Thursday, June 25, 2009


I wrote on Tuesday about the two cases of interest to the criminal bar yet to be decided this term. The court issued its rulings this morning.

A big win in Melendez-Diaz v. Massachusetts. The Court held that lab reports are testimonial and, therefore, the Sixth Amendment does not permit them to be used as evidence against a defendant without live testimony and the opportunity to cross-examine the purported expert. The court's opinion was written by Scalia (and joined by Stevens, Souter, Thomas, and Ginsburg). Thomas also wrote a concurring opinion. Kennedy dissented in an opinion joined by Roberts, Breyer, and Alito. Here's the substance, culled from the syllabus (which isn't, officially, part of the opinion).
The arguments advanced to avoid this rather straightforward application of Crawford are rejected. Respondent’s claim that the analysts are not subject to confrontation because they are not “accusatory” witnesses finds no support in the Sixth Amendment’s text or in this Court’s case law. The affiants’ testimonial statements were not “nearly contemporaneous” with their observations, nor, if they had been, would that fact alter the statements’ testimonial character. There is no support for the proposition that witnesses who testify regarding facts other than those observed at the crime scene are exempt from confrontation. The absence of interrogation is irrelevant; a witness who volunteers his testimony is no less a witness for SixthAmendment purposes. The affidavits do not qualify as traditional official or business records. The argument that the analysts should notbe subject to confrontation because their statements result from neutral scientific testing is little more than an invitation to return to the since-overruled decision in Ohio v. Roberts, 448 U. S. 56, 66, which held that evidence with “particularized guarantees of trustworthiness” was admissible without confrontation. Petitioner’s power to subpoena the analysts is no substitute for the right of confrontation.Finally, the requirements of the Confrontation Clause may not be relaxed because they make the prosecution’s task burdensome. In any event, the practice in many States already accords with today’s decision, and the serious disruption predicted by respondent and the dissent has not materialized.
The other case is Safford United School District # 1 v. Redding, the student strip-search case. And the result is more complicated.

The simple part is Thomas's opinion concurring in part but dissenting in the key stuff. The school, he said, had a perfect right to strip search Savana Redding, at least as far as the Constitution is concerned. End of story.

Stevens and Ginsburg disagreed: No, they didn't. Any fool can see that the searches violated the Fourth Amendment. Our earlier decisions made that evident. Even the idiots at the school should have been able to see that. Hold those people responsible.

The rest of the court fully joined an opinion by Souter which says, in essence, "No they couldn't do that. But we've never made that clear before, so you can't hold it against the people who did it." Something like, "Harm, but no foul." Welcome to the world of qualified immunity.


There'll be more opinions, including some closely watched ones, the last of the term, on Monday. But the criminal and criminal-related cases are done for now.

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