Does the decision in Melendez-Diaz have any effect on habeas petitions that are currently pending?
It’s an important question since there is no doubt that Melendez-Diaz is a very favorable decision for criminal defendants. It rejects a lot of arguments that lower courts had been using to find out-of-court statements non-testimonial and admissible against the defendant.
I think the best way to look at the impact of the decision, including its effect on current habeas petitioners, is to break up the possible situations into three broad categories: (1) criminal defendants who have not yet been convicted; (2) defendants who have been convicted but their case is now on appeal, i.o.w. the conviction has not yet become final as the direct appeal has not yet ended; and (3) criminal defendants whose judgments of conviction became final before Melendez-Diaz. This final category includes defendants who have filed habeas petitions.
I’ll go category by category below the fold.
It’s an important question since there is no doubt that Melendez-Diaz is a very favorable decision for criminal defendants. It rejects a lot of arguments that lower courts had been using to find out-of-court statements non-testimonial and admissible against the defendant.
I think the best way to look at the impact of the decision, including its effect on current habeas petitioners, is to break up the possible situations into three broad categories: (1) criminal defendants who have not yet been convicted; (2) defendants who have been convicted but their case is now on appeal, i.o.w. the conviction has not yet become final as the direct appeal has not yet ended; and (3) criminal defendants whose judgments of conviction became final before Melendez-Diaz. This final category includes defendants who have filed habeas petitions.
I’ll go category by category below the fold.
Category 1 - These defendants get the most direct benefit of the ruling and can now argue that certain scientific reports should be excluded unless the prosecution calls the preparer of the report to testify.
Category 2 - These benefit to these defendants is not as direct, but still palpable. So long as there are no procedural hurdles to raising the claim on appeal, these defendants can argue that the admission of the report in the trial court was erroneous under Melendez-Diaz. Otherwise referred to as the “in the pipeline” rule.
Category 3 - The answer for these defendants is found in the Supreme Court’s decision of Teague v. Lane, which set out the rules for retroactive application of Supreme Court decisions on collateral review in a habeas proceeding.
Teague was a decision from the 80's during the Rehnquist Court’s assault on habeas. The Court altered habeas corpus rules in dramatic ways that made it much more onerous for criminal defendants to obtain habeas relief. Many of these rules were incorporated into the AEDPA (see FAQ 2). The AEDPA did not specifically incorporate the Teague retroactivity rules. Early on, there were debates as to whether the standard of review (see FAQ 3) implicitly nullified the retroactivity rules. However, the Supreme Court has applied the Teague rules after the passage of the AEDPA, so they remain on the books.
What exactly are the retroactivity rules? Teague said it like this: New constitutional rules of criminal procedure are not applicable to those cases which have become final before new rules are announced, unless they fall within one of two exceptions to this general rule.
The two extremely limited exceptions are (1) if the rule places “”certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe’”; and (2) if the rule represents a watershed rule of criminal procedure. To be honest, I am not quite sure if I have a grasp of what the first exception means. The second exception is must easier to understand, but has been interpreted in an extremely narrow way. You’d be surprised to hear how few watershed rules get created. In this context, courts have taken a post-modern view of the criminal justice system - we have pretty much developed all that there is to be developed in the system, so there isn’t anything left to be developed that can be considered a bedrock principle of criminal procedure. Makes the whole system feel kind of stagnant.
But that may really be the point. Teague and other Rehnquist Court habeas limitations really were jusified, ostensibly, in the name of protecting the “finality” of the state court judgment. I am not sure why this was so important to the Court other than it meant that habeas petitioners had to lose.
Looking pretty dire for current habeas petitioners, doesn’t it? But there is an important wrinkle here.
The retroactivity rules only apply to cases that create a “new rule.” This means that cases which do not announce a “new rule” can be relied upon in collateral proceedings. Thus, it is important to determine what a new rule is. A case announces a new rule if the decision breaks ground in some way and the result was not completely dictated by prior precedent. A good example is Crawford itself that overruled prior precedent and re-interpreted the meaning of the Sixth Amendment. It is the essence of a new rule.
So, what about Melendez-Diaz? Of course, my answer is that, although the decision does seem to have broad applicability, it did not announce a new rule. Let me quote Justice Scalia from the concluding paragraph of the decision:
Category 2 - These benefit to these defendants is not as direct, but still palpable. So long as there are no procedural hurdles to raising the claim on appeal, these defendants can argue that the admission of the report in the trial court was erroneous under Melendez-Diaz. Otherwise referred to as the “in the pipeline” rule.
Category 3 - The answer for these defendants is found in the Supreme Court’s decision of Teague v. Lane, which set out the rules for retroactive application of Supreme Court decisions on collateral review in a habeas proceeding.
Teague was a decision from the 80's during the Rehnquist Court’s assault on habeas. The Court altered habeas corpus rules in dramatic ways that made it much more onerous for criminal defendants to obtain habeas relief. Many of these rules were incorporated into the AEDPA (see FAQ 2). The AEDPA did not specifically incorporate the Teague retroactivity rules. Early on, there were debates as to whether the standard of review (see FAQ 3) implicitly nullified the retroactivity rules. However, the Supreme Court has applied the Teague rules after the passage of the AEDPA, so they remain on the books.
What exactly are the retroactivity rules? Teague said it like this: New constitutional rules of criminal procedure are not applicable to those cases which have become final before new rules are announced, unless they fall within one of two exceptions to this general rule.
The two extremely limited exceptions are (1) if the rule places “”certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe’”; and (2) if the rule represents a watershed rule of criminal procedure. To be honest, I am not quite sure if I have a grasp of what the first exception means. The second exception is must easier to understand, but has been interpreted in an extremely narrow way. You’d be surprised to hear how few watershed rules get created. In this context, courts have taken a post-modern view of the criminal justice system - we have pretty much developed all that there is to be developed in the system, so there isn’t anything left to be developed that can be considered a bedrock principle of criminal procedure. Makes the whole system feel kind of stagnant.
But that may really be the point. Teague and other Rehnquist Court habeas limitations really were jusified, ostensibly, in the name of protecting the “finality” of the state court judgment. I am not sure why this was so important to the Court other than it meant that habeas petitioners had to lose.
Looking pretty dire for current habeas petitioners, doesn’t it? But there is an important wrinkle here.
The retroactivity rules only apply to cases that create a “new rule.” This means that cases which do not announce a “new rule” can be relied upon in collateral proceedings. Thus, it is important to determine what a new rule is. A case announces a new rule if the decision breaks ground in some way and the result was not completely dictated by prior precedent. A good example is Crawford itself that overruled prior precedent and re-interpreted the meaning of the Sixth Amendment. It is the essence of a new rule.
So, what about Melendez-Diaz? Of course, my answer is that, although the decision does seem to have broad applicability, it did not announce a new rule. Let me quote Justice Scalia from the concluding paragraph of the decision:
This case involves little more than the application of our holding in Crawford . . . . The Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits, and the admission of such evidence against Melendez-Diaz was error.
It would seem to me that a direct and straightforward application of a prior precedent does not represent a new rule. It seems that Scalia is fully on board with this conclusion.
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