Confronting the Forensic Facts

Melendez-Diaz has drawn the ire of prosecutors, who claim the decision creates unworkable inefficiencies in the justice system, and there is currently debate over how the ruling should be applied in lower courts. The Supreme Court recently declined to provide additional guidance in a recent confrontation clause case. See Briscoe v. Virginia, 559 U.S. ___ (2010). In Briscoe, the Supreme Court of Virginia found that a statute that allowed the defendant to call to the stand the lab technician who conducted an analysis, but allowed the prosecution to introduce the report without calling the technician in its case-in-chief, did not violate a defendant's constitutional rights. The Supreme Court vacated the decision and remanded the case for consideration not inconsistent with its decision in Melendez-Diaz.

In Melendez-Diaz, the Supreme Court cited a recent report published by the National Academy of Sciences, which found the current legal system woefully short of ensuring the reliability of forensic evidence because of a number of factors: lenient admissibility standards, deferential appellate review, limitations on the right of confrontation, and judges and lawyers who lack the necessary scientific expertise to evaluate forensic evidence. Strengthening Forensic Science in the United States: A Path Forward, Before the S. Comm. on the Judiciary, 110th Cong. 3-1 (2009) (statement of Harry T. Edwards, J., 2nd Cir., and Prof., N.Y.U.), http://judiciary.senate.gov/pdf/09-03-18EdwardsTestimony.pdf (hereinafter “National Academy Report”). By expanding the right of confrontation to require the testimony of forensic analysts under certain circumstances, the Supreme Court's decision in Melendez-Diaz addresses one of the concerns identified in the National Academy Report.

Application to Business Crimes

Ballistics, arson residue, tool marks and the like do not regularly appear in business crime cases, so how is the new jurisprudence applicable to white-collar litigation? In the electronic age, there are many types of evidence against white-collar defendants that will be affected by Melendez-Diaz. For example, determining whether a computer-generated document was altered, whether metadata is accurate, or whether an image in a photograph has been Photoshopped, are all evidentiary analyses performed by forensic analysts and thus subject to the analysts' varying techniques, equipment, training, integrity and discipline. With the right to confront forensic computer analysts, a white-collar defense attorney may be able to rebut effectively the foundation of the evidence proffered by the government.

Defense counsel can probe into issues such as whether forensic analysts took appropriate steps to insure that they did not delete data, add to data, overwrite data such as the last date of access, the author, etc., or copy data into different media. Defense counsel may also be able to attack the potential bias of a forensic analyst's assessment of computer evidence by cross-examining the analyst on her awareness of the particulars of the government's case against the defendant, or how her preconceived ideas of the defendant's wrongdoing may have influenced her conclusions. Through confrontation, the defense may also be able to uncover potential spoliation of evidence which would have otherwise gone undetected. Additionally, when the government offers testimony by just one of the forensic analysts who conducted the test, Melendez-Diaz may support a defense request to examine others in order to probe exactly what steps were taken in preparing and analyzing the evidence.

While we are not aware of Melendez-Diaz yet being applied to more than a handful of business-crime cases, we need only remember back to the early days of RICO (when it was thought RICO would apply only to organized crime) or the early days of the Sentencing Guidelines (when the white-collar bar paid too little attention as precedent was being set in drug cases) to realize that changes in forensic evidence standards will become relevant to all types of criminal law. The sooner white-collar defense attorneys proactively use the rights afforded us by Melendez-Diaz, the better positioned we will be to help shape lower courts' application of confrontation rights in a way that advances the interests of our clients.

When to Invoke the Melendez-Diaz Right to Confrontation

There is no doubt that Crawford and Melendez-Diaz give the defense certain rights. Defense counsel should think long and hard before stipulating to forensic evidence in the government's case rather than confronting the forensic analyst. Still, zealous defense attorneys should invoke the right to confrontation selectively and strategically ' only when they have a reason to question the validity of the analytic methods used. A weak cross-examination of the prosecution's forensic analyst might only serve to buttress the prosecution's case and emphasize the damaging evidence.

This means that defense counsel may need to devote significant pretrial time and effort to learning about the specific analysis of forensic or electronic evidence proffered by the government to ascertain whether confrontation will be advantageous. Obtaining access to the evidence at issue, however, may be easier said than done.

