On June 25, 2009, the Supreme Court handed down the 5-4 decision of Melendez-Diaz v. Massachusetts.[1] Justice Scalia’s majority opinion held that a forensic report is “testimonial” under the Confrontation Clause, and therefore, a prosecutor can only introduce such a report into evidence if the analyst who prepared the report testifies in person.[2] Justice Kennedy’s dissent not only disagreed with the constitutional analysis of the majority, but also decried the policy implications of the holding—particularly the “remarkable power” it gave to defense attorneys, who could use this requirement to their strategic advantage during plea negotiations even absent a legitimate dispute over the report’s findings.[3] Indeed, because of the burdens that the Melendez-Diaz holding potentially places on state crime labs, states have explored ways to limit that decision’s reach.  This essay explores the two such means that states have tried to date, which will constitute the next battle over the legal principles and policy implications of Melendez-Diaz.

Opponents of Melendez-Diaz seemed to move quickly to limit that opinion.  Just four days after Melendez-Diaz was handed down, the Court granted certiorari in the strikingly similar case of Briscoe v. Virginia.[4] In Melendez-Diaz, Justice Souter had been in the five-justice majority; but by the time the Court considered Briscoe, his seat on the bench would be occupied by Justice Sotomayor, who had already been nominated to fill Souter’s seat when the Court handed down Melendez-Diaz.[5] Many commentators suspected that the four dissenting justices in Melendez-Diaz granted certiorari in Briscoe in the hope that Justice Sotomayor, a former prosecutor, would part from Justice Souter’s position and vote to either overrule Melendez-Diaz or make it less burdensome on prosecutors.[6] During oral argument in Briscoe, Scalia seemed to confirm this theory; he asked, “Why is this case here except as an opportunity to upset Melendez-Diaz?”[7]

But Sotomayor did not join the Melendez-Diaz dissenters. On January 25, 2010, after full briefing and oral argument, the Court vacated and remanded Briscoe to the Supreme Court of Virginia, without opinion, to reconsider that case in light of Melendez-Diaz.[8] From oral argument, it was at least clear that Sotomayor had not been swayed by the dissenters’ practical concerns; when Virginia Solicitor General Stephen McCullough suggested that “there are several constitutional, legal, and practical considerations” at play, Sotomayor interrupted him.  “No, no. Forget the practical,” she said. “Talk about the legal, constitutional.”[9]

For the time being, then, Melendez-Diaz is safe, and the practical implications of that opinion continue to put pressure on states to limit its reach.  Yet, as Professor Darryl K. Brown and I noted in a recent essay analyzing the possible outcomes in Briscoe, vacatur would leave unanswered several conspicuous questions about the scope of Melendez-Diaz.[10] For example, Arkansas and Michigan already allow analysts to testify remotely under certain circumstances,[11] and the Virginia General Assembly recently passed similar legislation, which allows for remote testimony by the analyst if the defendant consents.[12] However, the constitutionality of this alternative to live, in-court testimony is at least questionable.  In 2002, the Supreme Court refused to transmit to Congress a similar proposed amendment to the Federal Rules of Criminal Procedure.  As Justice Scalia explained, “Virtual confrontation might be sufficient to protect virtual constitutional rights; I doubt whether it is sufficient to protect real ones.”[13]

But there exist other, more novel means of limiting Melendez-Diaz.  Two possibilities are of particular note.  First, can a state forensic lab substitute an analyst other than the report’s author to testify in court?  Second, can a statute require an analyst’s appearance only upon a showing of “good cause” or upon the defendant expressing intent to cross-examine the analyst?  Several states have adopted different positions on each of these issues, and the Court will no doubt be forced to resolve these questions.  In fact, Professor Jeffrey L. Fisher and the Stanford Supreme Court Litigation Clinic have recently filed a petition for certiorari on the first question.[14] This essay presents a brief overview of these two issues and frames the upcoming debate over the reach of Melendez-Diaz.

I. The Question of Which Analyst(s) Must Testify

While Melendez-Diaz stated that admission of a forensic report requires accompanying testimony by an analyst, the Court did not specify which analyst, or analysts, would be required to testify—although both the majority and the dissent noted the importance of this issue.[15] Melendez-Diaz begs two related questions: (1) whether a “surrogate” analyst may testify in the place of another analyst; and (2) whether only the author of the forensic report must appear in court or whether all analysts who played a role in the test must appear.

The Court may soon take up the first of these questions.  On January 19, 2010, Professor Fisher filed a petition for certiorari on the question of whether “surrogate” analysts may testify as to the conclusions of another analyst.  In the underlying case, Pendergrass v. State, the prosecution introduced an analyst’s DNA report into evidence but called the lab supervisor—not the analyst who conducted the test—to testify about its contents.[16] The Indiana Supreme Court allowed this substitution, reasoning that, where “the prosecution supplied a supervisor with direct involvement in the laboratory’s technical processes,” the witness “sufficed for Sixth Amendment purposes.”[17] Similarly, the Georgia Supreme Court has held that a surrogate analyst can endorse another analyst’s conclusions before the jury. Notably, while the Indiana court seemed to require that the surrogate be familiar with the laboratory and the analyst, the Georgia court seemed to require only that the surrogate has “reviewed the data and testing procedures to determine the accuracy” of the report such that the surrogate was not testifying to the report of another analyst, but was rather testifying to his own conclusions.[18]

By contrast, the highest courts of Massachusetts and North Carolina have held that surrogate testimony does not satisfy the defendant’s right to confront the witness.[19] The Seventh Circuit has clarified that a witness can testify based on raw data generated by another analyst, so long as he does not testify based on the conclusions of that analyst[20] and so long as the non-testifying analyst’s report is not admitted into evidence.[21]

At stake in this dispute is the control that labs have over their analysts’ time.  Under a strict reading of Melendez-Diaz, each analyst would be regularly called out of the laboratory to testify at trial.  By contrast, under the Indiana court’s rule, labs could coordinate and schedule analysts’ appearances to minimize the time each analyst spends away from the lab.  And in fact, under the Georgia court’s rule, the prosecutor could hire an independent analyst to verify and testify to the conclusions of the analyst.

Ultimately, though, the question of which analyst must appear only speaks to whether a prosecutor can substitute one analyst for another.  A much more significant issue for labs is the question of whether every analyst who participates in the test must also testify.  If the Court answered this question in the affirmative, then the burden on state laboratories would multiply.

For the moment, the Court has put off this issue. In Aguilar v. Virginia, the analyst who prepared the forensic report testified, but the defendant nevertheless objected to the admission of his report, because other analysts who had prepared the samples did not also testify.[22] Virginia’s intermediate Court of Appeals upheld the admission of the report, and the Supreme Court of Virginia declined the defendant’s appeal.  The United States Supreme Court vacated the case and sent it back to the Supreme Court of Virginia, on the same day that the Court vacated Briscoe. Little can be read from the Court’s vacatur; at the very least, it signaled the Court’s desire that the Supreme Court of Virginia evaluate this issue more carefully.

Professor Brown and I have argued that the Court should resolve the issue of which analyst must testify by clarifying the line of what aspect of the forensic report is “testimonial.”   We proposed that the Court in Briscoe declare that only the results of a test are testimonial, because they are prepared as evidence of guilt in preparation for a trial against a particular defendant; this view is consistent with prior Supreme Court jurisprudence on “testimonial” evidence.[23] But given the complex nature of some forensic tests and the number of analysts who may be involved in the preparation of a particular forensic report, this is an issue that the Court should take up squarely.  It is encouraging that the Court did not seek an easy fix by casting some broad rule or abstract principle in Briscoe.

Of course, it is beyond the scope of this essay whether the Court should ever act preemptively to set parties’ expectations on issues that might later come before it.  But the very nature of these issues should give the Court pause: a Court decision on which analysts, and how many, must later appear to testify would certainly affect how laboratories structure their laboratory tests.  For example, the Court might lay out a rule that routine maintenance reports on a machine are non-testimonial, while specific maintenance reports—such as a maintenance report prepared immediately before the test, or the same day as the test—are testimonial.  Such a ruling would certainly clarify the issue, but it would lead laboratories either to ensure that the same analysts conduct the maintenance or to forego specific maintenance altogether.  Each option would have implications for the reliability of forensic tests.  The Court should thus wait until such issues are squarely before it and parties and amici can weigh in on the policy implications of its resolution of the issue.

II. Conditions on the Right of Confrontation

The Melendez-Diaz majority declined to address the constitutionality of a second avenue that states have employed to limit Melendez-Diaz: statutes requiring the defendant to “show good cause for demanding the analyst’s presence, or even to affirm under oath an intent to cross-examine the analyst”[24] before the analyst must appear.  These “demand-plus” statutes[25] require the defendant to make some showing in addition to the demand for an analyst’s appearance in court, and at least nine states have enacted one of these statutes or a combination of the two.  These statutes were in place even before Melendez-Diaz, but that ruling puts pressure on other states to explore such a means of limiting the reach of that opinion.

This issue could be a far greater limit on Melendez-Diaz than the question of which analyst or analysts must appear.  Whereas the above issue determines how many analysts must appear, demand-plus statutes could determine whether any analyst had to appear at all.  The appeal of these statutes is obvious.  They prevent a defendant from using a notice-and-demand rule for strategic purposes without any attempt or intent to challenge the report’s results.

a.  The Requirement of “Good Cause”

Statutes that require a showing of “good cause” would particularly limit a defendant’s mischievous use of the Confrontation right.  While the Nevada Supreme Court upheld such a statute, the highest courts of four other states have struck down “good cause” statutes as unconstitutional.[26] Ultimately, the permissibility of these statutes will depend not on the principles underlying the Confrontation Clause, but on the place of cross-examination in the fact-finding process.

Even before Crawford v. Washington expanded defendants’ rights under the Confrontation Clause,[27] the highest courts of New Hampshire, Georgia, and New Jersey struck down a “good cause” requirement on an analyst’s appearance, holding that such a statute presents a constitutional “Catch-22”: in order to determine specific grounds for objection, the defendant needs to cross-examine the analyst, but the defendant can only cross-examine the analyst if he states specific grounds.[28]

Meanwhile, just last year and in light of Crawford and Melendez-Diaz, the Kansas Supreme Court struck down its similar statute.[29] Generally, the Kansas court used the same “Catch-22” argument adopted by other state courts.[30] But the court also noted the importance of cross-examination under Crawford; in Crawford, the Court stated that the Confrontation Clause requires a document’s “reliability be assessed in a particular manner: by testing in the crucible of cross-examination.”[31] Given the emphasis that Crawford placed on cross-examination, the Kansas court held that admissibility—and thus cross-examination—cannot be conditioned on a showing of “good cause” or some initial problem of reliability.  Further, the Kansas court found that since the Court in Melendez-Diaz had expressly refused to allow practical concerns to inform its decision, states cannot use scarcity of resources to justify a restriction on the Confrontation right.[32]

Despite these compelling arguments, in 2005 the Nevada Supreme Court upheld a statute that requires that the defendant establish a “substantial and bona fide dispute” of the facts of the report.[33] The Nevada court too relied on Crawford in allowing this condition.  The court reasoned, “[t]he essence of Crawford is the need for cross-examination.  If defense counsel has no bona fide dispute regarding the facts in an affidavit . . . then cross-examination is meaningless.”[34] Thus, the court found that the provision “adequately protect[s] the accused’s right to confront the witnesses against him while streamlining the trial process, serving both the interest of the accused and judicial economy.”[35]

What separated the courts that struck down a “good cause” statute and the court that upheld it is not a disagreement about the principles underlying the Confrontation Clause: both camps reasoned that the Confrontation Clause at least guarantees cross-examination.  Instead, their disagreement reflected a more nuanced view of the role of cross-examination in the judicial process.  For the New Hampshire court, cross-examination serves as the moment when the defendant can uncover problems with the report; thus, requiring a showing of “good cause” before cross-examination represents a “Catch-22.”  But for the Nevada court, cross-examination is more of a forum in which the defense brings to light issues and evidence discovered elsewhere; thus, cross-examination is “meaningless” without an existing dispute.

In any event, a requirement of “good cause” leaves intact Melendez-Diaz, but it nevertheless is an effective means to limit the number of defendants that could exercise that right.  But even if the Court does allow such a requirement, then still the Court should clarify how much “good cause” can be required constitutionally: that is, whether a defendant must present particular criticisms of an analyst, or whether it is sufficient for the defendant to present general criticisms of forensic labs.[36] The latter requirement seems a less restrictive burden on the Confrontation right.

But even a low threshold for “good cause” could have ramifications across the Confrontation Clause, and thus the Court should not adopt it lightly.  If a state could permissibly require “good cause” before a defendant could confront an analyst, then there is no reason why a state could not permissibly require “good cause” before a defendant could object to the admission of the statement of other witnesses, such as eyewitnesses.  Of course, for most witnesses, the defendant would presumably be able to point to such “good cause.”  Yet it seems troubling that the state might, at least in theory, limit a defendant’s right to confrontation by requiring an affirmative showing of good cause to confront any witness. Indeed, the allowance of such statutes would seem to mark a return to the defunct regime of Ohio v. Roberts (overruled by Crawford), which held that an out-of-court statement is admissible if it bears certain “indicia of reliability.”[37] In fact, “good cause” statutes seem to go farther than Roberts did: under Roberts, the prosecution had the burden of proving that the statement was trustworthy, but a “good cause” statute places that burden on the defendant, who must argue that the statement is not.  Then again, the fact that “good cause” statutes might apply to all witnesses does not necessarily lead to a rejection of “good cause” statutes; instead, the permissibility of such a restraint depends on the broader issue of the core of the Confrontation Clause, which is discussed in more detail below.

b. The Requirement of Intent to Cross-examine

Meanwhile, statutes that require intent to cross-examine the analyst have been more frequently upheld against constitutional challenges; only one state’s highest court, Georgia’s, has held that such a statute is unconstitutional.[38] Yet an “intent to cross-examine” requirement may not offer much protection for the prosecution.  If the requirement turned on a substantive showing by the defendant, it would be just as impermissible as a “good cause” statute.  Georgia’s court struck down such a clause for this very reason.[39] Nevertheless, any requirement of intent to cross-examine might still temper the difficulties posed by Melendez-Diaz.

There are two forms of these intent-based statutes.  First, a handful of states require the defendant merely to give notice of intent to cross-examine the analyst or to otherwise contest the report.  Arkansas requires the defendant to provide a “notice of intention to cross-examine,”[40] while New Jersey requires that the defendant’s objection to the report reveal that the report “will be contested at trial.”[41] While the New Jersey court struck down the requirement of showing specific good cause, the court did not disturb the requirement that the defendant show intent to contest the report’s contents.[42] The court noted that this did not amount to any substantive burden—rather than merely a procedural burden—on the defendant.[43]

Second, Louisiana and Alabama require that the defendant’s intent to cross-examine be in “good faith.”[44] But even this additional requirement seems to lack a real punch.  Louisiana’s intermediate Court of Appeals found that the clause generally did not require the defendant to put on any proof and was hence not “an onerous burden” on his constitutional right.[45] The court’s language suggests that if the statute did require such proof, the court would have found it unconstitutional.

Alabama’s statue offers a potential means to enforce a “good faith” requirement without running afoul of the Constitution.  Alabama’s statute requires a “good faith” intent to cross-examine, but it further provides that if the defendant “subsequently fails to conduct the cross-examination previously certified to,” the defendant must pay the costs of the analyst’s appearance.[46] This provision attempts to enforce the good faith requirement without creating a substantive burden on the defendant’s right: the test is tied to the defendant’s exercise of his right to cross-examination, rather than to any initial showing the defendant must make.

Above, this essay has already noted that these demand-plus statutes cannot be logically limited to the testimony of analysts.  If the Court finds such a statute constitutionally permissible for an analyst’s testimony, then there is no reason why the Court would not permit a statute that puts such limits on a defendant’s right to confront the declarants of other types of hearsay statements—perhaps even eyewitness testimony.  The ramifications of the Court’s consideration of demand-plus statutes thus raises the stakes of the debate, and in addressing the constitutionality of these statutes, the Court should also take up this broader issue of the core of the Confrontation right and what restrictions can be placed on it.

Overall, the permissibility of these “intent” and “good faith intent” statutes depends on the content of the Confrontation right.  Professor Brown and I previously noted that the Confrontation Clause has been read as either an active right of “cross-examination,” or as a passive right that requires the prosecution to put its witnesses on the stand—what we called a passive right to “presence.”[47] It is true that Crawford emphasized the place of cross-examination in the Confrontation right.  But elsewhere, the Court has noted other purposes of the Confrontation right, such as bringing the witness face-to-face with the defendant,[48] and the Confrontation Clause itself states the right in the passive, guaranteeing the defendant the right “to be confronted with witnesses against him.”[49] On the one hand, those states that upheld “intent” statutes followed the “cross-examination” rationale, and they thus logically allowed a statute to condition the appearance of the analyst on the defendant’s affirmative act of cross-examination.  On the other hand, if the right of Confrontation is about “presence” and requires that the prosecution put its witness on the stand, then the Constitution can tolerate no requirement of any intent to cross-examine the analyst—or even Alabama’s requirement of cross-examination in fact.

