On June 25, 2009, the civil rights case of Rodriguez v. City of Houston concluded with a historic verdict in the Southern District of Texas, finding that pervasive deficiencies in the City's police crime laboratory had caused George Rodriguez to be wrongly convicted on the basis of fabricated scientific evidence. That same day, the Supreme Court held in Melendez-Diaz v. Massachusetts that the Sixth Amendment prohibits the prosecution in a criminal case from placing crime laboratory reports into evidence in lieu of live testimony by the crime lab analyst.
The decisions emerge from different remedial contexts—Rodriguez a civil damages action, Melendez-Diaz a criminal appeal—but both have the potential to generate systemic incentives for law enforcement in the use of forensic science. Increasingly, the Supreme Court has recognized this dual role of both criminal and civil remedies in vindicating criminal procedure rights and, in turn, regulating law enforcement practices. At the same time, however, the Court's harnessing of constitutional criminal procedure's regulatory effects has been stilted by what I call "remedial rationing," in which enforcement of a given criminal procedure right is committed either to the criminal or the civil realm. This Essay posits that remedial rationing is misguided both in underestimating the structural limitations of criminal and civil litigation to achieve regulatory goals, and in disregarding potential synergies that may be generated by recursive criminal procedure remedies. Part I of this Essay briefly describes remedial rationing. Parts II and III reflect on both the potential and the limitations of the Melendez-Diaz and Rodriguez decisions for prospectively shaping law enforcement conduct in the specific area of forensic science. The discussion demonstrates that systemic consequences of criminal or civil adjudication of criminal procedure rights are uncertain but potentially coordinate. Part IV concludes with a preliminary critique of remedial rationing in light of the lessons of Melendez-Diaz and Rodriguez.
