TheAgitator.com
Supreme Court: Defendants Have Right to Cross-Examine Forensic Experts
Thursday, June 25th, 2009The Supreme Court ruled today that the Sixth Amendment’s Confrontation Clause gives criminal defendants the right to cross examine the scientists who issue forensics reports that are entered into evidence. The breakdown of the 5-4 ruling was interesting, with Justice Scalia’s majority opinion joined by Justices Thomas, Ginsberg, Souter and Stevens. Alito, Roberts, Kennedy, and Breyer dissented.
Most interesting is that both the majority and dissenting opinions noted recent reports exposing the disturbingly high rate of error in areas of forensic science once thought to be foolproof. Scalia’s majority opinion states pretty matter-of-factly that the Confrontation Clause preserves the right to question forensic experts, and that the Court’s decision would have been the same even “if all analysts possessed the scientific acumen of Mme. Curie and the veracity of Mother Theresa.”
But there’s a pretty good chance that in the coming years we’ll see more challenges to the reliability and admissibility of various types of forensic testimony. So it’s encouraging to see that the justices are both aware of and have specifically taken note of the problems with the system.
My prior writing on the forensics issue here.
Bizarre that the same people can go 5-4 on this case and 8-1 on the school strip search case. How can both not produce 8-1 results? (Obviously, I’ll just assume that Thomas will forever be opposed to anything that might benefit those being aggressed upon by the state.)
Does this mean you can contest a breath test in court now?
Read that first paragraph again, Sam. Thomas did file a separate concurrence to limit the scope of the rule, but he was on the right side in this one (which indeed was the side that “might benefit those being aggressed upon by the state”).
I can’t find the dissenting opinion in the links given and so I can’t read for myself, but I find it breathtaking if true that it ‘noted recent reports exposing the disturbingly high rate of error in areas of forensic science once thought to be foolproof’ and still contested the right of defendants to question that methodology.
That seems to me to be tantamount to saying ‘defendants sometimes face false evidence which they have no way to challenge, but we don’t care’.
Oops, my bad. That officially makes Thomas’s position even more confusing. How can the same people find completely differently in both cases?
What’s bizarre is that Scalia can write this majority ruling here and yet also write the majority opinion handed down in Hudson vs. Michigan.
Well, I’m just a layman, but this seems like a good thing to me.
Sam, I don’t see why you think people should have ruled the same in this case as in the strip search case. The constitutional issues are completely different.
(I’d add that, while Thomas was wrong on the strip search case, many of his criticisms of the majority opinion were correct; the majority opinion was a flaky, half-hearted rejection of the strip search which concluded that in this particular case it was wrong, but suggested that it would be okay in other cases, without making it at all clear when it would be okay. Thomas rightly rejected that ambiguity, and then sadly concluded that the wrong rule should always apply.)
It’s not entirely bizarre that Scalia can write this and Hudson v. Michigan. Hudson was about remedies for knock and anounce requirement violations. Scalia wrote that knock and announce requirements do not have suppression available as a remedy like a warrantless search would. This is a much more straight forward rights issue not so much a remedy issue. To me there is a vast distinction even though I do not agree with the Hudson ruling for practicality reasons.
Henry,
The specifics of each issue are different, for sure. But generally speaking, these cases were about state authority to do as it pleased. The court found overwhelmingly that the state cannot strip search a child, but then struggled to barely conclude that defendants should be allowed to question those giving evidence against them.
(As for Thomas, he views children as, at best, property. That’s all you need to know about his views on “liberty.”)
Perhaps one explanation for the weirdness of it is that children are edge cases, and that one who comes to a libertarian result in one case, may come to a non-libertarian result when children are involved as it is just harder to define when and how much adults should interfere in children’s lives. I of course think strip searching children in search of Advil is completely nutty, but perhaps a more conservative leaning person would be more sympathetic, while still willing to support the rights of accused adults in a different case.
Just for my own edification, has Roberts ever come down on the side of individual liberty over state power?
