The price of justice

The 6th Amendment to the Constitution guarantees a criminal defendant the right “to be confronted with the witnesses against him.” In June, the Supreme Court adapted that principle to the age of “CSI” by requiring prosecutors who use laboratory reports to call the experts who prepared them so that they can be cross-examined by the defense.

Now, after exaggerated complaints by some prosecutors, the court will revisit the issue in arguments on Monday. It should decline the invitation to rein in or reverse its ruling. Not for the first time, a court decision has forced prosecutors to change the way they do business and incur additional costs. And rightly so; the court shouldn’t put a price tag on the exercise of a fundamental constitutional right.

In its 5-4 decision in June, in a drug case from Massachusetts, Justice Antonin Scalia (joined by fellow conservative Clarence Thomas and three liberal justices) came to the convincing conclusion that laboratory analysts are “witnesses,” because their reports could lead to a defendant’s conviction. Now the court will review a decision of the Virginia Supreme Court that would weaken the new rule. The state court held that there is no violation of a defendant’s rights as long as the laboratory expert can be called as a witness when the defense is making its case.

This might seem a distinction without a difference. But lawyers for two men convicted of cocaine offenses based on laboratory analysis argue that cross-examination during the prosecutor’s case is likely to have a greater impact than putting experts on the stand during the defense’s case. That practice also undermines the principle that the burden of proof is on the prosecution, not the defense.


Taking their cue from the dissenters in June’s decision, 26 state attorneys general (not including California’s Jerry Brown) have told the Supreme Court that requiring technicians to appear as witnesses as part of the prosecution’s case -- instead of appearing only when requested by the defense -- is inordinately costly and already is having “an overwhelming negative impact on drug prosecutions.” But the attorneys general concede that they’re relying partly on “anecdotal evidence.” L.A. County Dist. Atty. Steve Cooley says his office hasn’t been panicked by the decision and has adapted its guidelines to reflect the ruling.

It’s too early to judge the financial costs of a decision that is little more than 6 months old. But cost isn’t the issue. At a time when television crime dramas suggest that forensic testing is infallible, jurors are likely to give prosecutors the benefit of the doubt when they introduce a scientific report whose author can’t be cross-examined about the care with which a test was conducted. When it reviews the Virginia ruling, the high court should render an opinion that says, in effect, “We were right the first time.”