Monday, December 05, 2011

Argument for confronting witnesses

I mentioned below that the US Supreme Court was hearing another case on the right to confront witnesses. The leader in this subject, law professor Jeffrey L. Fisher explains it:
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. ...

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.
It is distressing that four justices could give such a ridiculous argument. They could just look the famil court to see the folly of letting experts just mail in their reports.

I reported on a local court expert with a mail-order degree who wrote a court-order requiring a psychotropic drug for a child. Such a witness would be out of business if she were held accountable with vigorous cross-examination. Someone would ask: What his your expertise on this drug? Who have you ever treated? Why does your university have an address in the Cayman Islands? How would you recognize adverse side-effects of the drug?

This current Supreme Court case is an important case. If the defendant loses, we will be on the way to having phony govt experts deciding who get punished in our society.


Anonymous said...

iMaybe, I'm not understanding something, here.

"occasionally proves more revealing than their written testimony."

Therefore, the refusing of the cross exam. witness, is the same as refusing something that can prove a defendant's innocence, which is sufficient to create reasonable doubt. or at least IF I'M A MEMBER OF THIS JURY....

So, eveything a person says and does, can and will be used against him in a court of law, but, there are only some things that he can do or say in defending himself, because it's not always convenient enough for the court ?

So, do you think that if a Justice himself were being tried for murder, he'd be completely understanding that a cross exam was being refused as part of his defense because such only "ocassionally" proves his and other's innocence versus often, or frequently, etc. ?

George said...

Yes, if you are on the jury, and you think that good evidence has been withheld, then you could decide that there is reasonable doubt.

But you probably would not be astute enough to notice. Most people are snowed by expert opinions. That is why they are experts. If a psychiatrist said that a child needs a drug called Risperdal, would you know enough to realize that his opinion might be bogus?

Anonymous said...

None of the 12 jurors might not be astute enough to know if it was bogus, but many of the 12 would be astute enough to know that the wit ness went unchallenged, and that's enough for reasonable doubt.

Anonymous said...

Many of the jurors not aware of the incentives, motives, and agendas of the system, lawyers, and people. Like some comments they get snowed by experts. They also snowed by witness letters and character letters.

I know there is no jury in family courts but most evidence and witness or character letters are also rigged, I am not saying all but most. So as the expert statements -evaluators, psychologists, doctors, social workers, schools.

Anonymous said...

experts...shrinks, lawyers, and what's in the best interest of the child....

Shrinks and their kids have the highest rate of suicide.

Lawyers are among the least respected professionals.

So, you have to pay alot to an untrusworthy profesional, so that you are forced to pay alot to a member of the most suicidal group of people, because they are experts in determining what's in the best interest of your child.

Oversimplified ?