Obtaining Access to Evidence

Suppose you have a case involving the issue of whether a specific e-mail was opened by a particular individual, or at what time the e-mail was opened. For both issues, the metadata for the e-mail is vitally important. It is crucial for the defense to obtain access to the original metadata in order for it to be examined by the defense expert. Because the material is in the government's possession, the examination must either take place on government premises in the presence of a government agent, or the material must be duplicated precisely on a hard drive. Gaining direct and timely access to the relevant material may be a great challenge, particularly because in many instances a defense attorney lacks the time, financial resources, and scientific expertise to assess the material adequately. In addition, in white-collar cases, while the government may have had the evidence for months or years before it brings charges, the defense is not entitled to gain access to the evidence until after charges have been filed. Even then, the significance of the evidence may not be apparent until the government's production of “3500 material,” which generally takes place shortly before trial or before a witness testifies, at which point it is often far too late for the defense to do an effective forensic analysis of the evidence. See 18 U.S.C. ' 3500(b). Although Crawford and Melendez-Diaz allow a defendant to use his constitutional right to confront the evidence against him, the criminal discovery rules may prove a greatly limiting factor on the effectiveness of this new legal regime.

Conclusion

Now that the Supreme Court has recognized that confrontation of the prosecution's forensic analysts in this context is a constitutionally protected right of defendants, the next step may be to convince courts to make procedural accommodations to allow time so that the game of “gotcha” can yield to the Sixth Amendment. The government may need to be encouraged to provide 3500 material and expert reports earlier, along with more complete access to forensic and electronic material and the analytical methodology utilized. One possible solution would be to require any government review of evidence to be in the presence of the defense expert, so that both parties are on an equal playing field. If courts refuse to make appropriate accommodations, counsel may need to advocate for the modification of procedural rules. We should also be prepared to argue that the government's failure to provide sufficient access to forensic evidence is a Sixth Amendment violation.

Although at first blush it would appear that Melendez-Diaz does not demand much attention by the white-collar practitioner or the in-house lawyer, the decision is hugely relevant to our practices. It will only become more so as time passes.

Marjorie J. Peerce ([email protected]), a member of this newsletter's Board of Editors, is a partner at Stillman, Friedman & Shechtman, P.C., New York, NY. Elizabeth S. Weinstein is an associate at the firm.

Most matters involving white-collar investigations and prosecutions do not result in trials, so evidentiary issues are not frequently discussed in articles on business crime. A new focus on evidentiary issues, however, is warranted in light of a pair of recent Supreme Court cases built upon the Sixth Amendment's Confrontation Clause. See Crawford v. Washington , 54 U.S. 36 (2004) and Melendez-Diaz v. Massachusetts , 129 S. Ct. 2527 (2009). These two cases have given criminal defense attorneys potent new weapons to challenge forensic evidence proffered by the government ' not only the potential right to confront forensic analysts, but also the potential right to demand broader and earlier discovery so that counsel is able to make full use of the right to confrontation identified by the Supreme Court.

New Law on Forensic Evidence

Melendez-Diaz extended the Sixth Amendment's Confrontation Clause into the realm of forensic evidence. Citing Crawford, the Supreme Court held that, because of the Sixth Amendment's Confrontation Clause, a witness's out-of-court statements are inadmissible at trial unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity to cross-examine the witness. In Melendez-Diaz, the Supreme Court applied Crawford to police lab technicians, holding that the Confrontation Clause gives defendants the right, in certain circumstances, to confront those who conducted a forensic analysis offered against the defendant at trial.

Melendez-Diaz has drawn the ire of prosecutors, who claim the decision creates unworkable inefficiencies in the justice system, and there is currently debate over how the ruling should be applied in lower courts. The Supreme Court recently declined to provide additional guidance in a recent confrontation clause case. See Briscoe v. Virginia , 559 U.S. ___ (2010). In Briscoe, the Supreme Court of Virginia found that a statute that allowed the defendant to call to the stand the lab technician who conducted an analysis, but allowed the prosecution to introduce the report without calling the technician in its case-in-chief, did not violate a defendant's constitutional rights. The Supreme Court vacated the decision and remanded the case for consideration not inconsistent with its decision in Melendez-Diaz.

In Melendez-Diaz, the Supreme Court cited a recent report published by the National Academy of Sciences, which found the current legal system woefully short of ensuring the reliability of forensic evidence because of a number of factors: lenient admissibility standards, deferential appellate review, limitations on the right of confrontation, and judges and lawyers who lack the necessary scientific expertise to evaluate forensic evidence. Strengthening Forensic Science in the United States: A Path Forward, Before the S. Comm. on the Judiciary, 110th Cong. 3-1 (2009) (statement of Harry T. Edwards, J., 2nd Cir., and Prof., N.Y.U.), http://judiciary.senate.gov/pdf/09-03-18EdwardsTestimony.pdf (hereinafter “National Academy Report”). By expanding the right of confrontation to require the testimony of forensic analysts under certain circumstances, the Supreme Court's decision in Melendez-Diaz addresses one of the concerns identified in the National Academy Report.