Then again, during oral argument in Briscoe, the parties brought to light some logical support for the “cross-examination” rationale.  Even Professor Richard D. Friedman, as counsel for Briscoe, acknowledged that the Constitution required very little of the prosecution during direct examination, and that it required only that the prosecutor ask, “Is this your lab report and do you stand by it?”[50] This was not lost on the members of the Court; later, when he questioned the real significance of the requirement that the prosecutor put his witness on the stand, Justice Alito drew attention to how little was required of the testifying analyst.[51] The fact that the prosecution could introduce the report through such minimal testimony suggests that it might be naïve to rely on a “presence” rationale for the Confrontation Clause, since being “confronted with” the analyst alone does not necessarily entail a detailed explanation of the report’s results, whereby the jury can evaluate them, but rather may merely involve endorsement of the report itself.  A true analysis of the report may only take place upon active cross-examination.  Still, however, the Confrontation right might serve broader, more symbolic goals in the adversarial process, and requires that the prosecution has the burden of proof and thus must bring its witnesses into court.  Nevertheless, the minimal statement required of the analyst does beg the question of whether a requirement that the analyst appear is “empty formalism,” despite the Court’s assurance in Melendez-Diaz that it is not.[52]

Conclusion

Ultimately, the Court will have to resolve each of these issues: which, and how many, analysts must testify, and whether a state can require a defendant to show “good cause” or to express intent to cross-examine before the state must present the analyst to testify.  Of these avenues, a requirement of intent to cross-examine appears to be the most constitutionally permissible, but, interestingly, it also appears to be the most problematic to enforce with any real bite.  In the end, the fate of these issues will depend on the Court’s evaluation of what testimony satisfies the Confrontation Clause and whether the clause is an active right of “cross-examination” or a passive right to the “presence” of the prosecution’s witnesses.  These issues will force the Court to consider both the boundaries of “testimonial” evidence and the content of the Confrontation right, and thus not only will help further a coherent jurisprudence under the young Crawford regime, but will also provide guidance to state policymakers about the requirements of the Confrontation Clause and the extent to which they can permissibility limit its reach.

[1] Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (June 25, 2009).

Under Crawford v. Washington, 541 U.S. 36, 51–52 (2004), the Court did not strictly set the boundaries of what statements are “testimonial,” but it did hold generally that “testimonial” statements include formal statements made to police officers and other statements intended to be used prosecutorially. The cases after Crawford, including Melendez-Diaz, have attempted to determine which statements are “testimonial” and which are not. In Davis v. Washington, for example, the Court clarified that statements are non-testimonial when “the circumstances objectively indicate that the primary purpose is to enable police assistance to meet an ongoing emergency,” while statements are testimonial “when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” 547 U.S. 813, 814 (2006).

Id. at 2556–57 (Kennedy, J., dissenting).

Magruder v. Virginia, 657 S.E.2d 113 (Va. 2008), cert. granted sub nom. Briscoe v. Virginia, 129 S. Ct. 2858 (June 29, 2009). In Briscoe, the Supreme Court of Virginia, writing one year before Melendez-Diaz, concluded that even if the analyst’s report was “testimonial,” the defendant’s right to confront the witness was satisfied by a Virginia law that allowed the defendant to call the analyst as an adverse witness during the defense phase of trial. Id. At least according to Professor Richard D. Friedman, counsel for Briscoe, Melendez-Diaz already required the prosecution to call the witness; on brief, Friedman asserted that “[t]he question presented . . . has been definitively resolved by this Court” in Melendez-Diaz. Brief of Petitioners at 12, Briscoe, No. 07-11191 (U.S. Sept. 1, 2009).

Peter Baker & Jeff Zeleney, Obama Hails Judge as “Inspiring,” N.Y. Times, May 26, 2009, at A1.

See, e.g., Posting of Lyle Denniston to SCOTUSblog, Analysis: Is Melendez-Diaz Already Endangered?, http://www.scotusblog.com/2009/06/new-lab-report-case-granted/ (June 29, 2009, 13:51 EST).  On brief, twenty-six states and the District of Columbia, arguing as amici curiae, asked the Court to overturn Melendez-Diaz outright. Brief of the States of Indiana, Massachusetts et al. as Amici Curiae in Support of Respondent at 32–41, Briscoe v. Virginia, No. 07-11191 (U.S. Nov. 2, 2009).

Transcript of Oral Argument at 55, Briscoe v. Virginia, No. 07-11191 (U.S. Jan. 11, 2010).

Posting of Richard D. Friedman to The Confrontation Blog, G . . . VR in Briscoe, http://confrontationright.blogspot.com/2010_01_01_archive.html (Jan. 25, 2010, 16:51 EST).

Transcript of Oral Argument at 32, Briscoe v. Virginia, No. 07-11191 (U,S, Jan. 11, 2010).

Stephen Wills Murphy & Darryl K. Brown, The Confrontation Clause and the High Stakes of the Court’s Consideration of Briscoe v. Virginia, 95 Va. L. Rev. In Brief 97 (2010), available at http://www.virginialawreview.org/inbrief.php?s=inbrief&p=2010/01/23/murphy_brown.

See Ark. Code Ann. § 12-12-313(e) (West 2009) (allowing remote testimony by the analyst provided “sufficient safeguards to satisfy all state and federal Constitutional requirements,” and “[a]bsent a showing of prejudice by the defendant); see also Mich. C.L.A. § 600.2167(4) (West 2009) (providing for remote testimony at a preliminary hearing).

S. 387, 2010 Gen. Assem., Reg. Sess. (Va. 2010), available at http://leg1.state.va.us/cgi-bin/legp504.exe?101+ful+CHAP0800.  A summary of the bill’s progress is available at http://leg1.state.va.us/cgi-bin/legp504.exe?101+sum+SB387.

Order of the Supreme Court, 207 F.R.D. 89, 94 (2002) (statement of Scalia, J.), available at http://www.uscourts.gov/rules/CR-26b.pdf. See Frederic Lederer, The Legality and Practicality of Remote Witness Testimony, 20 No. 5 Prac. Litigator 19, 27—29 ( 2009)  (discussing the legality of remote prosecution testimony).

See Petition for Writ of Certiorari, Pendergrass v. State, 913 N.E.2d 703 (Ind. 2009) (No. 09-__), available at http://confrontationright.blogspot.com/2010_01_01_archive.html [hereinafter “Fisher Petition”].

See Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 n.1 (2009) (“[W]e do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person.”); id. at 2544–45, 2546 (Kennedy, J., dissenting).

913 N.E.2d 703 (Ind. 2009).

Id. at 708.

Rector v. State, 681 S.E.2d 157, 160 (Ga. 2009) (citation and quotation omitted); see generally Fisher Petition, supra note 14, at 15–17 (also discussing the similar position of the Illinois Supreme Court).

Commonwealth v. Avila, 912 N.E.2d 1014, 1029 (Mass. 2009); State v. Locklear, 681 S.E.2d 293, 304–05 (N.C. 2009).

United States v. Moon, 512 F.3d 359, 362 (7th Cir. 2008), cert. denied, 129 S. Ct. 40 (2008).

United States v. Turner, 591 F.3d 928 (7th Cir. Jan. 12, 2010). Fisher concludes that the intermediate appellate courts of Texas, Michigan, and California have reached this same conclusion. See Fisher Petition, supra note 14, at 12–15 & n.3.

Aguilar v. Virginia, No. ______ (Va. Ct. App. ____), petition for appeal denied, 130 S. Ct. 1282 (Jan. 25 2010) (remanded for further consideration in light of Melendez-Diaz).

See Murphy & Brown, supra note 10, at 104.

Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 n.12 (2009).

The term “demand-plus” was coined by Pamela Metzger. See Pamela Metzger, Cheating the Constitution, 59 Vand. L. Rev. 475, 482 (2006).

At least three other states have such statutes, but their highest courts have not considered their constitutionality: Alaska Stat. § 12.45.084(d) (West 2010) (defendant must “show[ ] cause.”); Ala. Code § 12-21-302(b) (2009) (defendant must “establish[ ] a legitimate basis for the challenge”); Tenn. Code Ann. § 40-35-311(2) (West 2010).

Crawford v. Washington, 541 U.S. 36 (2004). Crawford held that all “testimonial” statements implicate the Confrontation Clause and can only be admitted if the speaker testifies in court. It overruled Ohio v. Roberts, 448 U.S. 56 (1980), which had held that out-of-court statements can be admitted without the speaker’s appearance if the statements indicate “indicia of reliability.”

State v. Christensen, 607 A.2d 952, 953 (N.H. 1992) (considering N.H. Rev. Stat. Ann. § 318-B:26-a); Miller v. Georgia, 472 S.E.2d 74, 79 (Ga. 1996) (discussing Ga. Code Ann. § 35-3-16(c)); State v. Miller, 790 A.2d 144, 156 (N.J. 2002) (discussing N.J. Stat. Ann. § 2C:35-19).

Kan. Stat. Ann. § 22-3437(3) (2009).

State v. Laturner, 218 P.3d 23, 37 (Kan. 2009).

Id. at 34–35 (quoting Crawford v. Washington, 541 U.S. 36, 61–62 (2004)).

Id. at 33 (quoting Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2540 (2009)).

Las Vegas v. Walsh, 124 P.3d 203, 208 (Nev. 2005) (citing Nev. Rev. Stat. § 50.315(6)(a)–(b)).

Id.

Id. at 209.

For studies suggesting systematic problems with forensic labs, see Jeremy W. Peters, Report Condemns Police Lab Oversight, N.Y. Times, December 17, 2009, at A33 (poor oversight of New York crime labs allowed one analyst to go undetected for 15 years while unable to operate a microscope); Brandon L. Garrett & Peter J. Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, 95 Va. L. Rev. 1, 14–16 (2009) (finding that in 60% of cases studied in which forensic analysts did testify, the analyst misused empirical data).

Ohio v. Roberts, 448 U.S. 56, 65 (1980), overruled by Crawford v. Washington, 541 U.S. 36 (2004).

Miller v. State, 472 S.E.2d 74 (Ga. 1996).

Id. at 80.

Ark. Code Ann. § 12-12-313(b) (West 2009).

N.J. Stat. Ann. § 2C:35-19 (West 2009); see also Kan. Stat. Ann. § 22-3437(3) (2009); N.H. Stat. Ann. § 318-B:26-a (2009).

State v. Miller, 790 A.2d 144, 156 (N.J. 2002).

Id.

La. Rev. Stat. Ann. § 15:501(B)(2) (2009).

State v. Matthews, 632 So.2d 294, 301 (La. Ct. App. 1993).

Ala. Code § 12-21-302(b) (2009).

See Murphy & Brown, supra note 10, at 102.

California v. Green, 399 U.S. 149, 165–68 (1970); Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2548 (Kennedy, J., dissenting).

U.S. Const. amend. VI. See Magruder v. Virginia, 657 S.E.2d 113, 130 (Va. 2008) (Keenan, J., dissenting), cert. granted sub nom. Briscoe v. Virginia, 129 S. Ct. 2858 (2009) (making this argument).

Transcript of Oral Argument at 5–7, Briscoe v. Virginia, No. 07-11191 (U.S. Jan. 11, 2010).

Id. at 27–28.

Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2537 n.6 (arguing that analyst reports are not necessarily credible, and thus requiring cross-examination is not an “empty formalism”).

Related

• Melendez-Diaz oral argument transcript (Oyez)
• Melendez-Diaz opinion (SupremeCourt.gov)
• A new limit on confrontation rights?  Argument preview of Briscoe v. Virginia (SCOTUSblog, Jan 8, 2010)

Photo by Flickr user robpastoor used under a Creative Commons license.

By IVANA DEYRUP*

I. Introduction

On June 25th of last year, the Supreme Court handed down its decision in Melendez-Diaz v. Massachusetts.[1] Justice Scalia’s majority opinion held that the admission of a drug analyst’s affidavit without live testimony over the defendant’s objection violated the Sixth Amendment’s Confrontation Clause.[2] Justice Scalia indicated that the practical effects of the decision would be limited, writing, “[T]he sky will not fall.”  However, some attorneys reached the opposite conclusion in the days immediately following the ruling.  This was especially true in states where affidavits without accompanying live testimony were a routine method of proving DUI and small-scale drug cases.  In Virginia, one Deputy Commonwealth Attorney said, “This is a devastating thing for us . . . defense counsel, at least for the next six months, are going to have a field day.”[3] Massachusetts Attorney General Martha Coakley went so far as to claim that holding drug analyst testimony subject to the Confrontation Clause would cause state misdemeanor prosecutions to “grind to a halt.”[4]

Nine months later, it appears that Justice Scalia was right—the criminal justice system continues to function.  However, there is no question that the case has been disruptive.  In Massachusetts, the average processing time for analyzing drugs jumped from 109 days in November 2008 to 177 days in November 2009.[5] Law enforcement officials are perhaps most concerned with the impact of Melendez-Diaz in cases where medical examiners are unavailable to testify as to their notes.  For example, the Third Circuit, citing Melendez-Diaz, reversed a conviction for attempted aggravated rape of an 11-year old girl because the medical examiner in the case was not available to testify at the trial and her notes were therefore held inadmissible.[6] Additionally, the costs of complying with Melendez-Diaz are significant and growing—the Chief of Law Enforcement for the Utah Attorney General wrote, “This case may well have the biggest financial impact in many years on the cost of policing and prosecution.”[7] Nevertheless, David Lowy, a Massachusetts Superior Court judge, commented at a recent conference that, “Melendez-Diaz is not the sky falling down.”[8]

The relative confidence of law enforcement officials in coping with the new Melendez-Diaz era is buoyed by the proactive measures that have been taken to limit the case’s practical effects, which include new legislation and creative methods of proving cases.  Despite these palliative measures, the questions raised by Melendez-Diaz are far from resolved, both because there will be legal challenges to these coping measures and because the holding of the case raised more legal questions than it answered. This Article will examine the major legal questions that Melendez-Diaz raised by exploring current federal and state cases on the Court’s decision.  Along the way, it will explore the practical impacts of the decision, which range from the time that will be spent resolving these legal issues to the difficulty faced by state and federal prosecutors in trying drug cases when forensic labs are overwhelmed with demands for their analysts to testify in court.  It will also present the benefits of the decision, which include allowing defendants the opportunity to challenge sometimes deficient analytic work.  The Article will ultimately conclude with the possibility that Melendez-Diaz may harm defendants in the long run, as courts accept evidence that is weaker than what they would have used prior to Melendez-Diaz to convict defendants.

II. Legal Issues Raised by Melendez-Diaz

Melendez-Diaz has created five significant legal issues that must be resolved.  First, courts are already grappling with the question of whether someone other than the analyst may testify in order to introduce the analyst’s forensic evidence in court if the defendant wishes to cross-examine a live witness.  Second, the status of statutes placing restrictions on the Confrontation Clause right was already controversial, and has only become more so after Melendez-Diaz.  Third, state and federal courts have divided over which documents can still be admitted without live testimony.  A fourth, and more easily resolved issue, is whether Melendez-Diaz applies to quasi-judicial proceedings like parole revocation hearings.  Fifth, while there has not yet been time for much litigation on the topic, there is every indication that successful attempts by law enforcement officials to reduce the practical effects of Melendez-Diaz by using circumstantial evidence and field tests to prove drug cases will be highly controversial.  This Article will address each topic in turn.

1. Which Analysts Must Testify?

Significant litigation already exists over who must testify in order to admit an affidavit from a forensic scientist into evidence should the defendant choose to exert his Confrontation Clause right after Melendez-Diaz.  There are three possible options.  First, courts could require the analyst who conducted the test to testify in order to admit his affidavit.  Alternatively, courts could hold that the analyst’s supervisor may testify in place of the analyst.  During oral arguments in Melendez-Diaz, Chief Justice Roberts recognized this possibility, saying, “I suppose it doesn’t have to be the analyst but whoever they decide to call.  So if you had a supervisor who runs the cocaine testing lab and he is the one whose report is submitted, I take it he is the one who would have to show up.”[9] Third, courts could allow someone with a reasonable nexus to the forensic evidence to testify in place of the analyst.

