TheAgitator.com
Cross Examining Forensic Experts
Monday, August 10th, 2009My crime column this week is on the Melendez-Diaz case, and its uncertain future.
The Supreme Court ruled last term that prosecutors must make forensic experts available for cross examination if they’re going to admit the experts’ reports into evidence.
The ruling was important, but it may already be in trouble.
I think you got the wrong link in your post:
http://reason.com/news/show/135325.html
You people need to get a grip. We can’t have five percent of drug cases going to trial. That would be “oppressive” and if you people start demanding trials, pretty soon we’ll have trouble keeping our prisons full and corrections officers will be laid off as if they were washed up auto workers. Have a little compassion for your fellow man.
Seeing as the Melendez-Diaz ruling doesn’t serve the state’s compelling interest in obtaining convictions, we none of us should oughta be surprised.
The last thing the SCOTUS needs is more prosecutors and / or religious fanatics.
One thing that’s badly needed, IMHO, is a recognition that the Constitution is the Supreme Law of the Land, any government action contrary to the Constitution is illegitimate, and nobody has any legitimate authority to act contrary to the Constitution. If something is unconstitutional, the Supreme Court has no authority to declare it otherwise; any such declaration is illegitimate and void. Were that not so, Supreme Court edicts would be superior to the Supreme Law of the Land; by definition, that would be impossible.
I’d love to see a judge’s rationale forbidding the following voir-dire question: “Will you regard the Constitution of the United States as the supreme authority, trumping any statutes, judicial decrees, or other rules that would contradict it?” I’m sure few judges would allow a defense attorney to expel for cause any and all prospective jurors who fail to answer in the affirmative, but I can see no legitimate basis for seating any juror who will not abide by the real law.
The last time I was on a jury, I felt trapped by the judge. We were told that we were the judges of fact and she was the judge of law.
I just resolved to vote what I felt was right and keep my mouth shut otherwise.
Stephen, the right to judge the law is a right that judges usurped from juries ~100 years ago, I believe, in U.S. v. Sparf.
Hi ShelbyC,
Thanks for the info. I looked a little deeper and it seems that that case just gave the judges the ability to lie to the jurors (at least by omission) about their right to judge the law.
It sort of seems that the right of juries to judge the law still exists but juries are kept ignorant of it on purpose.
I WILL judge the law when I am on a jury. The way I can express my disapproval of a law is to vote “not guilty” and keep my mouth shut about it.
Stephen,
What exactly do you mean by judging the law? Judges are supposed to be the “expert” on what the law is and what the law says in a courtroom. For example, the judge will tell the jurors what the defendant is charged with and what the elements are of that crime (burglary means 1. to break into a dwelling 2. with the intent to commit a crime, etc.).
We can’t have jurors just defining what the law says on the fly and making up their own elements and definitions of crimes. I’m guessing that is not what you are suggesting. But then what are you saying? Jurors are given lots of leeway to interpret the law but they must be told by a judge what the law is. Without this system, the law would be applied with great inconsistency across various cases.
I saw an absurd Law and Order episode where a man killed a doctor who performed abortions regularly. His defense was third-party self-defense (ie. he killed to save the life of the unborn fetuses). The lawyers argued whether such a defense was applicable and the judge said let the jury decide. Though this example is a bit extreme, it shows that by letting the jury decide this question we would constantly get entirely inconsistent verdicts in otherwise identical cases based on the jurors’ feelings about the yet-to-be born.
I agree that jurors should have wide-discretion in interpretting what the law means in the context of the case but not what the law is to begin with. I’m anxious to hear you clarify exactly what you mean.
Nick T,
A 1969 Fourth Circuit decision, U.S. v. Moylan, affirmed the right of jury nullification, but also upheld the power of the court to refuse to permit an instruction to the jury to this effect.
We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused, is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision. U.S. vs Moylan, 417 F 2d 1002, 1006 (1969).
John Adams said of jurors:
It is not only his right but also his duty… to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.
—The Works of John Adams -
Not speaking for Stephen of course but, it is pretty clear from historical cases and the documents of many of our founders that they fully intended the jury to be able to acquit based on the law itself being immoral, overly punitive or misapplied.
#10
Right I totally agree with jury nullification, and I would like to see it used more often. The right of the jury to nullify, however, is not inconsistent with the role of judge being the arbiter of what the appplicable law is.
Indeed, both sources you cite seem to presuppose that the jury has been provided with the law from some outside entity – clearly, the judge – and then chooses to not apply it, as is their right.
In sum, had the comments I responded to said: “I should have told about my right to nullify regardless of the law.” I would have just given out +1 karma points and moved on. If that is what those commenters intended, then I appreciate the (needed) clarification.
ktc2, you said it better than I could.