Application to Business Crimes

Ballistics, arson residue, tool marks and the like do not regularly appear in business crime cases, so how is the new jurisprudence applicable to white-collar litigation? In the electronic age, there are many types of evidence against white-collar defendants that will be affected by Melendez-Diaz. For example, determining whether a computer-generated document was altered, whether metadata is accurate, or whether an image in a photograph has been Photoshopped, are all evidentiary analyses performed by forensic analysts and thus subject to the analysts' varying techniques, equipment, training, integrity and discipline. With the right to confront forensic computer analysts, a white-collar defense attorney may be able to rebut effectively the foundation of the evidence proffered by the government.

Defense counsel can probe into issues such as whether forensic analysts took appropriate steps to insure that they did not delete data, add to data, overwrite data such as the last date of access, the author, etc., or copy data into different media. Defense counsel may also be able to attack the potential bias of a forensic analyst's assessment of computer evidence by cross-examining the analyst on her awareness of the particulars of the government's case against the defendant, or how her preconceived ideas of the defendant's wrongdoing may have influenced her conclusions. Through confrontation, the defense may also be able to uncover potential spoliation of evidence which would have otherwise gone undetected. Additionally, when the government offers testimony by just one of the forensic analysts who conducted the test, Melendez-Diaz may support a defense request to examine others in order to probe exactly what steps were taken in preparing and analyzing the evidence.

While we are not aware of Melendez-Diaz yet being applied to more than a handful of business-crime cases, we need only remember back to the early days of RICO (when it was thought RICO would apply only to organized crime) or the early days of the Sentencing Guidelines (when the white-collar bar paid too little attention as precedent was being set in drug cases) to realize that changes in forensic evidence standards will become relevant to all types of criminal law. The sooner white-collar defense attorneys proactively use the rights afforded us by Melendez-Diaz, the better positioned we will be to help shape lower courts' application of confrontation rights in a way that advances the interests of our clients.

When to Invoke the Melendez-Diaz Right to Confrontation

There is no doubt that Crawford and Melendez-Diaz give the defense certain rights. Defense counsel should think long and hard before stipulating to forensic evidence in the government's case rather than confronting the forensic analyst. Still, zealous defense attorneys should invoke the right to confrontation selectively and strategically ' only when they have a reason to question the validity of the analytic methods used. A weak cross-examination of the prosecution's forensic analyst might only serve to buttress the prosecution's case and emphasize the damaging evidence.

This means that defense counsel may need to devote significant pretrial time and effort to learning about the specific analysis of forensic or electronic evidence proffered by the government to ascertain whether confrontation will be advantageous. Obtaining access to the evidence at issue, however, may be easier said than done.

Obtaining Access to Evidence

Suppose you have a case involving the issue of whether a specific e-mail was opened by a particular individual, or at what time the e-mail was opened. For both issues, the metadata for the e-mail is vitally important. It is crucial for the defense to obtain access to the original metadata in order for it to be examined by the defense expert. Because the material is in the government's possession, the examination must either take place on government premises in the presence of a government agent, or the material must be duplicated precisely on a hard drive. Gaining direct and timely access to the relevant material may be a great challenge, particularly because in many instances a defense attorney lacks the time, financial resources, and scientific expertise to assess the material adequately. In addition, in white-collar cases, while the government may have had the evidence for months or years before it brings charges, the defense is not entitled to gain access to the evidence until after charges have been filed. Even then, the significance of the evidence may not be apparent until the government's production of “3500 material,” which generally takes place shortly before trial or before a witness testifies, at which point it is often far too late for the defense to do an effective forensic analysis of the evidence. See 18 U.S.C. ' 3500(b). Although Crawford and Melendez-Diaz allow a defendant to use his constitutional right to confront the evidence against him, the criminal discovery rules may prove a greatly limiting factor on the effectiveness of this new legal regime.

Conclusion

Now that the Supreme Court has recognized that confrontation of the prosecution's forensic analysts in this context is a constitutionally protected right of defendants, the next step may be to convince courts to make procedural accommodations to allow time so that the game of “gotcha” can yield to the Sixth Amendment. The government may need to be encouraged to provide 3500 material and expert reports earlier, along with more complete access to forensic and electronic material and the analytical methodology utilized. One possible solution would be to require any government review of evidence to be in the presence of the defense expert, so that both parties are on an equal playing field. If courts refuse to make appropriate accommodations, counsel may need to advocate for the modification of procedural rules. We should also be prepared to argue that the government's failure to provide sufficient access to forensic evidence is a Sixth Amendment violation.

Although at first blush it would appear that Melendez-Diaz does not demand much attention by the white-collar practitioner or the in-house lawyer, the decision is hugely relevant to our practices. It will only become more so as time passes.

Marjorie J. Peerce ([email protected]), a member of this newsletter's Board of Editors, is a partner at Stillman, Friedman & Shechtman, P.C., New York, NY. Elizabeth S. Weinstein is an associate at the firm.