Questionable Lab Results Plaguing Texas

After years of being considered irrefutable, forensic evidence is coming under fire, particularly in Texas. Investigations over the past few years have uncovered serious errors in DNA, blood and other forensic evidence testing in crime labs across the state.

The most notorious example is the Houston Police Department’s crime lab scandal. A 2007 report issued by former Department of Justice Inspector General Michael Bromwich revealed that analysts working in Houston’s DNA lab were undertrained and created false reports for tests that were never performed, a practice known as “drylabbing.” When the analysts did run tests, they had a tendency to tailor their reports to fit police theories and disregarded evidence that may have been favorable to criminal suspects. They also had a habit of using all of the available evidence for their own testing, leaving no samples for the defense to run independent tests to verify the lab’s results.

Bromwich’s report recommended that the state provide free DNA testing to more than 400 prisoners whose convictions may have been based on incorrect or false blood testing results. He also suggested the state appoint a Special Master to oversee the review of nearly 200 additional serology (blood) cases that were found to have “major issues.”

The Houston crime lab’s troubles were first exposed in 2002, when a media investigation discovered a man had been convicted of rape based on DNA results that had been misinterpreted and overstated by a lab analyst. A state audit of the Houston crime lab the same year noted that many of the analysts working in the serology section lacked basic knowledge of blood typing and recommended an audit of years’ worth of blood, semen and other bodily fluid test results.

Since the exposure of the Houston crime lab’s deficiencies, similar problems have surfaced at other Texas crime labs including:

  • Evidence that a Lubbock Department of Public Safety (DPS) crime lab provided false evidence that was used to convict a man of rape
  • Allegations that a Texas DPS breath test technician falsified records
  • Temporary closure of the McAllen DPS serology lab due to errors in blood testing

Melendez-Diaz V. Massachusetts

The problem with the reliability of crime lab reports is not confined to Texas, but affects crime labs across the country. On a national level, a recent U.S. Supreme Court decision indicates acknowledgement that forensic lab results are not flawless. For years, labs would simply submit reports that would be admitted into evidence by the prosecution. However, the ruling in Melendez-Diaz v. Massachusetts makes this practice no longer acceptable.

In a 5-4 decision, the U.S. Supreme Court held that the analysts and technicians responsible for preparing crime lab reports must be made available for cross-examination at trial. The majority’s opinion was based on a concern about the justice system’s underlying assumption that these reports are reliable and those who prepare them are neutral. The Justices believed that the defense should be given an opportunity to question these underlying assumptions.

In the dissenting opinion, some Justices were equally concerned about the effect the ruling would have on the criminal justice system and the delays and expense that would be caused by requiring overworked analysts to be available for cross-examination.

Criminal defense attorneys and others in support of the majority’s opinion have argued that it is no more costly to afford criminal defendants this right than other rights, like the right to a court-appointed attorney. Further, they argue that a cost-benefit analysis is not appropriate when discussing a defendant’s constitutionally protected rights.

Additionally, providing a criminal defendant the opportunity to cross-examine a lab technician does not have to be overly burdensome or cost-prohibitive. For example, Texas uses a “notice and demand” system to guarantee a criminal defendant’s right to confront witnesses. The prosecution gives notice to the defense of the evidence it intends to submit at trial. The defense then may demand a right to confront the witnesses at trial who prepared the evidence, including crime lab analysts. With this type of system, lab analysts only have to be available when the defense exercises its right to confront them at trial.

Briscoe V. Virginia

The victory for criminal defendants in Melendez-Diaz may be short-lived. The U.S. Supreme Court heard oral arguments on January 11, 2010 in Briscoe v. Virginia, a case that challenges the parameters of the ruling in Melendez-Diaz.

In Briscoe, the Court will consider whether an Indiana law that places the burden on the defendant to call a lab analyst as a witness at trial satisfies the requirements of the Confrontation Clause. In this case, state prosecutors entered a crime lab report into evidence at trial without calling the analyst who prepared the report as a witness.

Some have speculated that the Briscoe opinion will overturn or minimize the ruling in Melendez-Diaz. Retired Justice David Souter, who voted with the majority, was replaced by Justice Sonia Sotomayor, a former prosecutor. Some believe that Sotomayor may be more sympathetic to the concerns of prosecutors and give the dissenting Justices the extra vote they need to overturn Melendez-Diaz. However, no one knows with any certainty what Justice Sotomayor’s viewpoint is on Melendez-Diaz nor how she ultimately will vote.


Should the U.S. Supreme Court vote to overrule Melendez-Diaz, it will be a great defeat for the rights of criminal defendants. With the series of egregious and systematic mistakes uncovered at the Houston Police crime lab and others across the country, criminal defendants have a demonstrated need to question the contents of these reports and the methodology of those who prepared them. To return to a criminal justice system that accepts these reports as accurate, valid and unbiased on their face has the potential to result in a serious miscarriage of justice for more than one criminal defendant.

What Makes Frank A. Rubino Different? Watch this video

In The Media:

  • ABC | Nightline
  • The O'Reilly Factor
  • Court TV
  • ABC | 2020
  • CNN
  • Larry King Live
  • The Miami Herald
  • Good Morning America