Diluting the Sixth Amendment

None of the most anticipated Supreme Court cases remaining this term—on health care, immigration, or "fleeting expletives" on broadcast television—came down today. But we did get a Sixth Amendment ruling that is both important in itself and tells us something important about the justices on the Court.

The Sixth Amendment gives a criminal defendant the right "to be confronted with the witnesses against him." The Confrontation Clause cases are interesting because they usually demonstrate the limits of describing the Court as fixed "liberal and conservative" blocs. Generally, the reliably statist Chief Justice Roberts and Justice Alito have joined with Justice Kennedy (a more moderate conservative, but one with a consistent terrible record in Fourth and Sixth Amendment cases) and Justice Breyer (a more liberal justice with conservative tendencies in civil liberties cases.) Conversely, although they're generally considered the most conservative justices on the Court Justices Thomas and Scalia have exhibited libertarian tendencies in Confrontation Clause cases, and have historically been joined by Justice Ginsburg and the Court's now-departed liberal Republican wing (Justices Stevens and Souter.)

Whether President Obama's nominees would follow Ginsburg or Breyer was unclear, as I explained in discussing this case last year. One this level, the decision today is reassuring, in that both Justice Kagan and Justice Sotomayor embraced a strong vision of the Confrontation Clause. Unfortunately, this was for naught, as Justice Thomas switched sides, giving the statist wing of the Court five votes to reject the Sixth Amendment claim.

The case today concerns the right to confront experts who produce forensic evidence. The Court has recently held—correctly, in my view—that the Confrontation Clause means that if states introduce forensic evidence compiled by experts it must make these experts available in court if the defense requests it. Today's case represented Illinois trying to make an end-run around these precedents by having a state employee who was not involved in producing the forensic evidence—in this case, a DNA test of semen from a vaginal swab in a sexual assault trial—testify about the results. The defendant was not given the opportunity to cross-examine the private analysts who actually produced the evidence, and hence could not inquire in Court about whether proper procedures were followed. But the Court held that this did not violate the Sixth Amendment.

It is not surprising that Justice Alito (along with Kennedy, Roberts, and Breyer) found an excuse to admit this testimony, given that they're hostile to the idea of the state being required to have its forensic experts defend their findings in Court in the first place. But why did Justice Thomas switch? His opinion is not terribly illuminating, and given the unusually long time it took this case to come down it's possible that he switched his vote at the last minute. Thomas refused to join Alito's pluarlity opinion, and his concurrence explicitly announces that he "share[s] the dissent’s view of the plurality’s flawed analysis." Alone among the justices, however, he held that the defendant's Sixth Amendment rights were not violated because the third-party findings relayed to the Court through the state expert "lacked the requisite 'formality and solemnity' to be considered “ ‘testimonial’ ” for purposes of the Confrontation Clause." This makes very little sense on its face, and Justice Thomas's opinion does not (to put it mildly) make a persuasive case that the state can evade the requirements of the Sixth Amendment so long as the damning third party evidence is presented in sufficiently "informal" language.

As Justice Kagan says in a quite brilliant dissent, "Justice Thomas’s approach, if accepted, would turn the Confrontation Clause into a constitutional geegaw—nice for show, but of little value. The prosecution could avoid its demands by using the right kind of forms with the right kind of language." Kagan's dissent is also valuable because it begins by explaining why the Court is wrong to give states a roadmap for evading the requirements of the Sixth Amendment today. Kagan discusses a California case in which cross-examination was used to reveal that a DNA sample of blood on a sexual assault victim's clothing that had been attributed to the defendant in fact belonged to the victim, and hence provided no evidence of the guilt of the accused. Even honest and competent forensic analysts can make mistakes, and we should not assume that all analysts employed or commissioned by the state are honest and competent. The Constitution gives the accused the right to cross-examine experts who produce apparently damning forensic evidence. Today, the Court preserves this right in theory but guts it in practice.

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