The second approach—allowing the supervisor of an analyst to testify in place of the analyst who actually conducted the forensic test—has gained the most initial support of courts around the country thus far.  For example, the Indiana Supreme Court in Pendergrass v. Indiana[10] upheld a conviction that was based on DNA evidence in a case where the supervisor of the DNA analyst testified in place of the technician.  In Pendergrass, prosecutors introduced two certificates signed by an analyst for the State Police Laboratory related to DNA test results. Neither certificate contained conclusions about the DNA results.  The analyst’s supervisor, who had contemporaneously reviewed the certificates, testified about how the tests were performed based upon the analyst’s notes.  The Indiana court found that under Melendez-Diaz “it [is] up to prosecutors to choose among the many ways of proving up scientific results, as long as the way chosen feature[s] live witnesses.”[11] Likewise, a California state appellate court allowed the supervisor of a nurse-practitioner to testify regarding the nurse-practitioner’s notes in a sexual assault case (although it forbade the supervisor from testifying about statements made by the victim that were included in the notes).[12] Another California appellate court came to a similar conclusion on a drug and toxicology report introduced through testimony of the analyst’s supervisor,[13] as did a California federal magistrate judge on a DNA test.[14]

Other courts seem to have adopted the third approach that anyone with a reasonable nexus to the forensic evidence may testify in place of the analyst.  For example, in People v. Benjamin,[15] a California state appellate court held that a DNA test could be admitted based on the testimony of an analyst who was a training coordinator in the lab where the test was performed.  Although the analyst had not participated in or supervised the test, the court found that she could testify about the report, the procedures used by the laboratory in preparing the test, and the accuracy of the test results.[16] A similar conclusion was reached in People v. Johnson,[17] where an Illinois state appellate court addressed the issue of whether an analyst with the Illinois State Police could testify to a report prepared by a private DNA testing facility.  The analyst had used the report from the private facility in conjunction with the State Police’s own DNA test to link a suspect to evidence left at a crime scene.  The court found that “the holding in Melendez-Diaz is distinguishable from instances in which a witness testifies at trial about scientific analyses in which he or she did not participate in the analysis.”[18] Interestingly, it is not clear who would be excluded from testifying under Johnson.  The case indicates that some circuits may hold that mere live testimony by any expert in the field is enough to admit a test result, regardless of whether that expert is actually connected with the test.

Although not a strict reading of the letter of the law laid down by Melendez-Diaz, merely requiring a live witness, whatever that witness’ nexus to the forensic test, might be sufficient to satisfy some of the practical concerns underlying the Supreme Court’s decision. As part of his rationale for Melendez-Diaz, Justice Scalia cited a recent report by the National Academy of Sciences.  That report, Strengthening Forensic Science in the United States,[19] made clear that “the state of forensic science in the criminal justice system is shockingly poor.”[20] Allowing the defense to cross-examine any expert about the affidavit of an analyst will provide the opportunity to bring out what Justice Scalia called the “[s]erious deficiencies . . . in the forensic evidence used in criminal trials.”[21]

However, allowing experts other than the analyst who performed the test to testify does not address Justice Scalia’s other major concern in Melendez-Diaz—the possibility that live testimony is necessary to force “the analyst who provides false results [to], under oath in open court, reconsider his false testimony.”[22] This concern is also drawn from the National Academy of Sciences report, which documented several cases of fraud involving forensic scientists.  Among others, the report cited a case in 1993 where a West Virginia police analyst created false evidence for criminal prosecutions.[23] Justice Scalia additionally mentioned a brief submitted by the National Innocence Network, which reported instances of “drylabbing” (or falsification of reports by forensic analysts).[24] Given these concerns, it is not surprising that at least one academic believes that Melendez-Diaz requires the analyst who conducted the test to testify in person to admit his lab results.  Richard Friedman, who writes The Confrontation Blog[25] (about, of course, a host of Confrontation Clause issues), has argued that Melendez-Diaz is the natural outgrowth of Crawford v. Washington.[26] Under that line of cases, “[a] witness has to testify about what the witness knows from personal knowledge. A supervisor can’t testify from personal knowledge to what happened with respect to a given test, unless the supervisor observed it.”[27]

The final wrinkle in this cluster of issues is the related question of how far the defendant’s right extends—can the defense claim the right to interview many people relating to the analyst’s report, or just one?  Justice Kennedy raised this question in his dissent to Melendez-Diaz. Writing for Chief Justice Roberts, Justice Breyer, and Justice Alito, Justice Kennedy said “a plausible case can be made for deeming each person in the testing process an analyst under the Court’s opinion.”[28] This suggests that under Melendez-Diaz, the defense can demand the right to cross-examine not only the analyst who conducted the test, but also the analyst’s supervisor and the lab technician who calibrated the machine.  However, in a footnote to the majority opinion, Justice Scalia wrote, “[W]e do not hold that . . . anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case.”[29] While this indicates that the defendant’s right as to how many people he may call is limited, the footnote is somewhat ambiguous.  For example, Justice Scalia commented in the same footnote that if the prosecution wishes to introduce testimony about the chain of evidence, “what testimony is introduced must (if the defendant objects) be introduced live.”[30]

Given these possible clashing interpretations of the letter and spirit of the law of Melendez-Diaz, it is likely that there will be significant division among courts on this issue of who must testify.  Allowing someone other than the analyst to testify and prohibiting the defendant from demanding to cross-examine a variety of people associated with the test does significantly reduce the practical harms of Melendez-Diaz, as requiring prosecutors to produce specific analysts in person is a substantial burden.  However, as Justice Scalia points out in Melendez-Diaz, not being able to confront the actual analyst will prevent the defense from thoroughly investigating the possibility of fraudulent analysis.  It is not clear how soon the Court will resolve this question.  Immediately after issuing Melendez-Diaz, the Supreme Court denied a cert petition in People v. Geier.[31] In Geier, the California Supreme Court found that an analyst’s supervisor could testify in place of the analyst in order to admit that analyst’s report.  By rejecting the cert petition, the Supreme Court may have indicated that it approves of the California decision.  Of course, it is also extremely rare for the Supreme Court to take back-to-back cases on the same topic.  Either way, the Supreme Court’s rejection of cert in Geier suggests that the division over who should testify will continue without resolution in the immediate future.

2. What is the Status of Statutes that Limit this Confrontation Clause Right?

Melendez-Diaz also has thrown into doubt the constitutionality of statutes that limit the defendant’s right to confront forensic analysts who have prepared evidence to be used against him.  There are two types of such statutes: burden-shifting statutes and notice-and-demand statutes. The constitutionality of these statutes divided courts before Melendez-Diaz, and the trend seems likely to continue.  Burden-shifting statutes place the burden of subpoenaing the forensic analyst on the defendant, who also bears the risk that the analyst will not appear.  Notice-and-demand statutes place the burden of calling the witness on the government, but require the defendant to give notice within a certain number of days that he will exercise his Confrontation right.  Such statutes may also place other restrictions on whether a witness will be called.

The Supreme Court seems to have definitively ruled that burden-shifting statutes are unconstitutional in Briscoe v. Virginia,[32] which was decided shortly after Melendez-Diaz.  The Virginia statute in Briscoe provided that:

“The accused in any hearing or trial in which a certificate of analysis is admitted into evidence pursuant to § 19.2-187 . . . shall have the right to call the person performing such analysis or examination or involved in the chain of custody as a witness therein, and examine him in the same manner as if he had been called as an adverse witness.  Such witness shall be summoned and appear at the cost of the Commonwealth.”[33]

The defendants in Briscoe argued that under the terms of this statute, the burden is on the defense to call the analyst to trial, and that if the analyst fails to appear, the statute “shifts to the accused the risk that a competent witness will not appear to testify at trial.”[34] Rather than argue that burden-shifting statutes were constitutional, Virginia instead argued that the statute was not burden-shifting pursuant to an interpretation by its state Supreme Court.  The Supreme Court, after vigorous oral argument on this topic, reversed the Virginia Supreme Court in a one-paragraph opinion.

It is not surprising that Virginia was unwilling to defend the constitutionality of burden-shifting statutes, given that Melendez-Diaz itself involved a Massachusetts version of such a statute.  Under the relevant Massachusetts statute, “Petitioner . . . could have obtained a subpoena . . . or used his right to compulsory process, under both the state and federal constitutions, to compel the analysts to testify at trial.”[35] Writing in Melendez-Diaz, Justice Scalia rejected the statute as constitutionally insufficient.  He found that the power to subpoena the forensic analyst “is no substitute for the right of confrontation.”[36] In other words, the defendant should not have to run the risk of a subpoenaed witness not appearing in court.  Based on Justice Scalia’s reasoning, the Oregon Court of Appeals recently found unconstitutional a statute that allowed an affidavit of a forensic analyst to be submitted without live testimony while guaranteeing the right of the defendant to subpoena the analyst (at no cost to the defendant).[37]

Questions regarding notice-and-demand statutes have also been raised.  A simple notice-and-demand statute “require[s] the prosecution to provide notice to the defendant of its intent to use an analyst’s report as evidence at trial, after which the defendant is given a period of time in which he may object to the admission of the evidence absent the analyst’s appearance live at trial.” [38] Many states had such statutes prior to Melendez-Diaz (including Georgia and Texas), and as previously mentioned, at least one state, Virginia, has passed such a statue in the wake of the case.  Virginia held a special legislative session in August to pass a notice-and-demand statute after the number of subpoenas to drug analysts in the state increased from 43 in July 2008 to 925 in July 2009.[39] A similar notice-and-demand statute is pending in the Massachusetts State Legislature, and is now before the Joint Committee on the Judiciary.  That bill would require the defendant to exercise his Confrontation Clause right regarding a forensic report before the pre-trial conference.[40] The Supreme Court noted in dicta in Melendez-Diaz that such simple notice-and-demand statutes are constitutional, saying that there is “no conceivable reason why [the defendant cannot] be compelled to exercise his Confrontation Clause rights before trial.”[41] As with the question of who may testify under Melendez-Diaz, it is not clear when (or if) the Court will definitively resolve this issue.  The Court may have indicated it would uphold such statutes by denying cert in Hinojos v. People,[42] just four days after issuing Melendez-Diaz.  Hinojos involved the constitutionality of a Colorado statute requiring the defendant to give notice that he intends to exercise his right to confront a forensic analyst at least ten days before trial.

The status of more complicated notice-and-demand statutes is more controversial.  For example, the Kansas Supreme Court recently struck down part of the state’s notice-and-demand statute pursuant to Melendez-Diaz.[43] The statute required the defendant to give notice if he intended to exercise his Confrontation Clause right within ten days of being notified that the government intended to present affidavit evidence of a forensic analyst at trial.  This requirement was not controversial.  However, the statute also said that the affidavit would be admitted into evidence without live testimony over the defendant’s objection unless:

“it appears from the notice of objection and grounds for that objection that the conclusions of the certificate, including the composition, quality or quantity of the substance submitted to the laboratory for analysis or the alcohol content of a blood or breath sample will be contested at trial.”[44]

This constraint addressed a significant concern of Melendez-Diaz opponents that defendants would call analysts without intending to contest their scientific conclusions.  Indeed, this concern has been at least partially borne out in reality.  For example, Virginia’s Roanoke laboratory described the situation as follows: in responding to thirteen subpoenas, analysts “spent 74 hours out of the office, traveled 2,600 miles and testified only twice for a total of 10 minutes.  They were never questioned by the defense.”[45] However, the Kansas Supreme Court held in State v. Laturner[46] that the statute’s second constraint on the defendant’s Confrontation Clause right was unconstitutional and that a previous decision upholding the constitutionality of this statute was “no longer viable after Crawford and Melendez-Diaz.”[47] It did not find that the time limit constraint in the statue was unconstitutional, and a Kansas appellate court has subsequently upheld that portion of the statute.[48] In sum, the status of both burden-shifting statutes and simple notice-and-demand statutes seems fairly clear; following Melendez-Diaz the former is unconstitutional and the latter is constitutional.  However, as Laturner demonstrates, more complicated notice-and-demand statutes will be more problematic.  The letter of Melendez-Diaz suggests that they are unconstitutional, but it is unclear whether courts will strictly follow Justice Scalia’s reasoning with respect to this issue.

3. Which Documents Can Still Be Admitted Without Live Testimony?

A third significant question raised by Melendez-Diaz concerns those documents that do not require live testimony to be admitted in court even if the defendant asks to cross-examine a witness relating to the documents.  Melendez-Diaz, of course, made it clear that certificates prepared by forensic analysts are subject to the Confrontation Clause.  Debate has arisen over which other types of documents will be considered subject to the Confrontation Clause under Melendez-Diaz.  Courts have already begun to see cases regarding the admissibility of three types of documents: business records, certificates of non-record, and certificates of accuracy.

Business records have traditionally been considered not to be subject to the Confrontation Clause provided that they are “kept in the regular course of business” and are not the “production of evidence for use at trial.”[49] The majority opinion in Melendez-Diaz indicated that the Court intended to maintain this exception, writing, “Business and public records are generally admissible absent confrontation . . . because—having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial—they are not testimonial.”[50] The lower courts appear willing to follow the Supreme Court’s dicta on this topic.  For example, the Fourth Circuit held in United States v. Gitarts[51] that Melendez-Diaz “explicitly reaffirms . . . that traditional business records are not testimonial evidence.”[52] Likewise, a Texas appellate court held that prison records kept in the regular course of business were not subject to the Confrontation Clause under Melendez-Diaz.[53]

While the traditional exception for business records remains intact, the admission without live testimony of certificates of non-record or certificates “attesting to the fact that the clerk had searched for a particular relevant record and failed to find it,”[54] has successfully been attacked. Before Melendez-Diaz, the Fifth, Seventh, Eighth, Ninth, and D.C. Circuits held that certificates of non-record (CNRs) were not subject to the Confrontation Clause.[55] However, in Melendez-Diaz dicta, Justice Scalia cited CNRs as examples of evidence subject to the Confrontation Clause right.[56] As a result, at least two states have overturned their precedents on CNRs.  In Tabaka v. District of Columbia[57] and Washington v. State of Florida[58] the D.C. and Florida state courts of appeals, respectively, held that CNRs were not admissible without live testimony should the defendant choose to exercise his Confrontation Clause right.  In Tabaka, the D.C. court of appeals found that a certificate that the defendant did not have a driver’s license in a drunk driving case “was inadmissible over objection without corresponding testimony by the DMV official who had performed the search”[59] under Melendez-Diaz.  Similarly, in Washington v. State of Florida, the Florida appellate court found that a certificate that the defendant was not licensed as a contractor could not be admitted when the defendant exercised his Confrontation Clause right and no one from the Florida Construction Industry Licensing Board testified.[60]

Cases have also already been brought regarding certificates of accuracy following Melendez-Diaz. Certificates of accuracy are frequently introduced without live testimony in order to prove the accuracy of law enforcement equipment, including breathalyzer tests and radar guns. The response of the circuits and states thus far has been to find that such tests are not subject to the Confrontation Clause and may therefore be admitted over the defendant’s objection without a live witness.  In United States v. Forstell,[61] United States v. Griffin,[62] and State v. Bergin,[63] two separate Virginia federal magistrate judges and an Oregon state appellate court, respectively, held that breathalyzer tests were not subject to the Confrontation Clause after Melendez-Diaz.  Similarly, in United States v. Bacas,[64] another Virginia federal magistrate judge held that the “certificates of accuracy for the tuning forks used to confirm the proper operation of the radar device” did not require testimony.[65] However, a Massachusetts defense attorney has said, “Massachusetts DUI lawyers are likely to launch Melendez-Diaz attacks on breathalyzer evidence in the near future.”[66]

4. Does Melendez-Diaz Apply in Quasi-Judicial Proceedings?

The application of Melendez-Diaz in quasi-judicial proceedings appears to be less complicated than the other issues addressed in this Article.  Quasi-judicial proceedings (like parole revocation hearings) are treated differently from criminal trials.  “[T]he full panoply of rights due a defendant in [a criminal proceeding] does not apply to parole revocations.”[67] Thus, prior to Melendez-Diaz, a number of circuits and state courts (including the First, Second, Eighth, Ninth and D.C. Circuits) held that Crawford, Melendez-Diaz’s predecessor, did not apply to quasi-judicial proceedings.[68] Similarly, courts have found that Melendez-Diaz does not apply to quasi-judicial proceedings.  Thus, a Missouri federal district court judge in United States v. Hibbert,[69] a South Dakota federal magistrate judge in United States v. Left Hand Bull,[70] and the Tennessee State Criminal Court of Appeals in State v. Walker[71] have all held that Melendez-Diaz does not apply to parole revocation hearings.  The Tennessee court wrote, “[N]othing in Melendez-Diaz indicates that it is to be applied in [quasi-judicial proceedings.]”[72] Thus, Professor Robert Friedman appears to be correct when he said at a recent conference that the Supreme Court’s holding would not “be a problem” in quasi-judicial proceedings.[73]

5. What Is the Status of Attempts to Use Circumstantial Evidence or Field Tests to Reduce the Practical Effects of Melendez-Diaz?

