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.