Saturday, November 26, 2011

Right to confront witnesses

The LA Times reports:
Justice Antonin Scalia, the Supreme Court's most outspoken and combative conservative, is not often described as friendly to criminals.

But in recent years, Scalia has led an unusual pro-defendant faction at the high court in reversing convictions for murder, drug dealing, wife beating and drunken driving.

Next up in early December is a Chicago rapist who claims his 6th Amendment right to confront his accusers was violated because prosecutors did not put on the witness stand a lab technician from Maryland who conducted the DNA test that sent him to prison. ...

The 6th Amendment to the Constitution says the "accused shall enjoy the right … to be confronted with the witnesses against him." To Scalia, this clause not only gives defendants the right to challenge actual witnesses, but also the right to bar testimony from all those "witnesses" who did not or cannot testify in court. He takes this view even if the witness is dead. ...

In June, the court went one step further. The Scalia bloc, by a 5-4 vote, overturned the drunken-driving conviction of a New Mexico man because the lab analyst who testified about his blood alcohol did not actually work on the defendant's blood sample. ...

"This is not a left-right split. This is principle versus pragmatism," said University of Michigan law professor Richard Friedman. For Scalia, "this is all about adhering to originalism," regardless of whether the results seem strange.
This is not complicated. It is a core principle of the Bill of Rights, and in the founding of our republic. The state cannot convict someone based on a bunch of affidavits. The witnesses have to testify live in court, and answer questions.

The only bad part of this rule is that gangsters sometimes murder witnesses, and thereby eliminate their testimony.

Apparently some states think that certain prosecution witnesses should not have to testify. That is wrong. If they do not testify under oath, then they are not accountable for what they do. They must also be cross-examined to force them to explain their reasoning. Otherwise we would be headed to the day when a jury is asked to find a defendant guilty just because some nameless faceless lab technician says that he is guilty. That would not be a trial.

The family court tries to get away with relying on expert reports, whenever it can. These reports often result in a change of custody, even tho the report does not really explain the evidence for and against a change. Sometimes the experts are not really witnesses to anything. They are just quacks who collected some unsworn statements and give some conclusion about what the judge should do.

Lawyers call such statements conclusory. That word is not even in my dictionary, but lawyers use it all the time. It is not to be confused with conclusive. When a witness gives conclusive evidence, then that means proof of inncence or guilt. That is, the testimony gives a conclusion to the case.

But a conclusory statement is one that tries to give some sort of conclusion without supporting evidence. In a real court, testimony is dismissed as soon as the lawyer points out that it is conclusory. The quack court shrinks write conclusory reports that no legitimate judge would accept.

The right to confront witnesses against you in a criminal case is hanging on by a thread at the US Supreme Court. Someday, civilized societies will realize that family courts need to be following rules of evidence also.


Anonymous said...

The SC Family Law Court not only will not allow witness testimony but denies an accused the right to know what they are accused of. Kinda reminds me of a kangaroo court:
1.A mock court set up in violation of established legal procedure.
2.A court characterized by dishonesty or incompetence.

George said...

More and more I see it as evil, not incompetent.