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May 16, 2008

Ninth Circuit makes clear what it does not hold concerning cross-examination rights

The Ninth Circuit has an interesting decision today in US v. Perez, No. No. 07-10289 (9th Cir. May 16, 2008) (available here), concerning a defendant's "right to cross-examine the laboratory technician who tested a urine sample."  Realizing that the case could be seen as a blockbuster, the panel is quick to provide this explanation of what it is not holding:

We caution that this is an unusual case with unusual facts and should not be taken out of context. We do not hold that a releasee always has a right to cross-examine the technician who tested a urine sample. This is not a case where other evidence was offered in support of revocation, such as illegal drugs discovered in the possession of the releasee. Nor is this a case where multiple urine samples each tested positive. Here, the urinalysis report was the critical piece of evidence presented in support of the charge that Perez tested positive for cocaine. Although urinalysis results may often be sufficiently reliable evidence that the opportunity for crossexamination is unnecessary for due process purposes, see United States v. Martin, 984 F.2d 308, 313-14 (9th Cir. 1993), here the report itself showed the sample had been adulterated. Given that the sample was uncontestably adulterated, the test results were in fact ineluctably unreliable.

May 16, 2008 at 04:43 PM | Permalink


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