific evidence that cannot be substantiated. The main vehicle for testing scientific assertions is cross examination. When a prosecutor presents a witness who makes scientific claims, we defense attorneys are able to cross examine this witness to test accuracy. At times, legislatures have tried to help prosecutors by passing laws that permit scientific assertions without the need to back up the claim with live scientific testimony. The United State Supreme Court has struck down these government attempts to insulate scientific conclusions from cross examination from folks like me. For example, Massachusetts passed a law permitting prosecutors to introduce lab reports as proof of a drug’s identity. (See Melendez-Diaz v. Massachusetts, 557 U.S. 1256 (2009), my article on this issue can be found here). The Supreme Court struck down this law, finding such a maneuver unconstitutional. In essence, the prosecutor is not permitted to introduce a piece of paper from a laboratory as proof of a substance’s identity (cocaine, or heroin, for example). They must present a scientist who knows something about the science underlying the lab report. Then, the lab report is admissible.
When prosecutors were unable to identify “cocaine” by simply presenting a piece of paper from a laboratory, the prosecutors decided they would call laboratory employees to the stand to testify as to what the lab does, etc etc. They would bring in anyone to testify. The receptionist from the lab, for example—rather than an actual scientist—so as to prevent defense attorneys from cross examining someone who understands the science. Without meaningful cross examination, why not believe an official looking document like a lab report? In other words, some prosecutors don’t want their “science” to be challenged, so they present witnesses who cannot not answer scientific questions on cross examination. Once again, the Supreme Court stepped in and, in the case of Bullcoming v. New Mexico, the Court held that such a tactic was unconstitutional (131 S. Ct. 2705 (2011), you can find my article on this issue here). In order to admit a scientific document into evidence, the prosecutor must present the scientist responsible for creating the document (or, at least somebody who knows something about it). With this in mind, let’s take a look at what prosecutors in Florida are trying to get away with in dirty urine violation of probation cases. Continue Reading