Finally, as previously mentioned, law enforcement officials and the courts have used a number of strategies to reduce the practical effects of Melendez-Diaz in drug cases.  Recent actions by courts and police officers in the Commonwealth of Massachusetts provide a good example of these (extremely varied) strategies.  First, Massachusetts courts have frequently found that violations of Melendez-Diaz involve harmless errors.  Indeed, Melendez-Diaz’s appeal itself is still pending in the state court system, where the error might also be found to be harmless.[74] To uphold these violations as harmless, Massachusetts courts often rely on circumstantial evidence in drug cases.  For example, the Massachusetts Supreme Judicial Court (SJC) held this November in Commonwealth v. Connolly[75] that although it had to strike the admission of drug certificates under Melendez-Diaz, the error was harmless because the case could be proved through circumstantial evidence.  The SJC relied on the testimony of police officers that the substance was cocaine, the jury’s inspection of the drugs and handling of that evidence, and the defendant’s own admissions to a confidential informant to find that there was enough to uphold the defendant’s conviction for trafficking between 100 and 200 grams of cocaine.[76] Similarly, a Massachusetts Court of Appeals refused to find an ineffective assistance of counsel claim pursuant to Melendez-Diaz because, even though the drug certificates had been disqualified, “where an adequate foundation is laid, an experienced police officer can testify that a substance is a particular controlled drug.”[77]

Second, Massachusetts law enforcement officials have also begun using circumstantial evidence or field tests by police officers to avoid calling in drug analysts.  In Commonwealth v. Martel, a police officer tested a substance while on the stand to determine whether it was heroin.[78] The officer said that he had received two hours of training online to administer the field test and had paid “less than $9.95” for his certification.[79] A Bristol County Assistant District Attorney said of Commonwealth v. Martel that, “We are going to get the analysts down in certain cases, but this case shows that we have other weapons in our arsenal, which include proving cases circumstantially.”[80]

Melendez-Diaz itself offers no specific guidance on the legality of such attempts to limit the practical impacts of its holding.  In Footnote 14, Justice Scalia wrote, “Today’s opinion, while insisting upon retention of the confrontation requirement, in no way alters the type of evidence (including circumstantial evidence) sufficient to sustain a conviction.”[81] While the overall tenor of Melendez-Diaz would probably disfavor these actions, federal and state courts will have to look outside the four corners of the case when reviewing actions like those taken in Massachusetts.  Given the enormous practical impacts of Melendez-Diaz, cases on this topic are likely to be extremely controversial.  Ironically, if courts decide that such actions are permissible, then the end result of Melendez-Diaz may be to make the quantum of proof used to convict defendants less, rather than more.  As one defense attorney put it, “The bizarre result here is that if judges start letting this happen, then you’re going to have trials decided with even less reliable evidence than before Melendez-Diaz, which was absolutely never intended by the Supreme Court.”[82]

III. Conclusion

While this article began by indicating that the effects of Melendez-Diaz thus far have not been catastrophic, it will end by arguing that attempts by both the defense and the prosecution to exploit the case could have a more dramatic impact.  The more courts accept arguments by defendants that the right granted in Melendez-Diaz should be interpreted strictly—e.g., the more the legal issues described above are decided against the government—the more difficulty law enforcement officials will have in proving cases.  This difficulty is likely to have two consequences.  First, prosecutors will be forced to dismiss some cases because of their inability to introduce evidence at trial.  This consequence is not necessarily negative.  One defense attorney has said that Melendez-Diaz may be an effective means of making the true costs of prosecuting minor violations, such as low-level drug cases, more apparent.[83] However, this effect is one that must be recognized.  There are limited numbers of forensic analysts, especially medical examiners, and the more strictly Melendez-Diaz is enforced, the more defendants will escape criminal prosecution because of the unavailability of forensic scientists.  Depending on how courts resolve these splits, Melendez-Diaz could even place a de facto statute of limitations on murders, if cases are no longer provable after medical examiners die or otherwise become unavailable.[84]

The second possible result (which is not exclusive of the first) is that law enforcement officials will begin to resort to circumstantial evidence and field tests to prove cases.  This will have the disquieting result that some defendants will be convicted on the strength of evidence that is less strong than that used prior to Melendez-Diaz.  Of course, these drug analyses will continue to be done—but it should matter that this evidence will not be accessible to the jury.  It is not clear that the practical benefits to defendants are worth this cost.  While the defense has increased its chances of getting an acquittal based on the inability of the forensic analyst to appear, there is little evidence that defense lawyers are using this opportunity to cross-examine witnesses about the unreliability of certain forensic tests and specific forensic scientists.

Justice Scalia, however, predicted that this effect would be limited: “[D]efense attorneys [will not] want to antagonize the judge or jury by wasting their time with the appearance of a witness whose testimony defense counsel does not intend to rebut in any fashion.”[85] It is too early to be certain about the actual empirical answer to this question.  If, however, some of the already significant number of cases concerning ineffective assistance of counsel claims, for failure to raise Melendez-Diaz objections, are decided in favor of the defendant, Justice Scalia may be proved wrong.  Research conducted prior to December 2009 revealed no cases in which the defendant prevailed in such a claim.  Indeed, courts will likely be very cautious about granting Melendez-Diaz inspired ineffective assistance of counsel claims.  But, it is not obvious that this caution will be enough to forestall defense attorneys from demanding to cross-examine forensic experts, given that a Melendez-Diaz objection can easily make the difference between acquittal and conviction.  This is especially true in murder and rape cases where the medical examiner is absent.

In large part motivated by concerns about these practical effects of Melendez-Diaz, twenty-six states have filed an amicus curiae brief in Briscoe asking the Supreme Court to overturn its decision last Term.  The brief states, “If there is any possibility that the Court might ever reconsider Melendez-Diaz, it is far better to do it now rather than wait for state criminal justice systems to be overwhelmed with demands for lab technicians to testify (needlessly) at trial.”[86] The Supreme Court declined this opportunity.  Thus, there is currently no easy answer to the Melendez-Diaz dilemma.  Overall, the practical effects of Melendez-Diaz should serve mainly to caution courts about the effects of interpreting the Confrontation Clause too strictly.  Particularly, should courts begin holding that analysts who conduct tests must themselves testify in person, or that simple notice-and-demand statutes are unconstitutional, the effect on our justice system would be considerable.  The sky has not fallen, but it may yet.

[1] 129 S. Ct. 2527 (2009), available at http://www.supremecourt.gov/opinions/08pdf/07-591.pdf.

[2] The Confrontation Clause provides that “in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const., amend. VI. In recent years, the Supreme Court has created a revolution in Confrontation Clause jurisprudence. See, e.g., Crawford v. Washington, 541 U.S. 36 (2004); Davis v. Washington, 547 U.S. 813 (2006).

[3] Alan Cooper, Lawyers Jump on DUI Case, Va. Lawyers Weekly, July 6, 2009, available at http://valawyersweekly.com/blog/2009/07/06/lawyers-jump-on-dui-case/.

[4] Jenny Paul, Coakley: Forensics testimony a burden, Boston Globe, Nov. 11, 2008, available at http://www.boston.com/news/nation/articles/2008/11/11/coakley_forensics_testimony _a_burden/.

[5] This was despite Massachusetts’ recent de-criminalization of some marijuana possession, which presumably decreased the number of drug cases requiring analysis.

[6] Gov’t of the Virgin Islands v. Vicars, 340 Fed.App’x 807 (3d Cir. 2009).

[7] Ken Wallentine, 12 Supreme Court Cases Affecting Cops, PoliceOne.Com, Nov. 11, 2009, http://www.policeone.com/legal/articles/1964272-12-Supreme-Court-cases-affecting-cops.

[8] David Lowy, J., Mass. Super. Ct., Moderator of Admissibility of Forensic Evidence Panel at the New England Journal on Criminal and Civil Confinement Symposium: Confronting Forensic Evidence (Nov. 13, 2009).

[9] Transcript of Oral Argument at 4:3-8, Melendez-Diaz, No. 07–591 (Nov. 10, 2008), cited in Federal Evidence Review, Supreme Court Watch: Initial Questions Raised By The Melendez-Diaz Confrontation Clause Opinion (June 29, 2009), http://federalevidence.com/blog/2009/june/initial-questions-raised-melendez-diaz-confrontation-clause-opinion.

[10] 913 N.E.2d 703 (Ind. 2009).

[11] Id. at 708 (citing Melendez-Diaz).

[12] People v. Gutierrez, 99 Cal. Rptr. 3d 369, 374–78 (Cal. Ct. App. 2009).

[13] People v. Rutterschmidt, 98 Cal. Rptr. 3d 390 (Cal. Ct. App. 2009).

[14] Larkin v. Yates, No. CV 09-2034-DSF, 2009 WL 2049991 (C.D. Cal. July 9, 2009).

[15] No. B211183, 2009 WL 2933153 (Cal. Ct. App. Sept. 15, 2009).

[16] Id. at *6.

[17] No. 1-07-3372, 2009 WL 2999142 (Ill. App. Ct. Sept. 18, 2009).

[18] Id. at *9.

[19] Nat’l Research Council, Strengthening Forensic Science in the United States: A Path Forward (2009).

[20] Erin Murphy, What ‘Strengthening Forensic Science’ Today Means For Tomorrow: DNA Exceptionalism and the 2009 NAS Report, Law, Probability & Risk (forthcoming Apr. 2010) (manuscript at 1, on file with author).

[21] Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2537 (2009).

[22] Id.

[23] Nati’l Research Council, supra note 19, at 44.

[24] Melendez-Diaz, 129 S. Ct. at 2537.

[25] Richard Friedman, The Confrontation Blog, http://confrontationright.blogspot.com.

[26] Richard D. Friedman, Professor of Law, Univ. of Mich. Law Sch., New England Journal on Criminal and Civil Confinement Symposium: Confronting Forensic Evidence (Nov. 13, 2009).

[27] Email from Richard D. Friedman to author (Nov. 27, 2009) (on file with author).

[28] Melendez-Diaz, 129 S. Ct. at 2545.

[29] Id. at 2532.

[30] Id.

[31] 129 S. Ct. 1856 (2009).

[32] Magruder v. Virginia, 657 S.E.2d 113 (Va. 2008), cert. granted sub nom. Briscoe v. Virginia, 129 S. Ct. 2858 (2009).

[33] Va. Code Ann. § 19.2–187.1 (2000).

[34] Brief of Petitioner at 8, Briscoe v. Virginia, 129 S. Ct. 2858 (Sept. 1, 2009) (No. 07-11191).

[35] Brief of Respondent at 57, Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (Sept. 2, 2008) (No. 07–591).

[36] Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2540 (2009).

[37] State v. Willis, 213 P.3d 1286 (Or. Ct. App. 2009).

[38] Melendez-Diaz, 129 S. Ct. at 2541.

[39] Sabri Ben-Achour, Virginia Holds Special Legislative Session to Respond to Court Ruling (American University broadcast Aug. 19 2009). The Commonwealth may also have passed this legislation to address concerns that the state’s former forensic evidence statute will be held unconstitutional in Briscoe.

[40] H. 4162, 2009 Gen. Assem., Reg. Sess. (Ma. 2009), available at http://www.mass.gov/legis/bills/house/186 /ht04/ht04162.htm.

[41] Melendez-Diaz, 129 S. Ct. at 2541.

[42] 169 P.3d 662 (Colo. 2007), cert. denied, 129 S.Ct. 2856 (2009).

[43] State v. Laturner, 218 P.3d 23 (Kan. 2009).

[44] Kan. Stat. Ann. § 22–3437(3) (2008).

[45] Alan Cooper, Prosecutors, analysts deal with Melendez-Diaz fallout, Virginia Lawyers Weekly, Nov. 30, 2009, available at http://valawyersweekly.com/blog/2009/11/30/prosecutors-analysts-deal-with-melendez-diaz-fallout/.

[46] 218 P.3d 23.

[47] Randall Hodgkinson, Melendez-Diaz in Kansas, Kansas Defenders, Oct. 9, 2009, available at http://kansasdefenders.blogspot.com/2009/10/melendez-diaz-in-kansas.html.

[48] State v. Murphy, 219 P.3d 1223 (Kan. Ct. App. 2009).

[49] Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2538 (2009).

[50] Id. at 2439–40.

[51] No. 08-500, 2009 WL 2705507 (4th Cir. Aug. 28, 2009).

[52] Id. at *3–*4.

[53] Grey v. State, 299 S.W.3d 902 (Tex. Ct. App. 2009).

[54] Melendez-Diaz, 129 S. Ct. at 2539.

[55] Washington v. State of Florida, No. 4D08-597, 2009 WL 3189188, *3 n.1 (Fla. Dist. Ct. App. Oct. 7, 2009).

[56] Melendez-Diaz, 129 S. Ct. at 2439–40.

[57] 976 A.2d 173 (D.C. 2009).

[58] 18 So.3d 1221 (Fla. Ct. App. 2009).

[59] Tabaka, 976 A.2d at 175–76.

[60] Washington, 2009 WL 3189188, at *2–*3.

[61] 656 F. Supp. 2d 578 (E.D. Va. 2009).

[62] No. 3:09MJ308, 2009 WL 3064757 (E.D. Va. Sept. 22, 2009).

[63] 217 P.3d 1087 (Or. Ct. App. 2009).

[64] 662 F. Supp. 2d 481 (E.D. Va. 2009).

[65] Id. at 483–84.

[66] Brian E. Simoneau, Massachusetts Breathalyzer Evidence Likely to Be Challenged, Massachusetts DUI Law, Nov. 22, 2009, http://www.massachusettsduiblog.com/.

[67] Morrissey v. Brewer, 408 U.S. 471, 480 (1972).

[68] See United States v. Rondeau, 430 F.3d 44, 47–48 (1st Cir. 2005); United States v. Aspinall, 389 F.3d 332, 342 (2d Cir. 2004); United States v. Ray, 530 F.3d 666, 668 (8th Cir. 2008); United States v. Hall, 419 F.3d 980, 985–86 (9th Cir. 2005); Ash v. Reilly, 431 F.3d 826, 829–30 (D.C. Cir. 2005).

[69] No. 4:09CR00244ERW, 2009 WL 2948460 (E.D. Mo. Sept. 14, 2009).

[70] No. CR 05-30106(01)-CBK, 2009 WL 2030544 (D.S.D. July 13, 2009).

[71] No. M2008-02824-CCA-R3-CD, 2009 WL 2433176 (Tenn. Ct. App. Aug. 10, 2009).

[72] Id. at *4.

[73] Friedman, supra note 26.

[74] Mary Rogers, Counsel of Record for Melendez-Diaz, New England Journal on Criminal and Civil Confinement Symposium: Confronting Forensic Evidence (Nov. 13, 2009). The Supreme Court said, “We of course express no view as to whether the error was harmless.” Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2542 n.14 (2009).

[75] 913 N.E.2d 356 (Mass. 2009).

[76] Id. at 374–376.

[77] Commonwealth v. Montina, 914 N.E.2d 362, at *2 (Mass. Ct. App. 2009).

[78] David E. Frank, Fall River District Court Drug Trial Raises Concern: Defense Bar Shocked In-Court Testing Allowed, Massachusetts Lawyers Weekly, Nov. 9, 2009.

[79] Id.

[80] Id.

[81] Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2542 n.14 (2009).

[82] Frank, supra note 78 at *1.

[83] Joseph King, Counsel of Record for Briscoe, New England Journal on Criminal and Civil Confinement Symposium: Confronting Forensic Evidence (Nov. 13, 2009).

[84] See, e.g., Gov’t of the Virgin Islands v. Vicars, 340 F. App’x 807 (3d Cir. 2009) for an example of dismissal of physician’s report in light of Melendez-Diaz.

[85] Melendez-Diaz, 129 S. Ct. at 2542. Cf. Judith Resnik, Managerial Judges, 96 Harv. L. Rev. 374 (1982).

[86] Brief for Indiana et al. as Amici Curiae in Support of Respondent at 32, Briscoe v. Virginia, 129 S. Ct. 2858 (Nov. 2, 2009) (No. 07-11191).

In McDonald v. City of Chicago, now before the Supreme Court, petitioners claim that Chicago’s decades-old handgun ban is a violation of the Second Amendment right to keep and bear arms.  The Supreme Court’s recent affirmation in District of Columbia v. Heller that the Second Amendment protects an individual right to arms leaves little mystery about the likely outcome of McDonald.  Heller struck down a federal handgun ban within the boundaries of the District of Columbia.  McDonald will decide if the Second Amendment applies to state and local governments.

It is difficult to imagine that any of the five justices in the Heller majority will refuse to apply the Second Amendment to the states—either on the view that it is a fundamental right incorporated under the Due Process Clause of the Fourteenth Amendment or as one of the basic rights of citizenship protected under a revived Privileges or Immunities Clause.[1] Indeed it is fair to speculate that the Heller majority might pick up an extra vote in McDonald with an opinion that breathes life into the Privileges or Immunities Clause.[2] The more significant and tougher issue is how the individual right to arms will unfold in challenges to particular types of state and local gun laws.

To the question “what is protected under the Second Amendment?”, Heller answers:  those firearms in “common use for lawful purposes like self-defense.”[3] “Common use” suggests two possibilities. One is a narrow, numerical standard that would protect best-selling models from popular manufacturers but allow prohibitions on obscure brands of essentially the same gun.  The other view is that “common use” means functionally common.  This view would protect the entire class of similarly functioning guns regardless of whether millions were sold by popular makers.

Functional commonality is the better and really the only defensible view for two reasons.  First, the cribbed numerical approach produces the same kind of equal protection problem that prompted challenges and then amendments to California’s assault weapons ban.[4] It is difficult to justify drastically different treatment of owners and manufacturers of functionally identical guns.

