Harden Law Offices

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Thursday, December 15, 2011

NY Times: Admissible Evidence or a Backdoor Ploy? Justices Ask

The defense bar has been pleasantly surprised by the strength of Justice Scalia’s opinions protecting the 6th Amendment and the right to confrontation.  Justice Scalia remains the strongest voice in support of the 6th Amendment on the high court, defending the right to confrontation in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), which held that it was a violation of the right of confrontation for a prosecutor to submit a chemical drug test report without the testimony of the person who performed the test. This overturned years of the Supreme Court permitting expert reports without the analyst present (Roberts)Melendez Diaz also clearly held that the analyst’s reports were unconstitutional without the testimony of the person to enable cross examination.  Justice Scalia delivered the opinion of the Court in which Stevens, Souter, Thomas, and Ginsburg, JJ., joined. Justice Thomas filed a concurring opinion. Justice Kennedy filed a dissenting opinion, in which Chief Justice Roberts and Breyer and Alito, JJ., joined.
 
The other case referenced in the article is Bullcoming v. New Mexico which also dealt with a Confrontation Clause case decided on June 23, 2011.  In Bullcoming, the Supreme Court considered the issue whether a defendant's 6th Amendment rights extend to a non-testifying laboratory analyst whose supervisor testifies as to test results that the analyst transcribed from a machine. In a 5-4 decision authored by Justice Ginsburg, in which Justices Scalia, Sotamayor and Kagan and Thomas in part concurred for the majority, while Justices Kennedy, Roberts, Breyer and Alito dissented.
 
It is interesting to note that the divide in the court ignores political appointments of the justices and is very stark as it relates to the 6th Amendment.  The Williams  case seems to be setting up the same 5-4 decision which will hopefully will protect a defendant’s right to make the government prove its case with live testimony capable of being cross examined.  These cases along with Crawford and Strickland  have over ruled the exceptions to the hearsay rule that were common for years under Roberts.  Hopefully the Supreme Court will continue to protect cross examination so that it may remain "the greatest legal engine ever invented for the discovery of truth." This conclusion is supported by comparing the historical purposes of confrontation with the alleged dangers in admitting an out-of-court statement. Confrontation: (1) insures that the witness will give his statements under oath - thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the "greatest legal engine ever invented for the discovery of truth"; (3) permits the jury that is to decide the defendant's fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility. 5 Wigmore 1367.

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