I think that it is more of a case of me thinking that the law is being misapplied by an idiot prosecutor that would make me vote not guilty.
Some sex crime cases for example are just ridiculous. They should never have made it to court to waste my time as a juror.
Obvious inconsistency in the law might make me vote not guilty.
How can a 16 yr old be charged as an adult for murder but still be a minor victim in a sex crime? Stuff like that.
The thing I was really complaining about was the way I felt hemmed in by all the instructions. It felt like the jury was just there as a formality to rubber stamp what had already been decided. I mean, if I can only decide one way, why do you need jurors? Reducing things down to a ten question yes/no pop quiz demeans me and pisses me off.
#11 Nick T
I agree, the judge decides what the law is, I get to decide if the law is bullshit.
“The judge decides what the law is, I get to decide if the law is bullshit.”
Actually, I quite like the way you put it!
It seems that any law that produces so many defendants they cannot be tried in court is a failure.The system relies on most people giving up their right to a jury trial for it not to collapse.I’ve read that in D.U.I cases t6here’s a 50% chance of a not guilty verdict,which is much higher than most ‘crimes’.What would happen if most of the accused could contest the evidence in court?It seems our system was not set up to handle mass arrests of people who do no harm to others,like happens due to the drug war.
@12 and 13: agreed.
Thats a good point Michael Pack. What if everyone demanded a jury trial? No plea coercions. If they think the system is backlogged now….hell, it would cripple them on DUIs alone.
#16,that’s what makes it possible to make criminal non harmful,non dangerous and,in the cases with sextexing,stupid teenager behavior.If you don’t have to go to court and defend every arrest you can rule unopposed.
When I was young, in the 80′s, I spent time in the Md correctional institute in Hagerstown for drug charges. The older inmates preached that if everybody went to trial and didn’t cop pleas we would all go home. It obviously didn’t catch on. It’s a scary feeling when a prosecuter is threatening to give you 20 years if you go to trial but just 3 if you plead guilty. If the defendants were not kids just turned 18 it might have worked but at that age you’ll get out in your 20′s and might still have a life. Nobody wanted to be the first to buck the system and be made an example of.
Plea bargaining should be removed from the prosecutors entirely. They should not be able to initiate any such arrangements whatsoever. This shit with piling charges upon charges to make a scary life ending sentence and then offering a plea of basically what a person should get if they had a fair trial and were convicted has got to stop. It’s an obscene scare tactic to convict the innocent.
#5 | supercat — “One thing that’s badly needed, IMHO, is a recognition that the Constitution is the Supreme Law of the Land, any government action contrary to the Constitution is illegitimate, and nobody has any legitimate authority to act contrary to the Constitution.”
But who will interpret the Constitution, supercat? Documents don’t interpret themselves. Therein lies the problem with codified law.
#18 | auggie — “The older inmates preached that if everybody went to trial and didn’t cop pleas we would all go home. It obviously didn’t catch on. It’s a scary feeling when a prosecuter is threatening to give you 20 years if you go to trial but just 3 if you plead guilty… Nobody wanted to be the first to buck the system and be made an example of.”
Auggie, that’s known as the Prisoners’ Dilemma. Separate the prisoners, tell each one that if they turn on the other they’ll get off lighter, then let them decide if they want to take the chance that neither one will, which they never do. Works every time.
[...] post on Melendez-Diaz over at Reason by Radley Balko. He takes the position that the ruling is an important check on an often psuedo-sceintific approach [...]
//But who will interpret the Constitution, supercat? Documents don’t interpret themselves.//
The people who decide individual cases. In many cases, jurors. To be sure, in ambiguous cases it is right and proper for people to look at higher court decisions in similar cases for guidance, but if a decision wouldn’t be justifiable without reference to precedent, such decision is unjustifiable.
Unreasonable searches are illegitimate, period. No matter how many judges may decree that it’s “reasonable” for a cop to bash down a door without making it obvious to anyone inside that he’s a cop, if a juror can’t be convinced such behavior is reasonable, said juror should not regard anything from such a search in a light unfavorable to the defendant.
I have a friend who blew .08.
He read the ticket:on the back it said you
have a right to an independent test. Two hours later he rushed to the hospital which the magistrate and officers recommended.
They only do blood tests at the request of
law enforcement. The vice president of the hospital showed
up at court and stated this.We called around. Same with other hosptials.
The right to an independent blood test is a sham around these parts.
. I was there, it was Wendesday. The judge
ruled somehow it was not a violation of due process.
Motion denied.
What a sham. I am hoping my friend uses Melendez-Diaz
to get the techs in there to admit the breath test
has margin of error. Like every instrument.
Oh yeah, the hospital charged him $600 for the test he never got.
What a world we live in.