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November 19, 2018

Justice Gorsuch, joined by Justice Sotomayor, dissents from denial of cert in Confrontation Clause case from Alabama

Because the Confrontation Clause has been deemed inapplicable at sentencing (which has always seemed problematic to me), I tend not always pay a lot of attention to the Supreme Court's modern Confrontation Clause jurisprudence.  But I do always pay a lot of attention to any indication that a new Justice is particularly concerned about the rights of criminal defendants, and so it is now interesting and notable to see Justice Gorsuch (joined by Justice Sotomayor) penning a dissent from the Supreme Court's denial of cert this morning in Stuart v. Alabama.  Here are key paragraphs from the start and end of the dissent:

More and more, forensic evidence plays a decisive role in criminal trials today.  But it is hardly “immune from the risk of manipulation.”  Melendez-Diaz v. Massachusetts, 557 U.S. 305, 318 (2009).  A forensic analyst “may feel pressure — or have an incentive — to alter the evidence in a manner favorable to the prosecution.”  Ibid.  Even the most well-meaning analyst may lack essential training, contaminate a sample, or err during the testing process.  See ibid.; see also Bullcoming v. New Mexico, 564 U.S. 647, 654, n.1 (2011) (documenting laboratory problems).  To guard against such mischief and mistake and the risk of false convictions they invite, our criminal justice system depends on adversarial testing and cross-examination.  Because cross-examination may be “the greatest legal engine ever invented for the discovery of truth,” California v. Green, 399 U.S. 149, 158 (1970) (internal quotation marks omitted), the Constitution promises every person accused of a crime the right to confront his accusers. Amdt. 6.

That promise was broken here.  To prove Vanessa Stuart was driving under the influence, the State of Alabama introduced in evidence the results of a blood-alcohol test conducted hours after her arrest.  But the State refused to bring to the stand the analyst who performed the test.  Instead, the State called a different analyst.  Using the results of the test after her arrest and the rate at which alcohol is metabolized, this analyst sought to estimate for the jury Ms. Stuart’s blood-alcohol level hours earlier when she was driving.  Through these steps, the State effectively denied Ms. Stuart the chance to confront the witness who supplied a foundational piece of evidence in her conviction.  The engine of cross-examination was left unengaged, and the Sixth Amendment was violated....

Respectfully, I believe we owe lower courts struggling to abide our holdings more clarity than we have afforded them in this area.  Williams imposes on courts with crowded dockets the job of trying to distill holdings on two separate and important issues from four competing opinions.  The errors here may be manifest, but they are understandable and they affect courts across the country in cases that regularly recur.  I would grant review.

November 19, 2018 at 11:47 AM | Permalink


The problem with the CC today is that there are not five justices who can agree on what it requires. The last thing the lower courts need is another fractured decision. The sad part is that with Justice K on the court there isn't likely to be major changes until someone leaves, which may not be anything soon.

Posted by: Daniel | Nov 19, 2018 1:11:00 PM

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