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SCOTUSblog: Justice Scalia makes the case for Indian defendant
Thursday, March 3, 2011
Filed Under: Law

"Two days after winding up, quite angrily, on the losing end of a major criminal law ruling, Justice Antonin Scalia moved energetically on Wednesday to try to make sure it does not happen again — at least not in the next case up on the same issue. The Court’s most determined protector of criminal suspects’ rights to confront their accusers, Scalia spent a good deal of time trying to bolster the argument of a defense lawyer for a New Mexico man convicted of drunk driving based, in part, on a crime lab report. As it turned out, the lawyer did not seem to need all that much help.

The case of Bullcoming v. New Mexico (09-10876), heard Wednesday, is not a direct sequel to the Court’s decision, handed down Monday in Michigan v. Bryant (09-150), but each of the two cases provides an important test of where the current Court is going with its interpretation of the Sixth Amendment’s Confrontation Clause. For the past five years, the Court has been moving, more or less steadily, to expand the right of confrontation.

Bryant, however, created — over Scalia’s strenuous dissent — what may turn out to be a sizable loophole in the right of confrontation, by widening an exception to the Clause’s requirement that an out-of-court statement cannot be used if the source of the statement does not show up to be challenged at trial. A statement making an accusation, the Court ruled, may be used as evidence if police got it while trying to deal with an emergency, even if the source of that statement had died before the trial.

Bullcoming gives Scalia — and defense lawyers — a chance to shore up confrontation, if the Court were to hold that a crime lab report cannot be used unless prosecutors bring to court for cross-examination the lab technician who actually did the test and signed the report. Stanford law professor Jeffrey L. Fisher, representing convicted drunk driver Donald Bullcoming, found in his argument — early and throughout — that the Justices were mainly interested only in the details of how such a requirement would work. The notion that the lab expert most acquainted with the report could be replaced by a substitute witness seemed to draw no noticeable support from the bench."

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Argument recap: Scalia for the defense (SCOTUSblog 3/2)