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?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.
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.
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.