Supreme Court

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

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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.

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  1. Yeah, this is a big deal. Sorry to see Sen. Amy Klobuchar’s comments. Of course, Judge Sotomayor refused to say anything, but this case will really show a lot. There are a quite a few of these cases where the same five members of the Court voted for fundamental rights in favor of utilitarian convenience. Is Sotomayor a pragmatist like Breyer? Who knows?

  2. I have prosecuted numerous cases of drug use using positive drug test. To do that, you had to fly in a doctor from the lab who would explain and authenticate the positive test results. It is second year law school trial practice. It is not a burden to expect prosecutors to do it. Without requiring that, we are left with convicting people via the results given from the magic box.

  3. When even proving that a crime was in fact comitted is so burdensome, doesn’t that indicate that maybe it wasn’t a crime at all?

    Its not like there’s injuries, witnesses to prove the crime.

  4. I’m a little suprised that Klobuchar objected to Melendez-Diaz, since that was already the law in Minnesota and it’s not a problem here. It is a nuisance for forensic scientists like my wife who have to travel all over the state to testify (on average, only about once a month). The reality is, on the stand, once they finish explaining what the results mean, any other questions are answered by reading the notes in the casefile (of which the defense has already been provided a copy).

  5. 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.

    *ahem*

    147 cases by closed Detroit crime lab need tests

    DETROIT (AP) – Authorities have identified 147 cases that will require retesting of evidence handled by a city police lab shuttered over test errors.
    Wayne County Prosecutor Kym Worthy told the Detroit Free Press in a story published Sunday that those cases had led to convictions and that the number represents the “tip of the iceberg.” She said defense lawyers notified her office of 30 other cases that they believe relied on mishandled evidence.

    Burden of proof and all that stuff.

  6. The current Popular Mechanics has a cover story entitled, “The Truth about Forensics.” The subtitle should give a clue about the conclusions of the article: “Debunking the Shaky Science of Ballistics, Fiber Analysis, Fingerprinting.”

    I want bad guys convicted as much as anyone else, but it’s distressing to see how little science there is in forensics. Some stuff–like DNA–is good, but a lot of it isn’t.

  7. mea culpa on the tag screwup.

  8. What’s that off shore there? Why, I believe it’s a Kochtopus waving a white flag!

    Meanwhile, some of us (OK, me) haven’t given up. We (OK, I) realize just how much damage a former member of the National Council of La Raza will do on the highest court. Instead of trying to block her – or even just trying to be part of an effort to get concessions from her – Reason has just completely given in.

    For those who aren’t quitters, here’s how you can block her or at least get concessions out of her.

    P.S. In case anyone replies to this, their responses will almost assuredly be ad homs, thereby conceding my points and showing the childish, anti-intellectual nature of libertarians.

  9. Pro Lib,
    I read something very similar in Skeptic.

  10. If it wasn’t for all those illegal immigrants clogging the justice system, this requirement wouldn’t be so burdensome.

  11. Lonewacko – Take your website and your insipid post and ram them up your ass.

  12. “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.

    And possibly throwing innocent people in jail is not oppressive?

  13. Pro Lib,

    It is worse than that. Not only is this stuff psuedo science, what prosecutors do is hire a good expert early to keep the defense from having access to him. In many cases you end up with a guy with five PHDs testifying to bullshit but only being contradicted by a lab assistant with a associates degree. Even though the PHD is full of shit, the jury is likely to believe him. A guy in a lab coat with a few degrees holds a lot of sway over people.

  14. 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.

    Did she, of all people, seriously fucking say this?

  15. I have prosecuted numerous cases of drug use using positive drug test.

    Asshole.

  16. “I have prosecuted numerous cases of drug use using positive drug test.

    Asshole.”

    Fuck off. Everyone knows you can’t use drugs in the military. Being a private citizen is one thing. But when you sign on the dotted line to go in the military you agree not to use drugs. These guys weren’t draftees. They knew the rules and chose to break them anyway. Fair is fair. For the record, I have no desire to be a county DA and prosecute people who are otherwise minding their own business for drug use.

  17. Jeebus, Sotomayor’s response to a question about confronting witnesses was to trot out her wise Latina shtick about dealing with people’s disappointment?

    What a farce.

  18. I have prosecuted numerous cases of drug use using positive drug test.

    Asshole.

    There are plenty of reasons to call/consider John an asshole.

