"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Thursday, June 25, 2009

SCOTUS to Lab Analysts: Pack your Bags

In an unusual ruling today, the SCOTUS decided, by a 5-4 vote, that admission into evidence of a drug lab certificate in a state court prosecution without the testimony of the "analyst" who prepared it constituted a violation of the Sixth Amendment right to confront witnesses.

Justice Scalia wrote the majority opinion, in which Justices Thomas, Ginsberg, Stevens and Souter joined. The mix on the dissent side was equally unusual: Roberts, Alito, Kennedy, and Breyer. The Court today continued the trend I noted here in crimlaw cases, of defying easy categorization as "liberal" or "conservative." Instead there seems to be a drift into a more "formalist" or "literalist"camp, which tends to downplay or disregard the effects of their rulings on the criminal justice system and any social and economic implications and which is fairly quick to overrule or explain away contrary precedent. Scalia and Thomas are prominent in this camp. The other camp is what one might call "pragmatist" and consists of Alito, Roberts, and Kennedy. This camp affords more weight to precedent and the practical policy, economic, and "reliance" implications of newly announced Constitutional rules.

So in this case, Scalia follows a formal, literal reading of the Sixth Amendment, reasoning that lab certificates are "testimonial" in that they are prepared with a view to prosecution, and that therefore the person conducting the test must be available for cross-examination. Pragmatic concerns such as the burden on the system in producing such witnesses, the likelihood of increased dismissals when these witnesses cannot or do not come to court, and the increased expense involved in requiring analyst testimony, are brushed aside as insignificant next to the "plain" command of the confrontation clause.

The dissent, in addition to citing the pragmatic problems (and also feeding Scalia a healthy dose of "original intent" evidence refuting his formalist interpretation of the Sixth Amendment) relies on the 90-year precedent for using lab certificates without an analyst testifying to argue that the majority is not only imposing great costs on the system, but also is throwing stare decisis overboard.

About one thing there can be no dispute: this case has dramatically changed the way business will be done in drug cases, DUI cases, and any other case which has up until now relied on use of certificates of analysis of any kind. Defense attorneys will attempt to use this opinion to pry charge and sentencing concessions from prosecutors; prosecutors may respond by opting for more jury trials in appropriate cases, to raise the stakes of contesting guilt.

Let the games begin.

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