Imposing Fees for Forensic Expert Testimony -- Is It Constitutional?

Tucked into the 2013 North Carolina budget bill is a provision imposing new court costs for expert witnesses who testify about chemical or forensic analyses at trial. Specifically, the new law (sec. 18B.19 of the budget bill) provides that upon conviction the trial judge must require a convicted defendant to pay $600 in costs if a state or local government crime lab employee testified at trial as an expert witness about a specified chemical or forensic analysis. The costs support the state crime lab or go to the local government unit that operates the lab to be used for law enforcement. There’s really no question about why this provision is in the budget bill. In the wake of Melendez-Diaz, crime labs have been stretched to produce forensic analysts in court while keeping up with the testing work. This provision is a legislative response to that pressure. But is it constitutional? Citing United States v. Jackson, 390 U.S. 570 (1968), defense lawyers may argue that the statute impermissibly chills a defendant’s confrontation rights. See generally Richard Friedman, Potential Responses to the Melendez-Diaz Line of Cases at 10 (suggesting that cost recoupment for laboratory analysts raises constitutional issues). In Jackson, the Court held unconstitutional a provision of the Federal Kidnapping Act that authorized the death penalty if a jury recommended it, but contained no procedure for imposing death on a defendant who waived the right to a jury trial or pleaded guilty. The Supreme Court found that the death penalty provision impermissibly chilled [...]