    Doing his job should not be one of them.

  19. If it wasn’t for all those illegal immigrants clogging the justice system, this requirement wouldn’t be so burdensome.

    Asshole.

  20. Tom,

    I meant that post to be below Lonewacko’s. I was making fun of Lonewacko. I wasn’t serious.

  21. Lots of people do their jobs, ChicagoTom, that doesn’t mean they should be let off the hook. However, I did not know John was prosecuting due to contract violations, so HE is off the hook. Others may not be, in my opinion.

  22. I meant that post to be below Lonewacko’s. I was making fun of Lonewacko. I wasn’t serious.

    John, I wondered if that were the case, based on the placement of the comment, but I wasn’t sure.

    My asshole comment was meant to be somewhat comical as well. (although I dunno if I hit the mark) I debated putting a smiley at the end. But again I wasn’t sure.

    Internet humor is hard.

  23. why does reason continue to let LW abuse the privilege of posting here? Every day, that motherfucker comes on your property and abuses you, lies about your positions, and blogwhores…and still…no ban. Nothing.

  24. And for the record Tom, there are lots of reasons to both call me and consider me an asshole. I freely admit that. 🙂

  25. why does reason continue to let LW abuse the privilege of posting here? Every day, that motherfucker comes on your property and abuses you, lies about your positions, and blogwhores…and still…no ban. Nothing.

    To quote Rameses in The Ten Commandments: Let him rave on, that men will know him mad.

  26. why does reason continue to let LW abuse the privilege of posting here? Every day, that motherfucker comes on your property and abuses you, lies about your positions, and blogwhores…and still…no ban. Nothing.

    Lonewacko is magnificent raw material. LunaWacko yesterday (?), for example, was brilliant. And the $20ForHead, or whatever, guy, is pretty good with his fake links.

    Actually, you know what, you’re right. None of that is worth his obnoxiousness spreading any further than it does.

  27. why does reason continue to let LW abuse the privilege of posting here?

    Do we really want H & R to get into the habit of banning posters because they are annoying jerks? It could get pretty lonely around here . . . .

  28. The Angry Optimist | July 16, 2009, 4:21pm | #
    why does reason continue to let LW abuse the privilege of posting here?

    So the rest of us can have the privilege of telling Lonewacko to shut the f*ck up.

  29. R C Dean – I definitely considered the “slippery slope” angle, but we’re not talking about annoying disagreements, we’re talking about out-and-out, constant lies and (I think) worst of all, rank blogwhoring. This place is not the place to be constantly linking to your own blog…what is reason, lonewacko’s bitch or something? I wouldn’t let anyone come onto my porch everyday and tack a “visit KKK.com!” flyer…so what the fuck?

  30. Oh, NO! The drug war might become inconvenient?

    Fuck Judge Kennedy. In this country, the rights of the accused to a fair trial are more important than the logistics of an unconstitutional crusade against what people choose to do with their own bodies.

    -jcr

  31. I have prosecuted numerous cases of drug use using positive drug test.

    You are an enemy of liberty. Go to hell.

    -jcr

  32. The reader can see why I added the “P.S.” in my comment above: libertarians truly are vile people who, instead of providing any sort of counter-argument, simply smear and engage in childish ad homs.

    And, here are some more examples of classical liberal fascism.

  33. “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>”

    Wa Po is not doing their jobs, the real story should be about justice being served because the prosecution has the higher burden of proof and should be held to that standard.

  34. JCR – it’s in the military, you moron. People volunteer to be prosecuted for drug crimes there…what happened to freedom to contract?

  35. Fuck Judge Kennedy. In this country, the rights of the accused to a fair trial are more important than the logistics of an unconstitutional crusade against what people choose to do with their own bodies.

    I agree, sometimes, though, he is the 5th 5-4 in cases that matter.

  36. People volunteer to be prosecuted for drug crimes there…what happened to freedom to contract?

    You know, that argument might carry some weight with me, if I didn’t have a friend whose military career came to a screeching halt because some idiot in a lab botched his drug test, and the apparatchiki didn’t want to admit that the lab fucked up. (Hair test by a civilian lab cleared him, but the Navy didn’t care.)

    -jcr

  37. libertarians truly are vile people

    What could be more vile than seeking the power to order other people around, lonewhacko?

    STFU.

    -jcr

  38. nice post..
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