The Right to Cross Examine
In an interesting bit posted by the Washington Post, a Virgina judge threw out a breathalyzer certificate because prosecutors failed to make the person who performed the breath test available for cross-examination. The Virginia court relied primarily on the Supreme Court's most recent confrontation clause decision in Melendez-Diaz v. Massachusetts, which I gleefully posted on last month.
Of particular humor in the article was the comment, "But the prospect of bringing lab technicians and breathalyzer operators to court in every case has sent shock waves through prosecutors' offices across the country." My, my, my - isn't that a first-class example of the malaise of indolence gripping the government? The annoyance at actually being forced to call witnesses to prove their case before convicting citizens. Never mind that the framers (who had quite a few other issues to consider at the time) considered the Confrontation right so important it made the top ten list in the Constitution. This requirement has been in print for over 200 years and the new enforcement of it sends "shock waves." Amazing.
Despite the whines and cries to the contrary (and I assure you, this is whine in its purest sense), this is not going to "paralyze" the criminal justice system or result in mass loads of criminals waltzing out of prison. This kind of predictable scare tactic and misinformation usually emerges when the state doesn't get its way (by the way, come up with some new ones, really). Unfortunately, the claims actually have zero empirical evidence to support them. The vast majority of cases are still going to plead out, as many defendants are not going to risk going to trial on the gamble that a witness won't be available. And if it does end up clogging the system, perhaps the place to start is by re-examining our draconian and completely ineffectual drug laws rather than eviserating citizens' constitutional rights. In any event, it appears that the days of trial by affidavit are over.
Of particular humor in the article was the comment, "But the prospect of bringing lab technicians and breathalyzer operators to court in every case has sent shock waves through prosecutors' offices across the country." My, my, my - isn't that a first-class example of the malaise of indolence gripping the government? The annoyance at actually being forced to call witnesses to prove their case before convicting citizens. Never mind that the framers (who had quite a few other issues to consider at the time) considered the Confrontation right so important it made the top ten list in the Constitution. This requirement has been in print for over 200 years and the new enforcement of it sends "shock waves." Amazing.
Despite the whines and cries to the contrary (and I assure you, this is whine in its purest sense), this is not going to "paralyze" the criminal justice system or result in mass loads of criminals waltzing out of prison. This kind of predictable scare tactic and misinformation usually emerges when the state doesn't get its way (by the way, come up with some new ones, really). Unfortunately, the claims actually have zero empirical evidence to support them. The vast majority of cases are still going to plead out, as many defendants are not going to risk going to trial on the gamble that a witness won't be available. And if it does end up clogging the system, perhaps the place to start is by re-examining our draconian and completely ineffectual drug laws rather than eviserating citizens' constitutional rights. In any event, it appears that the days of trial by affidavit are over.
Labels: Confrontation, Law Etc.
posted by Marjorie Bachman at
5:31 PM
3 Comments:
I saw the Supreme Court ruling on this when it came down and I was shocked that it hadn't been permissible to call as a witness lab techs or manufactures of equipment used to collect data.
The tests and equipment aren't infallible and that's something the jury should be made aware of.
Do you know what reliability standards are required before evidence is admissible from something like a breathalyzer?
Actually, the defense could call the lab tech if he/she wanted even before this decision. The issue here is whether the State is required to call the lab tech in order to get the test results into evidence (before, they would just submit the affidavit with the test results). The Supreme Court clarified that it's the State's burden to call this witness - and if you don't call them, the test results don't come in. The defendant does not have the burden to call the witness. On the reliability standards, there is case law dealing with that - I'll post the case in a bit.
Thanks for the clarification. I look forward to the post on the reliability standards.
Post a Comment
Links to this post:
Create a Link
<< Home