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December 2, 2011

Notable op-ed stresses that "The Bill of Rights Doesn’t Come Cheap"

Jeff Fisher, who famously won the landmark Blakely and Crawford cases in the same SCOTUS terms a little less than a decade ago, has this new op-ed appearing in the New York Times under the headline "The Bill of Rights Doesn’t Come Cheap."  Here are excerpts:

On Tuesday, the Supreme Court will hear oral arguments in Williams v. Illinois, the latest in a string of cases addressing whether the Sixth Amendment’s confrontation clause — which gives the accused in a criminal case the right “to be confronted with the witnesses against him” — applies to forensic analysts who produce reports for law enforcement. In other words, should an analyst responsible for, say, a fingerprint report have to show up at trial to face questions about the report?

A logical application of the law produces an easy answer: Yes. The court has defined a “witness against” a defendant as a person who provides information to law enforcement to aid a criminal investigation. That is exactly what forensic analysts do.

Subjecting forensic analysts to cross-examination is also good policy. According to a recent National Academy of Sciences study, forensic science is not nearly as reliable as it is perceived to be. DNA specimens, for instance, are sometimes contaminated; fingerprint, ballistics and even run-of-the-mill drug and alcohol analyses depend on human interpretation and thus are subject to error. Worse, investigations over the past decade have revealed outright incompetence and fraud in many crime labs. So it makes sense to subject the authors of lab reports to cross-examination — a procedure the court has called “the greatest legal engine ever invented for the discovery of truth.”

Despite all this, the Supreme Court has been sharply divided on the issue. In similar cases in 2009 and earlier this year, in which I represented the defendants, Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Stephen G. Breyer and Samuel A. Alito Jr. accepted claims by state governments that, simply put, confrontation in this context costs too much. It is far more efficient, these justices contend, to let analysts simply mail their reports to court. Having to appear at trials pulls them away from their labs, and only occasionally proves more revealing than their written testimony. Hence, these justices maintain, “scarce state resources” are better committed elsewhere.

Given that several states have long required forensic analysts to come to court, one might think that this financial argument would not have gained much traction. Justice Antonin Scalia, in fact, called the argument a “bogeyman.” But the four dissenting justices not only accepted it but deemed it powerful enough to trump the commands of constitutional text and precedent....

[An] assertion [about the potential impact of the case on DNA forensics] in the Manhattan district attorney’s brief reflects — in a particularly dramatic way — some prosecutors’ belief that they can bully the court into refusing to enforce a constitutional guarantee simply by arguing that such enforcement would be an administrative and financial burden.

There’s nothing new here. In the 1963 case of Gideon v. Wainwright, Alabama and several other states filed a brief urging the court to refrain from interpreting the Sixth Amendment’s guarantee of the “assistance of counsel” to require states to provide lawyers to poor defendants accused of felonies. The brief said such a rule would impose on states “an unbearably onerous financial burden to pay the fees of attorneys.”

The court, of course, was not moved. States have adapted. And the Gideon case has become a cornerstone of American jurisprudence. It’s almost impossible now to imagine how a trial could be considered fair without that basic procedural guarantee.

The court should follow this lesson in Williams and refuse to be cowed by prosecutorial bogeymen. It unquestionably costs money to deliver the fundamental demands of justice. But the price is not nearly so high as the states usually claim. And the price of failing to enforce basic procedural rights is, in the long run, much higher.

December 2, 2011 at 09:09 AM | Permalink


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The problem is simple. Politicians want to pass criminal laws because that gets votes. But politicians don't want to raise taxes because that causes people to vote for the other guy. This leads to silly proposals like bringing back flogging or 123D.

The question of how much justice can we afford is a disturbing one; it's also honest. My core issue with the criminal justice system in this country is that the system is a patina for randomness. There are so many laws and so little money (in the big picture) that legal justice is like mana from heaven: it falls where it wills on it's own accord, not by an plan of man's.

So I see four possible outcomes...

(1) pass less criminal laws and accept the increase in social disorder.
(2) spend more money and accept the reduction in other social values.
(3) admit the whole thing is a joke and give each judge a roulette wheel.
(4) keep going with the loving art of muddling through until the whole system collapses under its own weight.

My own bet is one #4. Rome wasn't built in a day and it didn't die in a day, either. But it did die.

Posted by: Daniel | Dec 2, 2011 12:53:16 PM

And as a frequent commentator on this blog frequently points out, spending on the criminal justice system is just a drop in the bucket anyway, compared to what governments spend on other things.

