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Right to confront: Supreme Court strengthens Sixth Amendment

For years, the U.S. Supreme Court held prosecutors could use written laboratory reports without presenting a live witness to testify as to the validity of those results.

Then, in 2004, the court said that — because the defendant is supposed to have the right to “confront his accusers” — testimony from an absent witness can be accepted only if the witness is unavailable and the defendant had an earlier opportunity to cross-examine.

Five years later — over the objections of four law-and-order justices who feared overburdening the justice system — the court ruled laboratory reports could not be admitted without “a live witness competent to testify to the truth of the statements made.”

Thursday, the court took the next step, deciding who that live witness should be.

Writing for the 5-4 majority, Justice Ruth Bader Ginsburg held Thursday that New Mexico drunken driving defendant Donald Bullcoming should have had the opportunity to cross-examine the lab analyst who provided the main evidence in his trial: a report showing his high blood-alcohol level.

The constitutional guarantee means prosecutors must produce the technicians involved in the specific laboratory tests used in the trial, if possible, the high court now holds.

The majority rejected the finding of the New Mexico Supreme Court that the machine that calculated Bullcoming’s blood-alcohol level was his real accuser, while the technician who recorded its findings was a “mere scrivener.”

The analyst must be called to certify that “he received Bullcoming’s blood sample intact with the seal unbroken, that he checked to make sure that the forensic report number and the sample number corresponded and that he performed on Bullcoming’s sample a particular test, adhering to a precise protocol.” Such “human actions” are “meet for cross-examination,” the court holds.

And with good reason. As many as 20 capital murder cases were appealed in the 1990s over autopsies mishandled by a circuit-riding contract medical examiner in more than 40 rural Texas counties. And in the late 1990s, Alan Yurko was jailed in Florida after conviction in a “shaken baby syndrome” case — until authorities learned the autopsy described a baby of the wrong race.

Cross-examination of a living witness could have helped.

Some have expressed surprise at the grouping of justices in the majority, here, as liberals Ginsburg, Sonia Sotomayor and Elena Kagan teamed with sometime libertarians Antonin Scalia and Clarence Thomas.

In fact, though, smaller government advocates on the right and civil libertarians on the left often find a common interest in protecting the rights of the accused against “meat-grinder” justice. It’s better, as has been said many times, for 10 guilty men to go free than for one innocent to be convicted in the rush to make prosecutions “more cost-effective.”

The court got this one right.

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