The second objection is that the common use standard derives from the eighteenth-century understanding that citizens were expected to answer the militia call with arms “provided by themselves in common use at the time for lawful purposes like self defense.”[5] Gun manufacturing at the time was pre-assembly line.  Most private firearms were functionally similar, but every gun was essentially custom-made.[6] So, the common use standard was not and is not source specific.

This resolves some things, but even under the “functionally common” standard there is a great deal left to contest.  One reason is that functionality is complicated.  It breaks down into several subcategories. The basic ones are ballistics, ammunition feeding, dimensions (i.e., both size and power to size ratio), and ammunition type (which is complicated because some will argue it is not directly addressed under Heller).  These variables prompt a variety of questions about the “functionally common” standard and the kinds of regulation that it allows.

Resolution of these questions will unfold within a broader context that highlights resource allocation issues for those who anticipate spending political capital on gun control.  I have demonstrated in detail elsewhere that supply side gun control laws can generate only negligible reductions in violence because Americans already own 300 million guns.[7] Also, most gun crime is handgun crime, and handguns are now explicitly constitutionally protected under Heller.[8] Still, it is plain that supply restrictions have a powerful political and symbolic resonance for both sides of the gun control debate.  This means that battles implicating the common use standard will play out in earnest and that the often-ignored details of firearms functionality will take center stage.

This article shows how mechanical functionality and existing regulatory norms will shape the resolution disputes rooted in the common use standard.  Sections A-D will focus on ballistic norms, ammunition feeding mechanisms, ammunition type and dimensional norms in that order.[9] This article will conclude with a brief treatment of the regulatory and violence policy options that will remain viable after McDonald.

A. Ballistically Common Guns and Background Regulatory Norms

Ballistics, meaning destructive energy, is a function of several factors that are ultimately interrelated. The main factors are 1) muzzle diameter or caliber; 2) chamber dimensions—sometimes connoted by loose references to caliber but more accurately identified by the cartridge designation;[10] 3) propellant chemistry; and 4)  projectile type.[11] Muzzle diameter and chamber dimensions are integral to the gun and might therefore be analyzed differently from propellant chemistry and projectile type[12] on the view that Heller extends more robustly to the gun than to ammunition variations.[13]

All of these variables are interrelated in ways that render regulatory focus on any one of them incomplete.  However, a somewhat simplistic focus on individual variables is unavoidable because existing regulations have taken that focus, and those regulations have helped define the inventory of guns in common use.

1. National Firearms Act Norms

One good illustration of this kind of imprecise regulatory norm is the muzzle diameter filter established under the 1934 National Firearms Act (NFA).[14] NFA regulations have set one half-inch muzzle diameter (or fifty caliber) as the threshold above which guns are regulated under the very stringent set of rules[15] that govern machine guns and other “destructive devices.”  On the other hand, rifled barrel guns—i.e., those with grooves that spin and stabilize the projectile—fifty caliber and below, long have been widely available and are subject to no special regulation.  So as a threshold matter, guns fifty caliber and below should fit within the common use standard.  Arguably, any gun above fifty caliber is uncommon because it has been deemed exotic by regulatory fiat for generations.[16]

Notice, however, that this is a technically impure determination of functionality.  Many guns over fifty caliber are indistinct from sub-fifty caliber guns.  The decision to make fifty caliber a regulatory threshold was arbitrary and artificially elevates a variable that on the margin will produce little if any difference in destructiveness.  Still, it is undeniable that the fifty caliber filter has taken hold politically, practically, and in the marketplace.  Guns above fifty caliber are numerically rare and conceptually (though not functionally) distinct, so much so that it is easy to imagine courts concluding that NFA regulated guns are outside the protection of the Second Amendment.  Indeed, Heller explicitly suggests that NFA regulated machine guns are not constitutionally protected.[17]

This shows that we can expect renderings of functionality that range beyond a purely mechanical assessment.  Faced with difficult cases, courts will be tempted to adopt distinctions drawn from long-standing regulatory barriers like the NFA. Still, Heller makes plain that we cannot credit every regulatory distinction; the whole point of Heller was that the regulatory corral erected around handguns was illegitimate.

But Heller gives no plain basis for deciding which regulatory distinctions to credit, and this injects substantial uncertainty into the standard.  So while Heller makes clear that handguns are constitutionally protected, and a broad view of functionality might say that all handguns are basically the same, there are undeniably regulatory and popular cultural distinctions within that category.  Those distinctions are sometimes reflected in state firearms regulations.  And that produces significant uncertainty about the outcome of Second Amendment challenges to certain state firearms restrictions.

2.  Problems of Simplistic Regulatory Norms

The temptation to layer the common use standard with background regulatory norms poses another type of problem.  Consider again the fifty caliber filter established by the NFA.  It is easy to say that guns under this ballistic curve are functionally common, at least on that single variable.  This is so even for guns that are newly developed, obscure, or unpopular and thus rare.  Compare the cribbed numerical standard under which the prototype .345 Whizbanger might be banned as uncommon because it is the only one of its “type” in the world.  The functionally common standard would say that the Whizbanger’s ballistic performance is the test.  So if it fell under the curve of fifty caliber ballistics then it would be ballistically common and nominally protected.

But for some questions, the ballistic filter is incomplete because functionality can be a factor of several variables and sometimes of their interrelationships.  So a different kind of question arises when we layer the ballistically common standard with the dimensional variable.  Consider, for example, the relatively new class of super-short magnum rifles.  Through innovations in chamber dimensions/case design and propellant chemistry, they produce more destructive energy from a smaller platform with less recoil.  Their performance is within the traditional ballistic spectrum—i.e., they are nothing new in terms of down-range destructiveness.  But the guns are more compact and easier to handle and shoot.

One can anticipate the argument that this improvement has produced a qualitatively more lethal gun.  Transfer this story to the handgun context, and some will say that there is a politically compelling argument for banning this new uncommonly dangerous innovation.[18] Depending on how we slice the categories, the gun is either common (mechanically it is ordinary) or it is not (improvements in design details make it more efficient).  There is no background regulatory guidance about which view to privilege nor is there anything instructive in Heller.  It is likely that such questions will turn on whatever bias courts bring to the issue.

B. Ammunition Feeding

The closest thing to a true gun ban ever attempted by Congress focused on ammunition feeding.  The 1994 Federal Assault Weapons Ban[19] instituted a prospective ban on certain configurations of semiautomatic rifles that resembled fully automatic military rifles.[20] One of the common features of the banned guns was the capacity to accept a detachable box magazine—i.e., the component that stores and feeds ammunition.  The ban expired in 2004 and bills to renew it stalled in Congress.[21] Several states also enacted assault weapons bans that remain in force.  Assuming McDonald applies the Second Amendment to the states, what happens to these state assault weapons bans?  What does the common use standard say about the ammunition feeding variable and the particular case of semiautomatic rifles?

Semiautomatic technology is more than a century old.  Multi-projectile and other repeating technologies that exhibit similar and sometimes more destructive capabilities are even older.[22] Distinctions between legitimate and illegitimate ammunition feeding technology pressed under the 1994 assault weapons ban were incoherent from the perspective of functionality.[23] Moreover, an honest assessment of the utilities and externalities of different sorts of firearms and different sorts of repeating technologies renders the differences insufficient to sustain compelling  distinctions between them.[24] Whether it is the revolver, the pump action, the lever action, the semiautomatic, or the multi-projectile shotgun (in a variety of action types), repeating technology is ubiquitous and it is difficult to sustain regulatory distinctions between the subcategories.[25]

Still, if the focus on semiautomatics persists, it is clear that, as a type, they are widely owned and easily fit within the common use standard.  Civilians have owned semiautomatics without restriction for more than a century.  David Hemenway, a long-time advocate of stringent gun laws, estimates that at least sixty percent of gun owners possess at least one semiautomatic firearm.[26]

Other counts confirm the wide ownership of semiautomatics.  Recent industry sales figures show that the AR-15[27] is now the best selling rifle type in the country.[28] This is one of the unintended consequences of the 1994 federal ban,[29] and it convincingly renders the AR-15 family of semiautomatic rifles common firearms under Heller.[30]

Still, it is undeniable that the assault weapons question evokes visceral reactions and therefore the possibility of analytical cheating.  There is no reason to think that judges are immune to this pressure.  Consequently, we can anticipate a certain level of dishonesty on the semiautomatics question.  It is easy to anticipate challenges to state and local assault weapons bans generating a variety of lower court decisions that roughly handle or dilute the common use standard.

That is what happened in the wake of United States v. Miller,[31] the 1938 Supreme Court decision that left the neutral observer unsure whether the Court endorsed an individual or collective rights view of the Second Amendment.[32] Reacting against its unsettling policy implications, lower courts layered Miller with embellishments that morphed into a body of precedent asserting that the Second Amendment does not protect an individual right to arms. [33]

On the heels of McDonald, it is easy to anticipate lower courts in politically combustible cases layering the common use standard with new and restrictive criteria.  This is especially likely in the context of political hot potatoes like assault weapons bans.

It is easy to anticipate the arguments that state and local governments and ultimately judges will advance. An obvious one is something like, “Heller only protects guns in common use and these guns are not common here in Massachusetts.”  On that foundation, the state would claim that the basic right to arms is respected (because some guns are permitted), but that common use is a question of state, local, or community standards—perhaps with a nod to the local community standards test the Court has used to distinguish between pornography and protected speech under the First Amendment.[34] The outcome of this argument would be essentially the deference to local governments urged by Justice Breyer’s dissent in Heller.  It is not hard to imagine a differently configured Supreme Court embracing such arguments as a way of nominally respecting, but ultimately diminishing Heller. [35]

Overall, this view would be inconsistent with the treatment of other rights. The character of constitutional rights does not vary by venue and the pornography analogy is troublesome at several levels.[36] But on gun issues, analytical purity is often trumped by other considerations.[37]

C. Ammunition Restrictions and Common Use

Ammunition restrictions raise an arguably distinct sub-issue under the common use standard.  Heller did not speak explicitly to ammunition restrictions and there is no reason to expect that McDonald will.  So while it would be absurd to say that guns in common use are protected but ammunition for them is not, the fact that ammunition is a distinct variable poses different analytical challenges.

New Jersey’s ban on hollow point handgun ammunition provides an interesting example.  Hollow point ammunition is extremely common and may even dominate ammunition sales.  It is simply not plausible to say that it is unusual or exotic.  But like assault weapons, hollow point ammunition is draped in mythology and evokes visceral reactions in some venues.  So it is easy to imagine lower court resistance to ammunition ban challanges. Will it be enough to deny that hollow point ammunition is generally ubiquitous?  Again, we can anticipate the argument that as a consequence of longstanding state regulation, “hollow point ammunition is not common here.”

D. The Dimensional Variable and Regulatory Norms

We already discussed the dimensional variable as a complication to the question of ballistically common guns. Approaching the dimensional variable head-on incorporates another interesting regulatory overlay. Determining which guns are dimensionally common is complicated.  There is some temptation to draw norms from existing regulations.  The Gun Control Act of 1968 imposed import restrictions on very small handguns—e.g., the Baby Browning .25 pocket pistol.[38] The complication is that these import restrictions did not stop and may have even encouraged domestic producers to make and sell guns that are indistinguishable from the banned imports.

This has several analytical consequences.  First, it illustrates that in some contexts it is unproblematic to regulate functionally identical guns differently.  Restrictions on imports avoid the equal protection objection and seem peripheral to the core right of citizens to keep and bear arms.  However, for grandfathered guns and domestic copies, the impact of the regulatory overlay is uncertain.  A pure and robust application of the “functionally common” standard would conclude that these diminutive guns are prosaic and even antiquated.  Still, it is undeniable that the regulatory overlay reflects a cultural bias (though perhaps only a regional one) that stigmatizes these guns.  The elusive label “Saturday Night Special”[39] might stick to some of them.[40] So again it is fair to anticipate some level of judicial creativity that credits the regulatory and social stigma.

One final and problematic variation on the dimensional variable is disguised guns.  These guns are configured to look like other things—e.g., the cane gun.[41] They arguably pose just another version of the questions that accompany the dimensional variable. But in some ways, disguised guns are different.  Some are regulated by the stringent NFA under rules governing silencers, short-barreled rifles, and other “destructive devices”.[42] For this reason, and perhaps because of their limited practical utility, many of these guns are numerically quite rare.

But in terms of pure functionality these guns are extremely ordinary.  Most of them are at the bottom of the ballistic range—appearing in recreational calibers like .22 rimfire or .25 or .32 caliber.  These are calibers that Jeff Cooper[43] famously said are inferior to a good hatchet for self-defense.  Most of them are single shots, which is the most primitive type of ammunition feeding. Most of them must also be manually cocked—e.g., a hammer, striker, or spring mechanism must be set by hand before tripping the trigger.  Some of them actually have to be disassembled before they can be reloaded, making them slower than an eighteenth century musket for repeat shots.

But even though these guns employ the most basic firearms technology, they are deemed exotic by regulatory fiat.  And that regulation arguably reflects a practical political and cultural bias that has real power on gun questions.  Some will recoil at the idea of the cane gun, attributing sinister purposes to the disguise feature.  Others will consider it an interesting but marginal self-defense gun.  Regulatory assessment of it depends in part on the range of self-defense scenarios we are willing to credit.  Is the gun especially suited for illicit activity?  Or, is it really no different from any other concealed carry gun?  If so, it would be rendered normal by the fact that the vast majority of states have enacted “shall issue” concealed carry statutes.[44]

These questions take us beyond the common use standard and suggest that adequate treatment of the full range of constitutional and violence policy questions opened by McDonald will require a more nuanced framework than the Court provided in Heller.[45]

CONCLUSION: THE BIGGER PICTURE

I have concentrated here on particular questions and acts of legislation that are likely to be impacted by Heller and McDonald, and I have suggested places where the common use standard generates analytical puzzles or low predictability.  These issues will consume time and energy but will be peripheral in terms of violence policy consequences. The reason is that gun prohibition is basically an all-or-nothing proposition.  It rests on the logic that no guns equals no gun crime.  No one expects the inventory to go to zero, but results depend on reductions that get relatively close to it.  So supply-side regulations only make sense if we think that eventually they will make guns or the elusive subcategory “crime guns” relatively scarce. Heller makes that constitutionally impermissible. Most “crime guns” are ordinary handguns.  Ordinary handguns kept for self-defense are explicitly protected under Heller.[46]

Gun prohibition post-Heller really just means working around the edges to ban obscure, exotic guns that can be carved away from the common use standard.  This will be a waste of time and energy.  I have demonstrated elsewhere that even absent Heller, supply controls cannot work because we have so many private guns already.[47] Americans own nearly half the private firearms on the planet.  The civilian inventory approaches 300 million guns.  If the international experience is any indication, getting 300 million firearms away from people who believe their guns are constitutionally protected, liberty preserving, life saving tools is simply impossible—and the failed attempt would likely make things worse.[48] The international defiance ratio in places that have tried gun bans or registration is 2.6 illegal guns for every legal one;  this is in countries that have nothing approaching our robust gun culture and constitutional right to arms claims.[49] So reducing gun crime through supply controls was impossible as a practical matter long before Heller.

Of course my assessment here is unlikely to dissuade true believers or those who think that supply restrictions are just good or correct politics. It is fair to expect legislation, challenges, and conflict contesting the boundaries of the common use standard. But the only dramatic results will be that the few jurisdictions that have pursued sweeping gun bans will have to abandon those.  Skirmishes over politically vulnerable guns—random rare and exotic guns—will produce a scattered and uncertain jurisprudence.[50] Laws that restrict untrustworthy people from having guns will remain undiminished.[51] The validity of political gestures, like one-gun-a-month-laws, will not be resolved within the framework of Heller and will require supplemental standards that identify constitutionally acceptable regulatory burdens. This may be interesting jurisprudentially, but the practical impact will be minimal because one-gun-a-month and other prospective restrictions that affect only a handful of guns are mere window dressing from a violence policy perspective.[52]

Overall, Heller and McDonald simply affirm the reality of our armed society.  The only people who should really be unhappy about the implications of these decisions are those still clutching the pipe dream that “gun control” might someday morph into sweeping bans on private firearms.

*Professor of Law, Fordham University School of Law. J.D., Harvard Law School, 1984.

[1] Heller pressed the question whether the language of the Second Amendment ratified in the eighteenth century established an individual right to arms.  McDonald asks whether an individual right to arms is a fundamental right incorporated as a limitation on state action under the Due Process Clause of the Fourteenth Amendment, or whether it can be recognized under a reinvigorated Privileges or Immunities Clause.  Under the due process standard, the question is whether the Court will deem the right to arms a fundamental right.  The Heller opinion suggests that at least five justices think it is.  “The inherent right of self-defense has been central to the Second Amendment right.” District of Columbia v. Heller, 128 S. Ct. 2783, 2818 (2008).  I have shown elsewhere that the ancient right to self-defense is a cornerstone on which the Court and scholars have constructed and elaborated a variety of fundamental constitutional rights, including the Fourth Amendment and the right to abortion.  See Nicholas J. Johnson, Self Defense? 2 J.L. Econ. & Pol’y 187 (2006).

