This seemed like a no-brainer from the word go, but somehow it required the Supreme Court to rule on the idea that chemists in Massachusetts shouldn’t be required to testify, but can just mail in their conclusions. So what can possibly be at issue in Melendez-Diaz v. Massachusetts?
Cut from the oral argument via SCOTUSBlog :
Kennedy initially saw a potential problem if the Court were to answer yes to that question. He foresaw ”a very substantial burden” on the prosecution and on the courts, and told counsel advocating for confrontation that he was significantly underestimating the impact. But, as the hearing moved along, Kennedy saw as “a very important point” that California has not experienced such a burden and “gets along all right” with summoning lab analysts to the stand with some frequency.
So the best Justice Kennedy can come up with is that the California experience was so burdensome? Burdensome? Is that all there is to the confrontation clause? And if California found it to be a burden, would that command a different result?
Austin criminal defense lawyer, Jamie Spencer, whose keyboard is finally back from the cleaners, links to a anonymous PD blog, Preaching to the Choir, with the crystal clear post title, You have the right to confront your accuser, as long as it’s not too inconvenient.
There is no question whatsoever that the testimony of the chemist (or any other technician who offers a scientific identification of something that is intended to satisfy an element of a crime) may well be subject to critical cross-examination. There are times when this witness, like any witness, isn’t at the vortex of a dispute, and when a stipulation may suffice rather than a warm body. But that choice belongs to the defense counsel, who alone knows what he plans to dispute and how he plans to do so.
What is shocking, if not laughable, is the overt concern over inconvenience in the process of convicting and imprisoning people. Yes, it is inconvenient. It can be very inconvenient. Cops are taken off the street. Judges, prosecutors and regular citizens are tied up for days, sometimes weeks or months, in the process. It is supposed to be inconvenient.
Let’s come to grips with this whole inconvenience thing now: The most convenient way to address the criminal justice system would be to let cops arrest and, based upon our confidence in their intelligence and good will, punish them. Cops should be able to stop at will, search at will and arrest at will. That, by far, would save us a ton of dough and expedite everything. That, amigos, is convenience.
What? You’re no more confident in police than Sarah Palin is in her brother-in-law’s devotion? Well, now you’re making problems. Once we open the Pandora’s box of testing allegations by confrontation, why should any involved class be different than any other? We know chemists have, on occasion, lied and manipulated truth. We know science isn’t as perfect as it wants to be. We know that people get things wrong. But we wouldn’t know any of this but for a system that allows us to test the allegations through confrontation.
And it’s inconvenient.
Jamie, in his concluding thoughts on the Preaching to the Choir post, writes:
Sarah says she is “confident that the Court will conclude that a decision in favor of the defendant in this case won’t unduly burden the 50 states”. I hope so, but I’m not sure I share her optimism.
While any outcome that requires the 50 states to put warm bodies on the stand to be confronted is better then nothing, Jamie’s concluding twist on Sarah’s rationale fails to satisfy me at all. Who cares if being compelled to subject the government’s witnesses to confrontation is an inconvenience? If this becomes the test for confrontation, what happens next time when it is really, really inconvenient to put a witness in the chair?
I try these cases. I can’t cross a piece of paper. I can’t cross hearsay. Without confrontation, scribble anything you want on a piece of paper and it is beyond challenge. Inconvenience has nothing to do with it.
This would have been a particularly fine opportunity for Mr. Crawford himself, Nino Scalia, to stand up and scream “Baloney! Nowhere in the 6th Amendment does it say, ‘unless it’s convenient,’ and I’m not sticking my own words like I did in Heller into the middle of the 6th Amendment!”
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I guess I don’t understand what part of my rationale fails to satisfy you as we seem to be saying the exact same things. As I wrote, I was perturbed that the state’s convenience argument wasn’t laughed out of court. As I wrote, there is no convenience exception to the 6th Amendment. I, like you, don’t think this pragmatic concern by the state should factor into the court’s analysis at all. I was disheartened by the willingness of some court members even to entertain the argument.
I think the only fathomable outcome of this case is all confrontation, all the time. As I wrote in my post, I don’t care how logistically difficult or expensive confrontation might be in some cases. That should never trump a defendant’s 6th Amendment right.
You are exactly right, and the problem is not with your rationale at all, but rather with my horrible mangling of the language. My problem was with Jamie’s twist on your rationale, which I believe he sees as consistent with yours but falls back on the “not unduly burdensome” explanation.
I’m going back in to correct my mistake immediately!
Thanks for the correction. I didn’t think you meant to be critical of me, so I was a little confused by the language.
First off – not that it would need saying – don’t revise anything in your post on my account, but I’m getting a little confused here.
Lemme back up. First I didn’t say much of substance, I just ripped off / riffed off of Sarah’s post, although I hope I attributed it properly, and indeed the portion of my writing that said her post was excellent and that the reader should click to read it was meant sincerely.
Frankly I agreed with the whole darn thing, but then there’s this darn Fair Use thing I have against completely quoting someone else’s post. 🙂
Then I may have made a mistake in my final paragraph by not including the word “also” – her word – when I said : Sarah says she is “confident that the Court will conclude” blah blah wouldn’t be unduly burdensome.
Perhaps one could infer (in the non-sylogistical sense of that word) that I thought that was Sarah’s main point. If I had included the word “also” to make the phrase: Sarah says she is “also confident that the Court will conclude” blah blah wouldn’t be unduly burdensome… that would have made it more clear.
But, and this is a big but, I do worry that the Court may indeed use that rationale (that BS rationale, there I said it) to rule for the State. We’ll see. I hope I’m wrong. But I have been burned before, and don’t care to count my chickens.
I think as Sarah said that we may actually all be in agreement here. But I don’t read what I wrote as some sort of implied agreement with the “let’s do a balancing test and see whether or not this unduly burdensome on the State, and make the decision on that basis” rationale. And if my post can be read that way, I didn’t mean it to be.
Or maybe I missed your point about my point about Sarah’s point…
Duh. I’m slow but I think I got it.
Perhaps it looks like my “I hope so” means that I hope that the Court will use the “is it too burdensome rationale” but decide in favor of the defendant.
That’s not what I meant, but I could see how it reads that way. I meant – but ooops didn’t fully say- that I hope the court rules in favor of the defendant on the basis of “the Confrontation Clause means what it says”, but I wouldn’t be surprised by a balancing test, faulty reasoning and a wrong conclusion.
Bingo. And as noted, I didn’t think it was what you meant, but rather a by-product of that cynical Austin view of those liberal activist judges.