Posted by: sua sponte | Dec 2, 2011 1:43:48 PM

"In other words, should an analyst responsible for, say, a fingerprint report have to show up at trial to face questions about the report?"

This formulation seems to hide the ball. As I understand it, in Williams, an outside laboratory did the DNA analyses of the two samples and sent the raw data to the state's expert, who sythesized the raw data she was provided. She testified at trial as to her own conclusions on the basis of the raw data she was provided. (Experts are allowed to reach and testify to conclusions based on underlying work that isn't admissible or admitted into evidence, if that would pass muster in the expert's line of work.)

This isn't about whether the prosecution has to put its expert on the witness stand; the prosecution did that. It also isn't about whether the defense has the right to depose and to question at trial the analysts who did the underlying work, so the defense can potentially demonstrate that the expert's output is unreliable because the raw data the expert considered as inputs weren't reliable; the state, as I understand it, doesn't question the defense's right to do this.

The question is simply whether the Confrontation Clause obligates the prosecution to bring not only its testifying expert (the one who synthesized the data) but everyone else who could be considered an "analyst" to court on every possible trial date, in every case, and present testimony by them as part of its case-in-chief.

As I understand it, the state's position is "we did put up our expert, who didn't simply recite other people's work, like in Bullcoming, but testified to her own conclusions; if the defense wishes to question people who did the underlying work on which the expert's conclusions were based, that's what the Compulsory Process Clause is for."

Posted by: guest | Dec 2, 2011 3:08:25 PM

"but testified to her own conclusions;"

In terms of this specific case that the heart of it. I don't think she did /in fact/ testify to her own conclusions. All she did was repeat what she had been told by others. It's like claiming that the parrot who mimics what he has been taught is arriving at her own conclusion. How does one cross examine a parrot.

I do agree with the general point that the ball has to stop bouncing somewhere otherwise it's turtles all the way down. But I think this is fundamentally a bad case to test that point because of the facts. But I'm not SCOTUS.

Posted by: Daniel | Dec 2, 2011 5:55:20 PM

It's my understanding that the state's expert (rather than the employees of the private lab) was the one who took the two sets of raw data supplied by the private lab and formed -- and testified to -- the conclusion that the samples matched in specified ways and what the odds were of samples from unrelating individuals matching in all of those ways, and that in that way, she wasn't simply parroting someone else's conclusions, as the expert who testified in Bullcoming arguably did. Although she obviously couldn't testify about the specifics of what the private lab employees did, the prosecution wasn't introducing any reports or similar formal statements by any of the private lab employees into evidence. I don't understand the state to be contesting that the defense could have questioned and called as a witness any of the private lab employees, just as prosecutors trying to establish chain-of-custody for evidence don't have to put up every police officer who touched the evidence, and the defense can call their own witnesses if they think there's a basis to call into doubt the chain-of-custody testimony the prosecution has presented.

If anyone who knows more about the Williams case than I do wants to chime in . . . .

Posted by: guest | Dec 2, 2011 6:49:22 PM


That is the 'value-added' approach that Professor Friedman so effectively demolished in his amicus brief. I'm not going to repeat his arguments here because they are made in the brief and on his website. But the state's expert formed her own opinion only in the most mystical and magical way. She looked at two documents and concluded that 1+1=2. That's not forming her own opinion, not in any autonomous manner. She is /entirely/ dependent on the lab reports.

Posted by: Daniel | Dec 2, 2011 8:52:34 PM

As the article quite correctly says, "It unquestionably costs money to deliver the fundamental demands of justice."

I'm going to remember that one when I see the next of the 8000 entries about how the DP and imprisonment cost too darn much.

Posted by: Bill Otis | Dec 4, 2011 2:20:58 PM

@Bill --

But it's still just a drop in the bucket compared to spending on "entitlements," right?

Posted by: sua sponte | Dec 5, 2011 6:40:45 PM

sua sponte --

Of course it's right. If you think it's wrong, you can post here the numbers showing (1) spending on entitlements and (2) spending on the criminal justice system. I will be happy to let people judge for themselves which is big and which is gargantuan.

Of course, if you want to cut back on the criminal justice system, are you as willing to cut back on public defender and rehab budgets as you are on prosecution and prison budgets? Are you willing to cut back on the former AT ALL? By how much?

Posted by: Bill Otis | Dec 5, 2011 7:03:22 PM

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