On the second question, there is very strong evidence that one aim of the Fourteenth Amendment was to prevent state governments from infringing the rights guaranteed by the Bill of Rights that was widely understood to include an individual right to keep and bear arms.  See Clayton E. Cramer, Nicholas J. Johnson & George A. Mocsary, ‘This Right is Not Allowed by Governments that are Afraid of the People’: The Public Meaning of the Second Amendment When the Fourteenth Amendment was Ratified, 17 Geo. Mason L. Rev. ____ (forthcoming 2010), available at http://ssrn.com/abstract=1491365.  The evidence on this point is actually stronger than the evidence supporting the individual right as affirmed in Heller.  The bulk of the brief for petitioner in McDonald v. City of Chicago is devoted to the Privileges or Immunities argument.  See Brief of Petitioner-Appellant, McDonald v. City of Chicago, No. 08-1521 (argued Mar. 2, 2010).

Also, it is plausible to speculate that justices who object to the individual rights interpretation of the Second Amendment might still join an opinion that revived the Privileges or Immunities Clause.  The appeal of this approach is that it presents a better platform for building unenumerated rights than the concept of substantive due process, and would offer more guidelines than the Ninth Amendment.

[2] Although the colloquy at oral argument suggests the Court is unlikely to revive the Privileges or Immunities Clause, this argument dominates the Petitioner’s Brief in McDonald.  One strand of the discussions and predictions surrounding McDonald focuses on the appeal that a revived Privileges or Immunities Clause has to those interested in constructing progressive, unenumerated rights claims. Doug Kendall and David Gans write this:

For the last forty years, the Court’s fundamental rights jurisprudence developed under the Due Process Clause has been dogged by persistent claims of illegitimacy.  Roe v. Wade has been the target of most of these attacks, but the claims made by Roe’s attackers go well beyond Roe or even abortion rights. Justice Scalia—the most fervent of the challengers—argues that the protection of unwritten fundamental rights is simply not lawyer’s work. “The tools of this job,” he says “are not to be found in the lawyer’s—and hence not the judge’s—workbox.”  But one need not reach for tools beyond Scalia’s favorites—text and history—to see that judges properly protect substantive fundamental rights not enumerated elsewhere in the Constitution.  On Scalia’s own terms, his objections fall flat when faced with the text and history of the Privileges or Immunities Clause.

The list of fundamental rights the Privileges or Immunities Clause was designed to protect began with those in the Bill of Rights, but it did not end there.  In discussing the fundamental rights of citizenship, the framers regularly included a long list of fundamental rights—such as the right of access to the courts, the right to freedom of movement, the right to bodily integrity, and the right to have a family and direct the upbringing of one’s children—that have no obvious textual basis in the Bill of Rights.  These were core rights of personal liberty and personal security that belong to “citizens of all free governments;” it did not matter that they were not enumerated elsewhere in the Constitution.  The framers’ thinking should hardly be surprising.  The Ninth Amendment affirms that the Constitution protects unenumerated rights; as Steven Calabresi reports, more than three-quarters of state constitutions at the time of the ratification of the Fourteenth Amendment did the same.

….

There is an important lesson here.  For too long, progressives have ceded the Constitution’s text and history to conservatives, staking their claim more on the Supreme Court’s interpretation of the Constitution than the document itself.  This has been doubly damning.  On the Court, Justice Scalia has gotten far too little push back on his reading of the Constitution’s text and history—a reading that views the Reconstruction Amendments as minor tinkering around the edges of our original Constitution.  No one on the Court consistently challenges Scalia on how to read the Constitution’s text and history.  Off the Court, Republican presidents and politicians argue that we need more Justices like Scalia who are committed to the Constitution’s text and history, while Democratic politicians all too often talk about the results of cases they care about, not the Constitution.  For many, this leaves the impression that progressives don’t care about the Constitution’s text and history.

That is why it is so important for progressives to engage in the coming debates about the Privileges or Immunities Clause, and its role in protecting substantive fundamental rights.  Progressives may not like the individual, Second Amendment right recognized in Heller, but they cannot afford to sit out the upcoming fight over the incorporation of the Second Amendment.  Instead, progressives should treat these incorporation cases as a tremendous opportunity.  For years, debates over the Fourteenth Amendment’s protections have run aground, a casualty of persistent attacks that the Court had no basis to use the Due Process Clause to protect fundamental rights.  Now is the chance to change the American constitutional conversation about fundamental human and civil rights. Progressives have the chance to rejuvenate the Clause in the Fourteenth Amendment that was meant to protect the substantive liberty of all Americans, and to show how the Constitution’s text and history support the Supreme Court’s existing fundamental rights jurisprudence.  With a text that explicitly protects the substantive liberties of all Americans finally back in the Constitution, claims that the Court has no textual basis to safeguard substantive constitutional rights would lose their force, and the protection of fundamental constitutional rights would be on secure textual footing.

Posting of Doug Kendall and David H. Gans to Text & History, http://theusconstitution.org/blog.history/?p=469 (Dec. 15, 2008, 04:58 EST).

[3] Heller, 128 S. Ct. at 2817-18.  The common use standard is entirely adequate for resolving a broad category of claims.  It is especially suited to resolving challenges to supply restrictions—i.e., gun bans of various types.  On the other hand, Heller’s common use standard is insufficient for evaluating regulations that just add friction to exercise of the right.  It is at this stage pure speculation how the jurisprudence for resolving those types of questions will evolve.  For discussion of the possibilities see Nicholas J. Johnson, Administering the Second Amendment: Law, Politics and Taxonomy, 50 Santa Clara L. Rev.  (forthcoming 2010) [hereinafter Administering].

[4] See Stephen P. Halbrook, Firearms Law Deskbook 10:10 (2007).

[5] Heller, 128 S.Ct at 2815.

[6] See Alexander Rose, American Rifle (2008) for a nice rendition of this story.  Rose explains, for example, that guns of nominally the same caliber would actually have had different bore diameters because tooling was handmade and non-standardized.

Nicholas J. Johnson, Imagining Gun Control in America:  Understanding the Remainder Problem, 43 Wake Forest L. Rev. 837 (2008) (broadly evaluating the viability of various gun control measures on the assumption that Heller is overturned).  See also Nat’l Research Council of the Nat’l Academies, Firearms and Violence: A Critical Review  (2005), for an agnostic assessment of the effectiveness of existing gun regulations.

[8] See Johnson, supra note 7, at 838.

[9] For detailed illustrations of firearms parts see http://www.gunparts.com and http://www.brownells.com (search for name of firearm).

[10] For example, the .308 Winchester, .30-06 Springfield and .300 Winchester magnum all have a 30 caliber (or .308 inch) bore diameter and will fire identical bullets.  However, the chambers of these guns and the brass cases (holding the powder and the bullet) that fits into the chamber are different sizes.  So the destructive energy of the .30-06 is greater than that of the .308 and the 300 magnum is more destructive than both of them.

[11] For detailed and illustrated description of these terms see Hornaday Company Ballistics Resource Guide, http://www.hornady.com/ballistics-resource (last visited April 2, 2010).

[12] Composition of the case might sometimes be considered a separate variable.  See for example the Voere rifle platform that uses caseless ammunition.  Voere, http://www.voere.com.

[13] Consider for example the New Jersey ban on hollow point handgun ammunition, infra.

[14] Again caliber/muzzle diameter alone does not dictate ballistic energy.  Two .30 caliber rifles (three-tenths of an inch) can produce dramatically different ballistic energy depending on the size of the chamber/case dimensions.  So a very precise analysis might strictly account for both muzzle diameter and chamber dimensions; some of the standards that are useful for addressing the common use question have failed to incorporate this detail.

[15] See 26 U.S.C. § 53 (1987).

[16] See Machine Guns, Destructive Devices, and Certain Other Firearms, 27 C.F.R. 479 (2003).

[17] Heller, 128 S. Ct. at 2817.

Imagine a handgun that put the energy of the powerful (for a handgun) .45 ACP in the platform of a relatively anemic .32 auto while generating no additional recoil.  The downrange performance of the gun would be undeniably common.  So ballistically it would be no more deadly than guns made 100 years ago.  The platform from which it is launched is common in terms of its basic mechanics.  But ergonomically it would be much more effective.  Practically speaking the opportunity for this argument is limited, because developments in firearms technology tend to be evolutionary rather than revolutionary.  If the improvements continue to unfold in very small steps that filter into the market over time, the pool of common firearms will grow apace with the evolution of gun technology.

Moreover, it is easy to anticipate fights about what is evolutionary and what is revolutionary.  Again I think that decision turns largely on one’s starting bias.  One example of the question in the military context is how to characterize the move from the hand-cranked technology of the Gatling gun to the recoil operated repeating technology of the Maxim machine gun (Hiram Maxim WWI).  This was evolutionary in the sense that it was a different variation on repeating technology.  It was revolutionary in that the methodology, recoil operation, was very different mechanically.  So depending on which view of such stories we privilege, the level of protection Heller offers to the new technology will vary.

[19] Act of Sept. 13, 1994, Pub. L. 103-322, § 110105, 108 Stat. 1796 (expired Sept. 13, 2004).

[20] See id. The law also banned pistol magazines with a capacity in excess of ten rounds.  David Kopel provides a detailed description and analysis of the ban and the assault weapons question generally in David B. Kopel, Guns: Who Should Have Them 159-232 (1995).

[21] For treatment of the effect of the 1994 ban and the politics surrounding its expiration, see Nicholas J. Johnson, A Second Amendment Moment: The Constitutional Politics of Gun Control, 71 Brook L. Rev. 715, 781-785 (2005) [hereinafter Constitutional Politics].  For treatment of semiautomatic as a category, see Nicholas J. Johnson, Supply Restrictions at the Margins of Heller and the Abortion Analogue:  Stenberg Principles, Assault Weapons and the Attitudinalist Critique, 60 Hastings L.J. 1285 (2009) [hereinafter Supply Restrictions].

[22] See Johnson, Supply Restrictions, supra note 21.

[23] See Nicholas J. Johnson, Shots Across No Man’s Land: A Response to Handgun Control, Inc.’s Richard Aborn, 22 Ford. Urb. L.J. 441 (1995).

[24] Id. See also Johnson, Supply Restrictions, supra note 21.

[25] See Johnson, Supply Restrictions, supra note 21. For a detailed description of shotgun performance and a graphic illustration of shotgun wounding capacity that some will find disturbing, see Firearmsid.com Shotgun Pattern Testing, http://www.firearmsid.com/A_distshotpatt.htm (last visited Mar. 29, 2010).

David Hemenway and Elizabeth Richardson, Characteristics of Automatic or Semiautomatic Firearm Ownership in the United States, 87 Am. J. Pub. Health 286, 287 (1997).

[27] In appearance, the AR-15 resembles the fully automatic M-16 that is the standard infantry rifle of the U.S. military.  Images are available at http://images.google.com/images?q=ar+15.

[28] See Johnson, Supply Restrictions, supra note 21, at 1295-96.

[29] See Johnson, Supply Restrictions, supra note 21, at 1295.

[30] One can imagine restrictions that would try to distinguish between the widely owned semiautomatics and those that are obscure.  Such an analysis would turn on points of judgment that will be tempered by the bias that decision makers bring to the question. Those arguments would attempt to distinguish between the ubiquitous AR-15 and some other more obscure semiautomatic rifle on grounds of peripheral functional differences. Honest application of the common use standard makes those arguments difficult to sustain.  We witnessed these types of distinctions under the 1994 Assault Weapons Ban and it took a decade for mainstream commentators to appreciate that most of those distinctions were unhelpful.

U.S. v. Miller, 307 U.S. 174 (1938).

[32] Miller’s statement that the arms protected by the Second Amendment must bear some reasonable relationship to the preservation or efficiency of the militia was elevated by the collective rights advocates.  Miller’s embrace of the traditional view of the militia as the body of the people bearing their own private firearms was elevated by individual rights advocates.

[33] See Brandon P. Denning, Can the Simple Cite be Trusted?: Lower Court Interpretations of United States v. Miller and the Second Amendment, 26 Cumb. L. Rev. 961 (1996); Nicholas J. Johnson, Testing The States’ Rights Second Amendment for Content: A Showdown Between Federal Environmental Closure of Firing Ranges and Protective State Legislation, 38 Ind. L. Rev. 689 (2005).

See Miller v. California, 413 U.S. 15 (1973).

[35] It is interesting to consider that under this approach states might claim more discretion than Congress to regulate around the edges of Heller.

[36] First, adoption of the pornography analogy would repudiate the Heller decision and elevate Justice Breyer’s dissent.  Second, gun ban legislation typically keys on the fact that particular guns are alleged to be especially effective.  I have argued in detail that the special marginal utility standard that the Court has employed in abortion cases is the most apt methodology for addressing these questions.  Under that standard, if a methodology has peculiar utility for the preservation of life or health of the mother, it is robustly protected.  In the firearms context, regulations that key on the special effectiveness of certain guns in common use are highly suspect because the same functions that drive the gun ban are also valuable for self-defense.  These types of gun bans labor under a regulatory paradox—the features that make the gun problematic in the hands of criminals make it especially useful for legitimate self-defense.  So the argument that guns like the AR-15 impose special externalities is also an admission that they have special marginal utility for self-defense and therefore deserve robust constitutional protection.  See Johnson, Supply Restrictions, supra note 21.  Contrast this with the pornography standard, which seeks to identify content that has no redeeming social value.

[37] See, e.g., Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, UCLA L. Rev. (forthcoming 2010), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1324757&rec=1&srcabs=1369783.

Images are available at http://images.google.com/images?q=baby+browning.

[39] See Patrick S. Davies, Saturday Night Specials: A “Special” Exception in Strict Liability Law, 61 Notre Dame L. Rev. 478 (1986).

[40] Id. at 770-77.

[41] Images are available at http://images.google.com/images?q=cane+gun.

Supra note 15.

[43] Colonel Jeff Cooper, USMC, (Ret.) was an iconic firearms instructor and writer, who developed the “Modern Technique of the Pistol.” See Gregory B. Morrison & Jeff Cooper, The Modern Technique of the Pistol (1991).

[44] See Johnson, Constitutional Politics, supra note 21 at 747-64.  “Shall issue” statutes remove the discretion from the permitting officer.  If the applicant qualifies under the terms of the statute, the administrator shall issue the permit.

[45] I have argued in detail elsewhere that the common use standard could be properly and usefully supplemented with the “special marginal utility” filter the Court has employed in the abortion cases.  See Johnson, Supply Restrictions, supra note 21.  Under that standard, if a methodology has peculiar utility for preservation of life or health of the mother, it is robustly protected.  Applied to the firearms self-defense case, this permits the argument that the state might properly restrict certain technologies that 1) impose special public risks or externalities and 2) are never the best firearms technology for preserving life. This standard has something for both sides to love and hate.  Consider first the cheap, poorly made, and poorly functioning gun that is a hazard to the user—e.g., the poorly defined “Saturday night special” or particular diminutive guns banned from importation under the 1968 Gun Control Act.  By some estimates, those guns are more likely to become crime guns. Under the special marginal utility filter these guns might be banned on the argument that they are never the best tool for self-defense.  However, this same principle also allows the argument that guns like the AR-15 have true special marginal utility in a range of self-defense scenarios and therefore deserve robust constitutional protection.  Id.

[46] Constitutional protection of guns in common use for self-defense puts an end to the legitimate sporting use filter, which was introduced by the 1968 Gun Control Act at the behest of domestic gun makers to reduce competition from imported guns.  The standard trickled into the general pre-Heller debate about what guns were legitimate.  Now that Heller has placed self-defense at the core of the constitutional right, the sporting use question is irrelevant.  See Johnson, Supply Restrictions, supra note 21; Johnson, Imagining Gun Control, supra note 7.

[47] Johnson, Imagining Gun Control, supra note 7.

[48] Additionally there are good reasons to believe that the failed attempt generally will make things worse.  Id.

[49] It is possible to imagine future scenarios where supply restrictions actually might generate real benefits in anti-violence policy.  For example, one can imagine that new firearms technologies might emerge that would give law enforcement the edge in confrontations with criminals.  This would in turn generate arguments that the technology should be and can be prohibited to civilians.  Such prohibitions would not eliminate or really even reduce conventional gun crime, but would not be a complete waste of time.

See Johnson, Administering, supra note 3.

“Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Heller, 128 S. Ct. at 2816-17.  For an assessment of gun control laws that might have real effect in the current environment see Johnson, Imagining Gun Control, supra note 7.  For an assessment of gun control laws that are likely to survive challenges under Heller, some that are unlikely to survive, and some that raise tough questions that go beyond Heller, see Johnson, Administering, supra note 3.

[52] On average, the civilian inventory of 300 million guns grows at about one percent per year. Between 500,000 and one million guns are stolen from the existing inventory each year. Johnson, Imagining Gun Control, supra note 7, at 857.

