Rights versus Convenience

NPR ran a story this morning about a case being argued before the U.S. Supreme Court today. This case revisits a SCOTUS decision last year.

Until last year, prosecutors in all but 10 states could introduce a notarized affidavit from crime lab experts, attesting to their findings with respect to critical evidence. This document was sufficient to state that, for example, the white powder found on a defendant was indeed cocaine, or that a defendant’s DNA matched that found on a rape or murder victim. Forensic analysts only appeared if subpoenaed by the defense.

But in June, the U.S. Supreme Court ruled by a 5-to-4 vote that the clause of the Constitution that requires the accused to be confronted by the witnesses against him puts the burden on the state to produce not just paper certificates, but live forensic witnesses, who can be cross-examined. Without these live forensic witnesses, the court decided, forensic evidence cannot be introduced.

The opinion ended up putting actual practice somewhere in the middle – prosecutors must send a notice to the defense that they intend to to introduce an affidavit. The defense can then object to the affidavit being introduced without the witness appearing. If the defendant does not enter an objection, the affidavit is considered sufficient without the witness. This shifts the burden back onto the defendant, but greatly simplifies it by not requiring them to actually go through the more complex process of issuing a subpoena.

Here’s the part that concerns me:

Nevertheless, four justices were outraged by the decision, predicting that it would result in a windfall for the defense, huge expense for the states and the release of guilty defendants.

Why do they want to restrict the Rights of the accused based on the expense to the states? Shouldn’t a person’s Right to face the witnesses against them trump any consideration of convenience and cost-savings of the government? The same government that’s prosecuting them?

Only one thing has changed since June. One member of that five-justice majority — David Souter — has retired, and been replaced by Sotomayor. Prosecutors hope that having been a criminal prosecutor herself in New York, Sotomayor will be sympathetic to their cause.

This is why SCOTUS appointments are so important. One Justice can cause a complete reversal of a previous decision. One Justice can tilt the balance of power from the people to the government. One Justice can make the difference in whether you can effectively exercise your rights or not.

Let’s not forget that Heller was a 5-4 decision, too.

Some 24 states are asking the court to reverse itself as well, citing backlogs, costs and other problems they say the decision has created.

Again, backlogs, costs, or “other problems” do not matter in the face of a Constitutionally Enumerated Right intended to protect the people from an overzealous or abusive government. Frankly, the decision didn’t go far enough – the entire burden should be on the prosecution, and the defendant should not have to do anything for the witness against him to appear at trial.

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