Category Archives: Criminal Law

I was in court just before the Christmas break, waiting for a chance to talk to the clerk, and I got to see part of a colleague’s misdemeanor marijuana possession trial. I was very disheartened to see that when it came time for the DEA chemist’s testimony, the defense lawyer did not challenge her qualifications, did not challenge the identification of the seized evidence as marijuana, and did not cross-examine the chemist at all, not even to have the chemist at least list the procedures performed, etc.

And unfortunately, this is the normal standard procedure: every day in courts around the country, defense lawyers play chicken with the government; the defense exercises its confrontation clause rights and insists that the government call the chemist hoping for a no-show, but doesn’t do anything when she does show. The government (and frankly, most judges) would prefer that we just trust the black box of its pseudo-science: this is X drug, because we, the experts, say so.

Civil lawyers intuitively know that experts are fallible, usually in favor of the party paying, and judges also know to treat expert testimony in civil cases with skepticism. But this skepticism goes out the window in criminal cases. If the forensic crime lab scandals of the past few years have taught us nothing else, it’s that we can’t trust the government’s “scientific experts” to be unbiased.   Defendants, our clients, deserve more. Continue reading →