This past term, in Ricci v. DeStefano,[1] the Supreme Court reshaped employment discrimination litigation. In a decision that garnered significant notoriety both for its potential impact on the future of Title VII of the Civil Rights Act of 1964 and its ties to then-Supreme Court nominee Sonia Sotomayor,[2] the Court held that the City of New Haven had violated Title VII by disregarding the results of a promotional examination for the City’s firefighters.  As white firefighters generally had outperformed minority candidates on that examination, only white firefighters would have moved up the ranks within the New Haven fire department.

The decision attracted substantial criticism[3] as well as praise,[4] and the case is guaranteed to be the subject of ongoing critical commentary.  Future scholarly discussions will inevitably focus on how the Court either departed from or remained true to its past precedents in employment discrimination cases under Title VII.  These pieces will take on broad issues, such as anticipating the impact that Ricci will have on employment discrimination litigation or the future of Title VII and disparate treatment and disparate impact claims under the Fourteenth Amendment’s Equal Protection Clause—all worthy areas of discussion.

Rather than entering the academic debate on these broad topics, we have one focused and forward-looking purpose: to help lawyers understand how statistics can and should guide litigation under the Supreme Court’s most recent precedent.  The Ricci precedent requires that an employer have a “strong basis in evidence” for its fear that it will face disparate impact liability before taking remedial measures to avoid it.  Essentially, before employers can invalidate or disregard results based on racially disparate outcomes, employers must generate tangible proof that either their tests or assessments did not measure what they should have measured, or that the employer could have analyzed the results in a way that would have lead to less discriminatory, but equally valid results.  We argue that litigators can meet that burden through statistical techniques that are specifically geared toward gauging how a test or performance assessment may be biased in favor of one group or against another.  These statistical concepts may be foreign to practicing attorneys, who would understandably shy away from them because of their apparent complexity, yet they may provide an opportunity for meeting the evidentiary burden established by the Supreme Court this past term.

The first part of this article provides a brief synopsis of the Ricci decision and the Court’s key holding.  We then identify how the Ricci decision presents the opportunity for practicing lawyers to demonstrate a “strong basis in evidence,” particularly in light of the case’s explicit references to the role of statistical evidence in Title VII cases.  We conclude by identifying the key statistical concepts that can help guide attorneys in making or challenging a claim under the Supreme Court’s most recent precedent and by proposing a collaboration that would facilitate the appropriate use of these statistical techniques in future litigation.

I. The Ricci Decision

In Ricci, a group of firefighters from the City of New Haven challenged the City’s refusal to certify the results of a promotional examination on which white candidates for promotion had outperformed African-American and Hispanic candidates.[5] The City, fearing that minority candidates would sue on the basis of disparate impact liability if only white candidates moved up in the ranks, decided to discard the examination results.  The Ricci plaintiffs, comprised of seventeen white firefighters and one Hispanic firefighter, alleged that the City’s action had violated both Title VII of the Civil Rights Act of 1964 and the Fourteenth Amendment’s Equal Protection Clause.  Justice Anthony Kennedy, writing for a five-justice majority, held that the City’s refusal to certify the examination results in order to avoid only white firefighters securing promotions was a violation of Title VII, which prohibits disparate treatment on the basis of race.[6]

The majority held that before an employer could engage in intentional discrimination[7] with the stated purpose of avoiding the use of a test that could lead to disparate impact, the employer must have a “strong basis in evidence” to support its belief that disparate impact liability would follow without such action.[8] This is the standard that the Court had applied in earlier cases brought under the Fourteenth Amendment’s Equal Protection Clause.  For example, in Wygant v. Jackson Board of Education, the Court concluded that “[e]videntiary support for the conclusion that remedial action is warranted becomes crucial when the remedial program is challenged in court by non-minority employees.”[9]

In that context, the standard struck a balance between the competing goals of eliminating segregation and discrimination through the use of remedial measures on the one hand and eliminating any form of race-based discrimination by the government, including the use of remedial measures, on the other.  In Ricci, the Court imported this standard to reconcile what it found to be the similarly competing prohibitions on disparate treatment and disparate impact in Title VII.  Significantly, Ricci is now the key reference point for any employer covered by Title VII[10] that wishes to remedy what it perceives as disparate impact through action designed to offset or balance such an outcome.

II. Identifying a “Strong Basis in Evidence”

The Ricci case turned on the City’s failure to meet its burden under the Court’s “strong basis in evidence” standard.  Although it is unclear what exactly constitutes a strong basis in evidence that an employer will face disparate impact liability under the Court’s newly minted precedent, there are some guidelines from the case itself.  The Ricci decision makes clear that the mere fear of litigation based on the disparate impact of a test or assessment is insufficient to trigger an employer’s ability to intentionally discriminate on the basis of race under Title VII, even when an employer aims to correct what it perceives as an unfair or undesirable outcome.  However, the Court’s statement affords little guidance in contemporary Title VII litigation, as municipalities and their lawyers are well aware of the need to be ready to justify their actions with tangible evidence.

Indeed, in Ricci itself, the City of New Haven did not simply assert an unsupported fear of litigation as the basis for its actions.[11] For example, Justice Ginsburg’s dissent noted that the City employed testing techniques that were outside of the mainstream, having relied on oral and written examinations when other jurisdictions used real-world simulations.[12] Moreover, the New Haven officials were faced with striking numerical disparities.  For example, the pass rates for African-American and Hispanic candidates for captain were approximately one half of those for white candidates for the position.[13]

The cases argued in the wake of the Ricci decision will be those in which an employer covered by Title VII amasses some evidence to justify its use of intentional discrimination to avoid disparate impact liability.  In this type of case, two questions are key: (1) What type of evidence is required to constitute a “strong basis in evidence”?, and (2) How much evidence must a plaintiff or defendant gather to support her position?  The majority opinion does not answer these questions, but in rejecting the City of New Haven’s evidence, the Court did give some important signals as to where future defendants may fall short.

The majority opinion presented two alternative avenues for an employer to make a sufficient showing under the “strong basis” standard.  The Court held that for it to find that the City’s actions were justified, the City would have to make one of two showings: either that the promotional examination “[was] not job related and consistent with business necessity,” or that “there existed an equally valid, less-discriminatory alternative that served the City’s needs but that the City refused to adopt.”[14] With respect to the former ground, the Court stated that there was “no genuine dispute that the examinations were job-related and consistent with business necessity.”[15] In particular, the majority rejected the City of New Haven’s arguments that the examination did not test the appropriate skills.  The Court placed fault with the City for not requesting a more detailed report of the examination’s validity, even though such a report had been available.[16] That report could potentially have served as evidence to support the City’s arguments.

With respect to the latter ground, the Court rejected the City’s claim that there was an alternative way of calculating the results of the promotional exam that would have both benefitted African-American candidates and been an equally valid assessment of the skills relevant to promotion.  Specifically, the Court noted that the City neither produced evidence that the existing methodology for evaluating the exam results was arbitrary, nor pinpointed a specific alternative formula for generating less discriminatory but equally valid results. Indeed, the Court explicitly stated that the City “[could not] create a genuine issue of fact based on a few stray . . . statements in the record” made by the psychologist who was hired by the City to help develop the exam.[17] In short, the Court required more than just an abstract statement of what may or may not have been possible; an actual alternative way of analyzing the results was a must.

III. Using Statistics to Make (or Break) A Claim In A Post-Ricci World

Ricci’s take-home message is that employers looking to use intentional discrimination as a way of avoiding disparate impact liability face a high hurdle before taking such action; the Supreme Court has made clear that anything short of very persuasive evidence will fail to satisfy the “strong basis in evidence” standard.  Yet the Ricci decision itself does not present litigants with a roadmap of how to sustain their burden under this precedent.

We outline two statistical concepts that can help lawyers focus and articulate their arguments in a post-Ricci world: measurement validity and test bias or measurement invariance.[18] We have selected these two areas because they best capture the overall concerns raised by the Court when it articulated its “strong basis” standard.  Further, encouraging litigants on both sides of future cases to present their evidence and arguments in these terms will provide a common, coherent basis for generating case law in the lower federal courts under the Ricci precedent.[19]

A. Measurement Validity

Under Ricci, the first way of demonstrating a strong basis in evidence is to show that an assessment or examination “[is] not job related and consistent with business necessity.”[20] From a statistical standpoint, that determination requires an answer to the following question: “Does the test measure what it intends to measure?”[21] Thus, one must ensure that an instrument measures skills that are relevant to the assessed attribute; this concept is generally known as construct validity.  One must also establish criterion-related validity, which refers to the extent to which the assessment instrument estimates the desired criterion or external attribute in a concurrent or predictive manner.  For example, in the case of the New Haven firefighters, a valid instrument would measure the skills that would relate to the potential to excel in a supervisory capacity, and those with high skills and potential would score high on the given test (and vice versa).  Furthermore, to demonstrate validity, individual test questions or assessments must actually tap into the skills that are relevant to the performance of the job.  For example, Justice Ginsburg’s dissent noted that most other jurisdictions had moved away from pencil and paper examinations because real-time simulations provided a better sense of how candidates would actually perform under real-life conditions.[22] However, the majority largely ignored this fact in its analysis.  Thus, proof that a locality uses an outdated or non-mainstream assessment is insufficient to generate a strong basis in evidence under the Court’s new precedent.  However, a systematic statistical analysis aimed at assessing measurement validity may meet the Court’s standard.

Suppose a city wanted to examine the construct validity and reliability of its promotional examination.  Validity addresses the content of assessment, whereas reliability refers to its precision.  In this situation, a suitable approach might involve a multitrait-multimethod (MTMM) study.[23] Ricci can serve as a useful illustration.  In that case, the City of New Haven was presumably evaluating two or more traits related to a firefighters’ excellence in a supervisory capacity—for example, the ability to make sound decisions in high stress situations and the ability to direct resources where they are most needed.  If the City assessed these hypothetical latent traits using two or more methods such as a paper and pencil questionnaire, real-life simulations, and direct observation, it could have utilized an MTMM evaluation.  One of the primary goals of the MTMM study is to parse out the effects of the hypothetical latent trait or ability that the test is designed to measure from the effects of the different methods employed in the assessment (i.e., to distinguish between variability in scores due to differences in the relevant skills, and the variability in scores due to the testing method).

An MTMM study also allows researchers to evaluate the construct validity of a set of assessments that use different methods.  Specifically, researchers can look at both convergent and discriminant validity, both of which are components of construct validity.  Convergent validity taps into how well measures of the same latent trait or ability that are related based on theory ultimately relate to each other based on the data.  The observed agreement between those measures is an indicator of convergent validity.  Discriminant validity serves a different function, aiming to identify the extent to which individual measures discriminate between theoretically different traits or abilities.

A preliminary approach to evaluating these two components of construct validity would involve examining the correlation matrix of scores from all variables—essentially, a table that lists correlations between each item on the assessment and every other item.  High correlation among variables assessing the same latent trait or ability that were obtained by different methods would provide evidence of convergent validity; a relatively low correlation among variables assessing different constructs with different methods would suggest evidence of discriminant validity.  In other words, that evidence could support the claim that the measurements not only tap into the same trait or ability, but that they also successfully distinguish between the desired trait and other potential skills.  In addition to a basic examination of a correlation matrix, more advanced statistical procedures such as confirmatory factor analysis are available to answer questions related to the validity and reliability of multiple constructs and assessment methods.[24]

These are certainly not the only ways to assess measurement validity.  However, they are relevant examples of a systematic approach that could have strengthened the arguments of either side, particularly because the importance of measurement validity was something on which the majority and dissent both agreed.  The majority explicitly faulted the City of New Haven for failing to request a more detailed report on the test’s relation to skills relevant to promotion[25]—a criticism that rang hollow according to Justice Ginsburg, who argued that the consultants who generated the instrument were not equipped to provide that information.[26] Although the majority and dissent disagreed about the City’s ability to obtain this information and the importance of that fact to the City’s case, both sides recognized the relevance of that information to such a showing.  Therefore, these statistical concepts should be at the center of the parties’ arguments in future cases.  Further, litigators should remember that it is not the test itself, but the interpretation of test results that concerns validation efforts.  In other words, although a test generates data in the form of individual responses, it is the soundness of the inferences drawn from those responses that matter most.

B. Test Bias or Measurement Invariance

The second way for an employer to demonstrate a strong basis in evidence is to show that “there existed an equally valid, less-discriminatory alternative that served the City’s needs but that the City refused to adopt.”[27] Under this standard, an employer needs to muster tangible proof of bias in favor of a certain group before it contemplates abandoning existing results and resorting to an alternative assessment.  A first step in making such a showing would be to demonstrate that the existing instrument does discriminate in favor or against a certain group on a basis that is irrelevant to the task at hand (i.e., unrelated to the ability or characteristic that is intended to assess).  In statistics, this concept is known as measurement or test bias. Measurement invariance represents the absence of this type of measurement bias.[28]

The concept of measurement invariance recognizes that in addition to one’s achievement in a given subject or one’s knowledge of a specific area, many other factors can influence a person’s performance on a test of achievement—factors that do not have a direct bearing on the skills assessed.  Some of these factors may represent a random measurement error such as those related to idiosyncrasies of the testing process (e.g., a test taker’s fatigue on a given day).  The amount of random measurement error is inversely related to the reliability of the assessment instrument.  Other factors may be more systematic and include the test taker’s general anxiety level or experience in taking a test in a given format.  Furthermore, some of these factors may be related to an individual’s group membership or demographic characteristics, such as socio-economic status or ethnic or racial background.[29] In other words, while random error is related to measurement precision, systematic measurement error is related to measurement bias or nonequivalence.  In statistics, measurement invariance or equivalence is achieved when individuals with equal ability have equal test scores regardless of the group or groups to which these individuals happen to belong.

In Ricci, measurement invariance (or conversely measurement bias) appeared to be a significant issue for the promotional examinations, yet neither party addressed it in any systematic way.  For example, the majority cited a statistician who had asserted that “most of the literature on firefighters shows that the different [racial] groups perform the job differently.”[30] Further, it is possible that additional research using the New Haven data, if it were made publicly available, would confirm what numerous research studies on the performance of ethnic minority test-takers have revealed—namely, that factors such as negative stereotype threat (rooted in the experience of prejudice and discrimination), not lower ability, influenced the test performance of the African-American firefighters.[31]

Assuming that the City of New Haven (or another employer) wanted to determine if stereotype threat or other factors unrelated to the assessed ability could explain disparities in test results, they would have several statistical tools at their disposal.  Historically, researchers examined test bias using what are known as invariant predictive models.  In those models, a criterion, such as occupational achievement or success, was regressed on the test scores, meaning that researchers looked at how one’s occupational achievement or success would vary depending on his or her test scores.  Test bias was established when there was evidence of difference in regression function (i.e., a different predictive relationship among the assessed variables) for members of different groups, such as males and females or different ethnic groups.  However, in the past few years, statisticians and psychometricians have highlighted the measurement invariance model as a more viable and appealing alternative to invariant predictive models.  The measurement invariance model focuses not on the predictive relationships between the observed test scores and the future outcome, but instead on the relationship between the test scores and the latent attribute that the test is designed to assess.[32] In the case of Ricci, that latent attribute was the ability to serve as a leader within the ranks of the fire department.

The technical details of measurement invariance analyses are beyond the scope of this editorial.  However, we mention two general approaches to assessing measurement invariance for illustration.  One technique is embedded within the structural equation modeling framework and utilizes confirmatory factor analytic techniques.[33] The general idea behind the analysis is to compare a series of models specifying the relationship between the test items and the latent attribute: in one set of models the relationships are set to not vary by group, and in the other the relationships are freely estimated based on the observed data.  The statistical fit of the two models is then compared.  That permits researchers to identify whether the data and instrument depart from the goal of measurement invariance across groups.

Another technique, based on Item Response Theory (IRT), can examine differential item functioning to assess measurement invariance.[34] When using IRT, researchers identify a set of item parameters that are unique for each item (such as the item difficulty and discrimination, or the extent to which the specific item discriminates between individuals of varying ability).  Based on the observed item responses (given the item parameters), the underlying latent trait or ability is estimated for each test taker.  This parametrization allows researchers to examine whether certain groups demonstrate a different probability of giving a correct response on a test, even when they share the same ability or skill level.  These two general approaches are analytically distinct,[35] and deciding on and actually performing either one requires consultation with a statistician or psychometrician trained in these techniques; however, they are both tools that can address the concerns discussed above.

Neither party in Ricci utilized these tools to justify or reject the need to take remedial measures on the basis of race in light of the significant disparities in the exam results.  Evidence from this type of analysis would square particularly well with the majority’s concerns in Ricci. To support this claim, it is important to remember the basis on which the Court rejected the City’s claim that it could have analyzed the examination results in a way that would not have generated the same racial disparities.  The Court rejected the City’s claim not because it thought that such a showing would be insufficient, but because the City had not provided any concrete evidence that such an alternative existed.[36]

In short, a statistical analysis that demonstrated a lack of measurement invariance—that is, that the test produced systematically biased results by favoring members of a certain group over another of equal ability—could provide the tangible basis for the need to consider less discriminatory assessment alternatives.  Lawyers who articulated their arguments in these terms and provided the statistical analyses to support them would make a viable case that the strong basis in evidence test had been satisfied.