Roberts continues his unbroken streak of ruling against the rights of criminal defendants.
http://www.lewrockwell.com/blog/lewrw/archives/028312.html
Drunk off-duty cop pistol whips innocent person, found not guilty (what a surprise) of all charges.
non-police persons accused of crimes.
Pardon the correction, but I think it’s more accurate this way.
I don’t believe it. Someone pinch me.
In unrelated news, if anybody cares…
Micheal Jackson and Farrah Fawcett are dead.
Sam,
Sure, broadly speaking, the cases were about the extent government power. But if you just look at rulings and classify them as “pro government power” and “anti government power”, you’re going to miss a lot of what’s going on. The government has a lot of different powers, and the justices have different views about what the proper extent of each of them should be. For instance, Scalia, who is in favor of government power in many situations, believes in a strong reading of the Confrontation Clause, which is almost always a limit on government power.
(Also, Thomas’ views on liberty in general, and children’s liberty in particular, are rather more nuanced than you give him credit for; while he does comes down on the side of government power, this is often because he’s more concerned about avoiding ad hoc rules. While I agree that he’s much too willing to restrict liberties along these lines, the approach he’s fighting—vague, case-by-case readings of constitutional rights—may well have caused much more long-term harm to liberty.)
It is these kinds of decisions that illustrate that the terms “conservative” and “liberal” are simplistic and misleading. Some conservatives and some liberals are more deferential to government power and some are less deferential. When you get a case like this, you frequently see the less deferential types from both sides of the political spectrum versus the more deferential types from both sides of the political spectrum. Alito is probably the most deferential while Thomas is probably the least deferential, even though they’re both considered conservatives.
Both liberals and conservatives get drunk on government power. Liberals like to use it to enforce their worldview and take money from people to give it to others. Conservatives like to use it to enforce their worldview and take money from people to put others in prison who don’t conform to their “morality”.
That’s why libertarianism is neither liberal nor conservative. Limiting the power of government is anathema to both.
So before this ruling, could defendants NOT cross-examine forensic experts?
Henry,
He argued that children deserve no rights while at school. None. That’s not subtle. He also just argued that school officials should be allowed to strip search children under any circumstances. That’s not subtle either.
Sam,
Thomas does, indeed, believe that schools have a great deal of power over students. That is not entirely indicative of his beliefs about the rights of children in other situations, or liberty in general.
I think we can make a reasonable assumption based upon the children’s rights cases that have come across his desk. He’s outwardly hostile to even the idea of liberty for children.
//While I agree that he’s much too willing to restrict liberties along these lines, the approach he’s fighting—vague, case-by-case readings of constitutional rights—may well have caused much more long-term harm to liberty.)//
The proper and Constitutional approach would be to hand off many of the decisions to juries. In many cases, the reasonableness of a search is a factual matter which may likely affect the outcome. Like all factual matters, it should thus be put before a jury. While judges should withhold evidence against the defendant from juries in cases where the conduct surrounding such evidence was patently unreasonable, it should be up to juries to decide whether to accept evidence which was gathered under dubious circumstances.
Under current practice, if some judge decided that in some earlier case it was reasonable for cops to start battering a door fifteen seconds after announcing themselves, then in any other case a cop who starts bashing a door fifteen seconds after some sort of announcement is acting “reasonably”. Never mind the fact that such decision was made without a defendant’s being allowed to argue against it–the decision that the cop’s action was “reasonable” was made by someone with no idea whatsoever what the actual circumstances of the cop’s actions would be.
BTW, allowing juries to examine searches would also alleviate the problem of judges who rubber-stamp warrants. If the police really have probable cause for a search, genuinely supported by oath or affirmation, a prosecutor should have no trouble convincing a jury of that (it should be an easier burden than having to show the defendant’s guilt). On the other hand, if cops routinely get baseless warrants rubber-stamped by a judge, they’ll find that many jurors won’t give them much credence.