The Breakfast Table

Confronting the Confrontation Clause

Dahlia and Walter,

Setting this week’s crime lab analysis case and last week’s DNA testing case side by side and trying to get my hands around them both, something has been bothering me. Looked at for their results—forget the doctrinal basis for those results—they don’t make sense. In last week’s District Attorney’s Office v. Osborne, the court ruled 5-4 that a criminal defendant did not have a right to DNA testing of the evidence against him—even at his own expense. In this week’s Melendez-Diaz v. Massachusetts, the court ruled 5-4 that defendants have a right to cross-examine the technician who performed the laboratory analysis of incriminating evidence (cocaine, in that case)—even if it meant that understaffed crime labs might have to send their technicians to courtrooms hundreds or thousands of miles away, perhaps years after the fact, to testify about something they might or might not even remember.


The difference, of course, is that the first case arrived on the court’s docket as a due-process case, and the conservatives on the court, as Chief Justice Roberts’ majority opinion made clear, are not in the business of establishing new due-process rights. The second case came up under the Confrontation Clause, the constitutional provision that textualist/originalist justices love more than any other except the Second Amendment and the Sixth Amendment jury-trial right that underlies the Apprendi/Booker line of cases about criminal sentencing. What part of confrontation, Justice Scalia asks, don’t you understand? As Walter pointed out in his earlier post, this decision was produced by the unusual—but typical of Sixth Amendment cases—lineup of the textualist conservatives (Scalia and Thomas), plus the liberals (Ginsburg, Souter and Stevens), while the dissenters were the more pragmatic conservatives (Roberts and Alito) and the pragmatic liberal (Breyer), plus Kennedy.

All this is quite comprehensible to those of us who live in Supreme Court land. But to anyone living in the real world, it must seem completely baffling, even nonsensical. Just a thought for a Sunday morning as we practice our breathing exercises for a busy Monday.