***

For practicing lawyers in the employment discrimination field, Ricci is a watershed moment for Title VII.  The case is certain to have a significant impact on employers, who now face a higher hurdle when taking actions on the basis of race to avoid disparate impact liability.  It is unclear where the Court will ultimately set the bar with respect to the type and quantum of proof required under the Ricci standard; indeed, any such prediction is difficult due to the fact-dependent nature of these cases.  Yet, in elaborating these statistical concepts, we have identified the tools that we believe best track the majority’s concerns and equip attorneys with a vocabulary for making their case in future litigation.

Although these concepts hold definite value for future disputes under this recent precedent, these concepts hold their greatest value for employers at an early stage: when designing and testing prospective tests or assessments.  The Ricci majority itself, although rejecting the City of New Haven’s subsequent attempt to correct for what it perceived to be an undesirable result, recognized that “Title VII does not prohibit an employer from considering, before administering a test or practice, how to design that test or practice in order to provide a fair opportunity for all individuals, regardless of their race.”[37]

In light of the high bar set by the Supreme Court in Ricci, employers looking to establish equitable and appropriate assessments should turn to these statistical tools before administering those instruments.  Colleges and universities throughout the country have professionals who are trained in these techniques and who could help ensure their proper application.  Such collaboration would help to achieve the result that the City of New Haven intended, but without requiring the drastic remedy of throwing out the examination results of 118 applicants—and without generating the threat of future litigation.[38]

Katarina Guttmannova, Ph.D., 2004, University of Montana, Missoula. Dr. Guttmannova is a Research Scientist at the Social Development Research Group, School of Social Work at the University of Washington.

[1] Ricci v. DeStefano, 129 S. Ct. 2658 (2009).

[2] Sotomayor was a member of the Second Circuit panel that summarily affirmed the district court opinion in the case.  The district court had held that the defendant’s attempt to remedy the disparate impact of its promotional exam by disregarding the results “[was] not equivalent to an intent to discriminate against non-minority applicants.”  Ricci v. DeStefano, 554 F. Supp. 2d 142, 158 (D. Conn. 2006), aff’d 530 F.3d 87 (2d Cir. 2008) (per curiam).

[3] See, e.g., David A. Drachsler, Assessing the Practical Repercussions of Ricci, ACS Blog, July 27, 2009, http://www.acslaw.org/node/13829 (last visited Nov. 13, 2009).

[4] See, e.g., Richard A. Epstein, Ricci vs. DeStefano: Getting Back to First Principles of Affirmative Action, Forbes, June 29, 2009, http://www.forbes.com/2009/06/29/ricci-destefano-new-haven-supreme-court-affirmative-action-opinions-columnists-firefighters.html (last visited Nov. 13, 2009).

Of the 77 candidates that took the examination, 43 were white, 19 were African-American, and 15 were Hispanic. Only 34 individuals passed the examination, 25 of whom were white, 6 of whom were African-American, and 3 of whom were Hispanic. The top 10 passing candidates were all white. Ricci, 129 S. Ct. at 2666.

[6] The Court explicitly declined to consider the firefighters’ constitutional claims, having found a statutory basis for its decision. Ricci, 129 S. Ct. at 2681. However, many of the same issues raised by the Ricci decision are likely to arise in a constitutional context as well—a decision that Justice Scalia noted would necessarily follow from this case.  See Ricci, 129 S. Ct. at 2681–82 (Scalia, J., concurring) (noting that “[the] resolution of this dispute merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection?”).

[7] Intentional discrimination, as explained by the Court, involves consciously making a decision on the basis of race.  In Ricci, this involved “invalidat[ing test results] in sole reliance on race-based statistics” that indicated a disparate outcome. Ricci, 129 S. Ct. at 2676.

[8] Ricci, 129 S. Ct. at 2664.

[9] Wygant v. Jackson Board of Education, 476 U.S. 267, 277 (1986).

[10] Title VII’s provisions apply to all private employers, state and local governments, and education institutions that employ fifteen or more individuals, as well as other entities such as labor unions and employment agencies.  See 42 U.S.C. §§ 2000e(b)–2000e(e) (2008).

[11] Ricci, 129 S. Ct. at 2690 (Ginsburg, J., dissenting) (arguing that the majority “ignore[d] substantial evidence of multiple flaws in the tests New Haven used”).

[12] Id. at 2705.

[13] Id. at 2692.

[14] Id. at 2678.

[15] Id.

[16] Id. at 2679.

[17] Id. at 2681.

[18] Although these arguments would help lawyers establish the strong basis in evidence that Ricci requires, they would also be useful in countering such claims.  In this way, these concepts are meant to ensure that prospective plaintiffs and defendants are speaking the same language when it comes to analyzing a given test or assessment.

[19] We do not focus on the issue of weighting here.  Weighting, while related to the general issues of validity, reliability and test bias, is too case-specific for this summary.

[20] Ricci, 129 S. Ct. at 2678.

[21] The following works provide a useful and accessible introduction to the concept of measurement validity. See, e.g., American Educational Research Association, American Psychological Association & the National Council on Measurement in Education, Standards For Educational and Psychological Testing (1999); Herman Aguinis & Marlene A. Smith, Understanding the Impact of Test Validity and Bias on Selection Errors and Adverse Impact in Human Resource Selection, 60 Personnel Psychol. 165 (2007); Michael T. Kane, Current Concerns in Validity Theory, 38 J. Educ. Measurement 319 (2001).

[22] See Ricci, 129 S. Ct. at 2705 (citing a 1996 study that indicated that two-thirds of surveyed municipal employers used simulations as part of their promotional schemes).

[23] This approach was originally developed by and is described in one of the most-cited methodological works in the history of psychology.  See Donald T. Cambell & Donald W. Fiske, Convergent and Discriminant Validation by the Multitrait-Multimethod Matrix, 56 Psychol. Bulletin 56 (1959). For a practical application of the idea and method, see e.g., Herbert W. Marsh & David Grayson, Latent Variable Models of Multitrait-Multimethod Data, Structural Equation Modeling 177-98 (Rick H. Hoyle ed. 1989); Kenneth A. Bollen, Measurement Models: The Relation Between Latent and Observed Variables, Structural Equations with Latent Variables 179-225 (Kenneth A. Bollen ed. 1989).  For an overview of the historical connections and theoretical background on construct validation in clinical psychology, see Milton E. Strauss & Gregory T. Smith, Construct Validity: Advances in Theory and Methodology, 5 Ann. Rev. Clinical Psychol. 1 (2009).

[24] For additional practical examples and extensions of the MTMM approach, see, e.g., David A. Kenny & Deborah A. Kashy, Analysis of the Multitrait-Multimethod Matrix by Confirmatory Factor Analysis, 112 Psychol. Bulletin 165 (1992); Charles S. Reichard & S.C. Coleman, The Criteria for Convergent and Discriminant Validity in A Multitrait-Multimethod Matrix, 30 Multivariate Behavioral Research 513 (1995); Charles E. Lance, Carrie L. Noble & Steven E. Scullen, A Critique of the Correlated Trait—Correlated Method and Correlated Uniqueness Model for Multitrait-Multimethod Data, 7 Psychol. Methods 228 (2002).

[25] Ricci, 129 S. Ct. at 2679.

[26] Ricci, 129 S. Ct. at 2707 (Ginsburg, J., dissenting) (arguing the report would have “merely summarized the steps that [the consultants] took methodologically speaking, and would not have established the exams’ reliability”) (quotation marks omitted).

[27] Id. at 2678.

[28] For an introduction to measurement invariance and its application, see, e.g., Robert J. Vandenberg & Charles E. Lance, A Review and Synthesis of the Measurement Invariance Literature: Suggestions, Practices, and Recommendations for Organizational Research, 3 Org. Research Methods 4 (2000); Steven P. Reise, Keith F. Widaman & Robin H. Pugh, Confirmatory Factor Analysis and Item Response Theory: Two Approaches for Exploring Measurement Invariance, 114 Psychol. Bulletin 552 (1993).

[29] For a more extensive exploration of this issue, see, e.g., Katarina Guttmannova, Jason M. Szanyi & Philip W. Cali, Internalizing and Externalizing Behavior Problem Scores: Cross-ethnic and Longitudinal Measurement Invariance of the Behavior Problem Index, 68 Educ. & Psychol. Measurement 676, 679–80 (2008).  For additional examples of how researchers have examined measurement invariance in achievement tests and other assessments, see Shudong Wang & Hong Jiao, Construct Equivalence Across Grades in a Vertical Scale for a K-12 Large-Scale Reading Assessment, 69 Educ. & Psychol. Measurement 760 (2009) (investigation measurement invariance of large-scale reading comprehension assessment program across elementary and secondary grades); Niels G. Waller et al., Using IRT to Separate Measurement Bias from True Group Differences on Homogeneous and Heterogeneous Scales: An Illustration with the MMPI, 5 Pyschol. Methods 125 (2000) (using Item Response Theory to demonstrate difference between measurement bias and true group differences on a popular personality test frequently used to assess adult psychopathology).

[30] Ricci, 129 S. Ct. at 2669.

[31] For an introduction to the concept of stereotype threat, see Claude M. Steele, A Threat in the Air: How Stereotypes Shape Intellectual Identity and Performance, 52 Am. Psychologist 613 (1997).  Two social psychologists maintain a website that outlines the concept of stereotype threat in greater detail and includes the latest research studies on the topic: Reducing Stereotype Threat, http://www.reducingstereotypethreat.org (last visited Jan. 6, 2009).

[32] For a review of this work and extensions of this approach, see Denny Borsboom, Jan-Willem Romeijn & Jelte M. Wicherts, Measurement Invariance Versus Selection Invariance: Is Fair Selection Possible?, 13 Psychol. Methods 75 (2008); Roger E. Millsap, Invariance in Measurement and Prediction, Revisited, 72 Psychometrika 461, 461 (2007) (noting that “[t]he body of work on invariance in measurement and prediction has yet to have much impact on measurement practice”).

[33] For additional explanation of the details of this methodology, see John L. Horn & J.J. McArdle, A Practical and Theoretical Guide to Measurement Invariance in Aging Research, 18 Experimental Aging Research 117 (1992); Robert J. Vandenberg, Toward a Further Understanding of an Improvement in Measurement Invariance Methods and Procedures, 5 Organizational Research Methods 139 (2002); Vandenberg & Lance, supra note 28.

[34] For a good introduction to IRT methods, see Susan E Embretson & Stephen P. Reise, Item Response Theory for Psychologists (2000).

[35] Stephen P. Reise et al., Confirmatory Factor Analysis and Item Response Theory: Two Approaches for Exploring Measurement Invariance, 114 Psychol. Bulletin 552 (1993).

[36] Ricci v. DeStefano, 129 S. Ct. 2658, 2679 (2009).

[37] Ricci, 129 S. Ct. at 2677 (emphasis added).

Preferred Citation: Jason M. Szanyi and Katarina Guttmannova, Presenting a “Strong Basis in Evidence”: How Lawyers Should Use Statistics to Shape the Impact of Ricci v. DeStefano on Title VII Litigation, 4 Harv. L. & Pol’y Rev. (Online) (Feb. 4, 2010), http://www.hlpronline.com/2010/02/szanyi-guttmannova.

When Charles Apprendi fired two .22 caliber gunshots into the home of the first African-American family to move into a previously all-white New Jersey neighborhood, he could not have known that those shots would ring throughout federal constitutional procedure. After pleading guilty to two counts of second-degree possession of a firearm with an unlawful purpose, Apprendi faced a sentencing range of ten to twenty years of imprisonment. The State then motioned for an enhanced sentence under New Jersey’s hate crime statute and argued that Apprendi committed the crime for a biased purpose. The judge held an evidentiary hearing and concluded by a preponderance of the evidence that the “crime was motivated by racial bias” and that Apprendi had the “intention to intimidate.” Based on these findings, the judge elevated the relevant maximum sentence from twenty years for the two second-degree counts to an aggregate thirty years of imprisonment—ten years above the maximum punishment available on the basis of the guilty plea alone.

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In Gonzales v. Carhart, the Court reversed course from Stenberg v. Carhart, a decision issued just seven years before and, in a 5-4 decision written by Justice Kennedy, upheld the “Partial-Birth Abortion Ban Act of 2003” (“the Act”). As counsel for the losing side in Gonzales v. Carhart, I joined in bemoaning the decision and what I saw, and still see, as the misapplication and betrayal of many of the principles of Planned Parenthood v. Casey. There is certainly much to decry about the opinion. However, in the months that have passed, I have begun to ask myself what is left. Can we see the glass as half-full nonetheless?

The good news is that there is much in the opinion that reaffirms the Casey framework, and much of that framework remains viable and intact. Specifically, this paper argues that Carhart eliminates neither the core decision-making aspect of the right to abortion, nor the rule that a state may not restrict access to abortions that are “necessary, in appropriate medical judgment, for preservation of the life or health of the mother.” I also argue that the language in Carhart about preventing women from regretting their abortions is sui generis, limited to method bans, like this one, which: 1) the Court believes ban only the intact D&E method of abortion, a procedure the Court finds disgusting and completely without merit for health or any other reasons; and 2) the Court believes would impact only a tiny percentage of abortion procedures, all of which can still be performed by an alternative procedure which the Court believes is just as safe. It is only in these circumstances, and where a regulation does not otherwise impose an undue burden, that “the State may use its regulatory power to bar certain procedures and substitute others.”

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Claims of voter fraud effect a partisan divide, with Republicans generally supporting voter ID laws and Democrats opposing them. The United States Supreme Court has heard argument in two photo ID cases, and will likely resolve the constitutionality of such laws before the 2008 elections. A decision upholding these laws could encourage even more states to adopt such laws, potentially disenfranchising millions.

Lower courts have also issued voter ID decisions, with four upholding ID requirements and two rejecting them.6 In the four cases upholding voter IDs, the courts failed correctly to examine the evidence on voter fraud and adjudicate the constitutional issues. This Article examines the available evidence of voter fraud, contending that is it not admissible and that the courts have generally failed to perform their duty to exclude this faulty evidence. The Article then summarizes the photo ID cases already litigated, offering recommendations on how to argue against these requirements. It challenges the test articulated in Burdick v. Takushi treating the franchise as less than a fundamental right, thereby permitting the adoption of some regulations that adversely impact voting rights.

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Whom can the United States legally hold as an “enemy combatant” at Guantanamo Bay? What actions must an individual take to be subject to detention for the remainder of the “war on terror”? Whom has Congress authorized the President to detain? Whose detention violates the laws of war or the Constitution? These are the big legal questions raised by President Bush’s Guantanamo Bay detention policy, and by his Administration’s larger theory of a war on terror.

Even though the Supreme Court will weigh in on Guantanamo for the third time since 9/11 this Term, and even though the parties in the cases before it – Boumediene v. Bush and al Odah v. United States2 – briefed these issues in detail, the Court seems unlikely to address these questions in its decision.3 Oral argument in the Court’s latest cases ignored the substantive question of whom the President has the power to detain. The Justices never asked the questions that opened this Essay. They never asked what the definition of an “enemy combatant” is, where that definition comes from, or what an individual must do to become an enemy combatant.

Instead, the Justices used their questions to get at another issue: what remedial process, if any, is available to the detainees to challenge their captivity. The Justices’ approach to this case – to first figure out the remedy, and leave the question of the underlying substantive law of detention for another day – is not illogical. If the federal courts lack jurisdiction to hear the challenges of the detainees, then it does not much matter whether the Administration has legal authority to detain them, or whether the detainees have substantive rights to their freedom or criminal trials.

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With its decision in Parker v. District of Columbia, the D.C. Circuit became the first federal appellate court ever to strike down a law under the Second Amendment, which guarantees “the right of the people to keep and bear Arms.” The court in Parker held that provisions of the D.C. Code that ban private possession of handguns and require the safe storage of other weapons violated the Amendment. The Supreme Court mtook the case, now called District of Columbia v. Heller, in November. This Note explains the basic error in the D.C. Circuit’s interpretive approach.
* * *
The District of Columbia all but forbids the private possession of handguns throughout its territory; it does not forbid the possession of shotguns and rifles. The District separately requires a license to carry those handguns that it does allow, and it requires that when residents keep guns of any sort in their homes, they must keep those guns bound by a trigger lock or similar device.6 Dick Heller is a special police officer who carries a handgun while on duty at the federal judicial complex in D.C. In early 2002, Heller challenged the District’s handgun ban, licensing law, and trigger lock requirement in a suit filed in the U.S. District Court for the District of Columbia. Heller claimed that he wanted to keep a handgun at his home in the District to have ready in case he needed to defend himself and that the Second Amendment guaranteed his right to keep the gun for that purpose. The district court dismissed the complaint, holding that the Second Amendment did not protect an “individual right to bear arms separate and apart from Militia use.”

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