The use of forensic evidence just got more complicated and more expensive—at least for a while.

In June, the United States Supreme Court issued one of its most significant opinions affecting the use of forensic science in the courtroom. In Melendez-Diaz v.Massachusetts (07-591), the majority saw a simple extension of law previously established in the case of Crawford v.Washington, a case decided in 2004 and holding that the Confrontation Clause of the Sixth Amendment guarantees a defendant’s right to confront those “who bear testimony” against him. The majority classified forensic testimony as accusatory and thus requires forensic analysts to be available for cross-examination any time their reports are presented as evidence. The Dissent however, in a 5-4 decision, was clear and piercing in its criticism of the Majority’s opinion and rationale. The Dissent charged that 90 years of jurisprudence had been reversed. By extending the confrontation clause to scientific reports previously admitted into evidence under the business records exceptions to the hearsay rule, Justice Kennedy concluded that the Majority’s decision meant the court had been misinterpreting the confrontation clause since its establishment.

Regardless of the constitutional analysis and law review articles that will be generated dissecting the legal rationale behind Melendez-Diaz, there will be nothing theoretical about the impact this decision will have on the practical administration of criminal justice systems throughout the country. In its opinion the Majority is much too dismissive of the effect its decision will have on prosecutions. The Dissent is correct when it states, “For the sake of these negligible benefits, the Court threatens to disrupt forensic investigations across the country and to put prosecutions nationwide at risk of dismissal based on erratic, all-too-frequent instances when a particular laboratory technician, now invested by the Court’s new constitutional designation as the analyst, simply does not or cannot appear.”

The defense community will certainly seek to leverage this decision in its trial strategy. It is now their right to do so. Many cases which prior to this decision would have been guilty pleas will now be announced as trials in the hope that the government will fail to produce its witness. This isn’t a new tactic. Holding the prosecution to its burden of proof is guaranteed by the Constitution. But what must be produced to sustain that burden has now changed, become more demanding and more expensive. Trials just got longer and plea negotiations just became more susceptible to gamesmanship.

From a cost perspective, the impact of this decision has the potential to be devastating. The biggest deterrent to using forensic technology to its fullest crime solving—or exonerating—capacity is cost. Increasingly, the failure to use DNA technology comes not from a lack of education nor of desire. It comes from a lack of financial resources. This decision will make DNA testing more expensive because the most variable expense component of DNA testing is the cost of labor. For a private laboratory, travel time, time testifying, lodging, etc. must all be calculated into their pricing structure. The more a prosecutor’s office has to call their analysts to testify, the more expensive every test becomes. The more expensive the test, the fewer tests that can be run. It’s a fairly simple equation. In a public laboratory context, an even simpler equation is the one that concludes: the more time an analyst spends in court, the less time they spend in the lab.