Posted On: June 30, 2009

Supreme Court Holds Defendant has the Right to Cross-Examine Forensic Analysts in Criminal Trials

The Supreme Court of the United States held last week by a 5-4 majority, that a criminal defendant has the right to cross-examine forensic analysts under the Sixth Amendment’s Confrontation Clause. The ruling in Melendez-Diaz v. Massachusetts requires Prosecutors who offer drug, blood, ballistic, or other forensic reports as evidence at trial to call the analyst who prepared the report to testify. This procedure allows the Defense to cross-examine the analyst, rather than the Court simply entering the unchallenged reports as evidence against the Defendant.

In Justice Scalia’s majority opinion, he discussed the importance of the Sixth Amendment’s Confrontation Clause, writing “Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well.” He goes on to state that “serious deficiencies have been found in the forensic evidence used in criminal trials.” In fact, forensic evidence such as DNA is not as full-proof as portrayed on television, but rather can and has led to many mistaken convictions.

Two recent Supreme Court decisions, Crawford v. Washington (2004) and Davis v. Washington (2006), made it more difficult for the Prosecution to enter witness statements into evidence without the witness’ live testimony; however until last weeks decision, forensic evidence had not been discussed. In his dissent, Justice Kennedy worried about how last week’s ruling will affect criminal trials throughout the country. “Until [this decision], scientific analysis could be introduced into evidence without testimony from the ‘analyst’ who produced it...This rule has been established for 90 years. It extends across at least 35 states and six federal courts of appeal.” He argued that the Court came to the wrong conclusion, undoing the rule based on two cases which do not even discuss forensic evidence (Crawford and Davis).

In Melendez-Diaz v. Massachusetts, the Defendant was convicted of trafficking cocaine. He sought appeal based on the legal question regarding his right to cross-examine the analyst who submitted the report, classifying the substance confiscated from him as cocaine. Thirty-five states and the District of Columbia urged the Supreme Court to uphold the Massachusetts Court ruling, yet the majority saw otherwise. Despite arguments that it would be an unreasonable burden to require analysts to testify every time the Prosecution wishes to introduce such evidence in a criminal trial, the Supreme Court majority felt analyst’s affidavits fall into the “core class of testimonial statements” covered by the Confrontation Clause, and that “the Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits.”

Suppression of Evidence
In a criminal trial, the burden is on the prosecution to prove guilt beyond all reasonable doubt. The prosecution builds their case with evidence; some evidence stronger than other. There are rules regarding evidence, both State and Federal, which govern what evidence is admissible. As evidenced in the recent Supreme Court decision, these rules are ever changing. An experienced criminal defense attorney is an expert in the field of evidence and is knowledgeable about changes in the law. Upon reviewing a defendant’s case, a criminal defense attorney will determine if some of the evidence can and should be suppressed or denied admissibility.

If you have been charged with a criminal offense, contact the Law Offices of Marc Neff via phone at (215) 563-9800 or e-mail for a confidential consultation.

Posted On: June 1, 2009

Supreme Court of Pennsylvania Rules Accessing and Viewing Child Pornography over the Internet Constitutes Control under Sexual Abuse of Children Statute

Pennsylvania’s statute on Sexual Abuse of Children contains a provision which states: “it is illegal for an individual to knowingly possess or control any book, magazine, pamphlet, slide, photograph, film, videotape, computer depiction or other material depicting a child under the age of eighteen years engaging in a prohibited sexual act or in the simulation of such act.” In 2003, Anthony Diodoro was charged and subsequently convicted with violations of the Sexual Abuse of Children statute and Criminal Use of a Communication Facility. Police had obtained a search warrant for Diodoro’s computer, upon which they found evidence of accessing child pornography in the hard drive’s cache memory; the images were not saved to the hard drive but rather the evidence showed the images were merely accessed via the internet and viewed by the user.

Diodoro was convicted and sentenced to nine to twenty-three months incarceration, followed by five years of supervised probation. A panel of Superior Court judges reversed Diodoro’s conviction, finding that the evidence against him was insufficient to support a finding of possession of child pornography in conformance with the statute. The Commonwealth appealed and was granted an en banc rehearing by the Superior Court. In this rehearing, the Court held that Diodoro’s mere accessing and viewing of child pornography constituted the control element of the criminal statute, basing their opinion on the ordinary meaning of control as to exercise restraint or directing influence over something; specifically, his use of the computer mouse to open the images, locating the websites, and having the ability to print, save, or email the images once opened and viewed. The panel decision was therefore set aside and conviction reinstituted against Diodoro.

Diodoro appealed the en banc decision to the Supreme Court of Pennsylvania and was granted review of the following question: “Whether accessing and viewing child pornography over the internet constitutes ‘control’ of such pornography under [the statute].” Diodoro argued that in order to have control over the images, the Commonwealth must prove he had knowledge of their presence on his computer; further, he argued it is the legislature’s responsibility to enact a statute which provides fair notice that viewing child pornography constitutes an offense under the Sexual Abuse of Children statute. The Supreme Court heard the arguments and affirmed the ruling of the Superior Court. The Court agreed with the definition of control being used as to exercise restraint or direct influence. Further, the Court noted that had Diodoro saved or printed the images, he would have violated the possession element of the statute and been convicted as such. The Court reasoned that interpreting “possession or control” as not interchangeable would create a major loophole in the statute in which offenders could merely delete or not save child pornography upon intentional viewing. The purpose of the statute is to protect a compelling state interest (protecting children from sexual exploitation), and therefore must be interpreted broadly enough to punish those who intentionally access (but do not save) child pornography.

Child Pornography

Federal Law defines child pornography as “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, photograph, film, video, or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where it a) depicts a minor engaging in sexually explicit conduct and is obscene, or b) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, and such depiction lacks serious literary, artistic, political, or scientific value.” Possessing, Making, and Distributing child pornography is illegal in all 50 states, including Pennsylvania, and it is an offense which carries serious legal penalties.

If you have been arrested and charged with owning, making or distributing child pornography, or the sexual abuse of a child, the Law Offices of Marc Neff can help. For a confidential consultation, please contact our offices at 215-563-9800 or via email at