Sotomayor's First Big Case May Deal With the Right To Confront Expert Witnesses

A few weeks ago, I posted on the Supreme Court's decision in the Melendez-Diaz case, in which the Court found that the Sixth Amendment's confrontation clause gives criminal defendants the right to cross examine forensic experts who issue lab reports that the state admits into evidence.

The Washington Post reports this week that the decision will have broad-reaching ramifications:

The predictions are dire. In New York, murderers could walk free. In Fairfax County, drunken driving cases could be dismissed. And nationwide, thousands of drug cases might have to be thrown out of court annually.

Legal experts and prosecutors are concerned about the results of last month's U.S. Supreme Court ruling that requires lab analysts to be in court to testify about their tests. Lab sheets that identify a substance as a narcotic or breath-test printouts describing a suspect's blood-alcohol level are no longer sufficient evidence, the court ruled. A person must be in court to talk about the test results…

Crime labs that test drug and DNA samples face huge backlogs even when scientists and analysts do not have to testify. If the workers are taken out of the labs to appear in court, those backlogs will grow.

In drug cases, more than 1.5 million samples are analyzed by state and local labs each year, resulting in more than 350,000 felony convictions, national statistics show. "Even if only 5 percent of drug cases culminate in trials, the burden on the states is oppressive," a group of state attorneys general wrote in a brief for the case.

The percentage of cases going to trial could well go up if defense lawyers think that bringing lab analysts to court will help their cases. Lawyers also could go to trial with the hope of a dismissal if the analyst cannot be there.

Note that the objections here are logistical, not legal. Justice Anthony Kennedy's sharply-worded dissent in the case took a similar line, arguing that the decision "threatens to disrupt forensic investigations across the country and to put prosecutions nationwide at risk of dismissal . . . when a particular laboratory technician . . . simply does not or cannot appear."

These objections seem awfully utilitarian. We're supposed to ignore a fundamental component of a fair trial that's explicitly protected in the Constitution—the right to confront one's accusers—because doing so would prove inconvenient to the state? (Note too that the main reason for the backlog at state crime labs is the drug war.)

Just given my own reporting on forensics over the last few years, I find it mind-boggling that there are people who feel a court should be able to deny a defendant the opportunity to cross-examine, for example, the medical examiner who performed the autopsy in a murder case, or the lab technician who claims to have made a fingerprint match.

Unfortunately, the decision my already be in peril. Before its most recent recess, the Court agreed to hear Briscoe, et al., v. Virginia (PDF) a case that raises many of the same issues as Melendez-Diaz. Justice Souter voted with the unconventional majority in the 5-4 decision. His likely replacement, Sonia Sotomayor, is a former prosecutor whose record suggests she'll be quite a bit more law-and-order than Souter. Lyle Denniston at SCOTUSBlog speculates that the minority in Melendez-Diaz may have agreed to hear the Virginia case knowing that they'd have an ally in Sotomayor, suggesting a limitation or even reversal of the decision.

Surprisingly, the case did come up yesterday while Sotomayor was questioned by Sen. Amy Klobuchar (D-Minn.), also a former prosecutor. Klobuchar was critical of Melendez-Diaz, and invited Sotomayor to respond. Not surprisingly, Sotomayor's response was vague:

It's always difficult to deal with people's disappointments about cases, particularly when they have personal experiences and have their own sense of the impact of a case.

I was a former prosecutor. And it's difficult proving cases as it is. Calling more witnesses adds some burdens to the process.

But, at the end, that case is a decided case. And so its holding now is its holding, and that's what guides the court in the future on similar issues to the extent there can be some.

As I said, I do recognize that there can be problems, as a former prosecutor, but that also can't compel a result. And all of those issues have to be looked at in the context of the court's evaluation of the case and the judge's view of what the law permits and doesn't permit.

The American Spectator's John Tabin suggests Sotomayor's answer hints that she would not use the Virginia case to overturn Melendez-Diaz. I agree, although I don't think an outright reversal was in the cards in the first place. A reversal of a decision issued in the preceding term would be unseemly. The more likely possibility is that the Virginia case will limit the scope of Melendez-Diaz. Given how far apart the majority and minority were in the case, and that without Souter the Court stands 4-4 on this issue, the severity of that limitation may be entirely up to Sotomayor.