JACKSON —
In a case from Harrison County, the Mississippi Supreme Court has ruled on the right of a defendant to confront his accusers — a basic right in the U.S. Constitution.
Robert Jenkins wanted to question the analyst who tested the illegal drugs he was accused of possessing. Instead, prosecutors put on the stand a laboratory supervisor who only reviewed and verified the results.
The Mississippi Supreme Court ruled for the state. Its 5-4 decision is hardly indicative of how justices might rule on nearly dozen cases raising the same issue. While not settling the issue, the Jenkins decision suggests the court will look at each case separately.
The Sixth Amendment guarantees that “in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” It also addresses the rights to an attorney and a speedy trial.
Legal scholars say the right to confront witnesses has been weaker in practice as most people believe and has been trumped by state exceptions allowing secondhand testimony.
Mississippi recognizes the “tender years exception” that applies to both hearsay rules and Sixth Amendment issues. The “tender years exception” generally allows a parent or licensed professional to tell juries what abused children have told them, including descriptions of any sexual contact performed with or on the child by another person.
Jenkins was sentenced to life in prison in 2010 for possession of a controlled substance. The state Crime Lab confirmed the substance was cocaine.
Testing was done by analyst who had gone on medical leave by the time Jenkins came to trial. The analyst’s supervisor was allowed to testify instead. The supervisor testified that, based on his review of the analysis, he reached his own conclusion that the substance was cocaine.
The trial judge ruled the testimony satisfied the Sixth Amendment right to confrontation. The state Court of Appeals upheld Jenkins’ conviction last year.
Presiding Justice George C. Carlson Jr. wrote for the majority that the Mississippi Supreme Court has decided in other cases that in some instances “someone other than the primary analyst who conducted the test can testify regarding the results.”
Carlson said situations arise when a primary analyst isn’t available to testify.
“A supervisor, reviewer, or other analyst involved may testify in place of the primary analyst where that person was ‘actively involved in the production of the report and had intimate knowledge of the analyses even though (he or) she did not perform the tests firsthand,’” Carlson said.
Presiding Justice Jim Kitchens, writing for the four dissenting justices, said a supervisor who neither observed nor participated in the testing process was a “surrogate witness” for the analyst.
Kitchens said admission of the laboratory report, without a prior opportunity to cross-examine the analyst, violated Jenkins’ constitutional right to confrontation and denied him a fair trial.
Kitchens said the substance seized from Jenkins wasn’t destroyed by the testing and prosecutors could’ve requested a retest by an analyst available for cross-examination.
Kitchens said when the lab report was submitted as evidence by prosecutors, it became the equivalent of testimony and the analyst, not the supervisors, “became the witness whom Jenkins had a right to confront.”
Both sides cited the history of the issue before the U.S. Supreme Court.
The nation’s high court, in a frequently cited 2011 decision in a New Mexico case, said the surrogate testimony couldn’t convey what the original analyst knew about the tests performed.
Other justices said tests are entirely machine-run and “requiring the state to call the technician who filled out a form and recorded the results of a test is a hollow formality.”
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