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Is It a Right to Confront Your Accuser in Court?

January 11, 2010 at 12:00 AM EDT
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The Supreme Court is revisiting a clause about confrontation in the courtroom. Marcia Coyle of the National Law Review explains what is behind the debate.

MARGARET WARNER: Seven months ago, the high court ruled 5-4 that crime lab results cannot be used in a trial unless the analyst who prepared those results testifies and is subject to cross-examination.

Today, the court took the issue up again in a drug case from Virginia that’s remarkably similar to last year’s. The difference between them may come down to who’s sitting on the bench.

For more, we’re joined now by Marcia Coyle of The National Law Journal.

And, Marcia, welcome back.

MARCIA COYLE: Thank you, Margaret.

MARGARET WARNER: So, the glaring question is, why would the court choose to take up an issue they had just decided last year?

MARCIA COYLE: Well, I think there may be two reasons here. I mean, we’re never quite sure why the court agrees to review a case, because the court doesn’t say.

But, first of all, this case from Virginia is not identical to the case the court decided last term, even though it’s very similar in the issue it presents. It may be this — that last term’s decision, which was 5-4 — and you only need four justices to agree to hear a case — it may be that the four justices who dissented last term wanted to take another shot at this issue, and this case presented a similar issue.

It may be, too, that some of the justices in dissent were hoping to narrow the decision that was made last term. Secondly, this was a 5-4 decision. And it created a lot of controversy in the states. One of the justices in the majority last term, Justice Souter, is no longer on the bench. Justice Sotomayor has replaced him. And she may have a different view. So, it may put the decision last term at risk of being overruled.

MARGARET WARNER: And was it her background as a prosecutor and the fact that, as a circuit court judge, she more often than not ruled with the government, didn’t she, in — in law enforcement or criminal cases?

MARCIA COYLE: The — the speculation is she might have a different view because she’s a former prosecutor. And — and, yes, she was a fairly tough law-and-order judge, although she did rule for the defendant fairly often as well. She was very even-handed as a judge.

MARGARET WARNER: Now, these two — there were actually two cases today, similar certainly to one another. Is there anything particular about the cases, or are these pretty standard drug cases, and the big issue is really how they were tried at the trial?

MARCIA COYLE: They are definitely standard drug possession cases, two separate cases, separate incidents, one involving police finding drugs in a car, and the other involving police finding drugs in an apartment.

At trial, the state introduced lab reports in these two trials certifying what the drug was, cocaine, and the amount of the drug in each case. Defendants objected to those lab reports, saying that putting the lab reports in without the analysts who made them testifying violated their confrontation rights.

They were convicted. They appealed. And that’s why they’re in the Supreme Court today. They lost their appeal before the Virginia Supreme Court.

MARGARET WARNER: And when you say confrontation rights, you mean that right in the Constitution we all know from television and civics class that…

MARGARET WARNER: … an accused has the right to confront the witness against him.

MARCIA COYLE: Absolutely.

Starting in about 2004, the Supreme Court began to reexamine the confrontation clause, and has issued a series of opinions now in which it’s holding to the history and the actual wording of that clause, that the prosecution has to produce witnesses who want to give testimonial evidence.

MARGARET WARNER: So, what did the lawyer for these two defendants, what did he argue today? And how did the justice respond?

MARCIA COYLE: Richard Friedman, represented the two criminal defendants today. And he said basically that last term’s decision, known as Melendez-Diaz, explicitly said that an accused’s ability to subpoena the lab analyst wasn’t a substitution, an adequate substitute, for the confrontation clause right.

And this is what Virginia’s law does. But the wrinkle here is that Virginia says that the accused can demand that the prosecution produce the witness, not that the prosecution must produce the witness.

MARGARET WARNER: So, Justice Sotomayor, what were her questions like?

MARCIA COYLE: She focused mainly on the state, which was represented by the state solicitor general, Stephen McCullough.

And she asked, well, you know, these criminal defendants did what reasonable criminal defendants do. They objected to the introduction of the lab reports. How were they supposed to know that, under Virginia law, they were supposed to demand the presence of the analysts?

And the state responded that, well, it’s really the defense attorney’s right — responsibility to preserve the confrontation clause right. But then she added, well, you know, how do we articulate a rule here that obviates defense — defendants’ concerns that the prosecution is always going to introduce testimony by affidavit, and force the defense counsel to call an adverse witness and do what she called a cold cross-examination, meaning that the prosecution doesn’t first examine the witness?

MARGARET WARNER: So, fair to say or do you think she tipped her hand in either way?

MARCIA COYLE: I don’t think she did.

I think her questions, as they have been in the past, were very pointed, very even-handed of all sides.

MARGARET WARNER: And last question. She’s been on the court three months. I know there haven’t been any big decisions yet. But, in her questioning style, what can you tell about what kind of justice she’s turning out to be?

MARCIA COYLE: Very careful, cautious, specific, fact-oriented justice. And she is one of the — among the most aggressive questioners on the bench, on a bench that’s a very hot bench for questions.

MARGARET WARNER: Meaning she asks a lot of them.

MARCIA COYLE: Yes. And she may well make the difference in this case, as we — we spoke.

MARGARET WARNER: Marcia, Marcia Coyle, thanks for being back with us.

MARCIA COYLE: My pleasure.