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Supreme Court liberals and conservatives find common ground on confrontation clause

This article first appeared in the St. Louis Beacon, June 26, 2009 - Every so often, the usual liberal-conservative alignment on the U.S. Supreme Court breaks down. One of those times was Thursday when the court ruled 5-4 that criminal defendants can insist on confronting the analysts who prepare crime lab reports for trial.

The two most conservative justices on the court -- Justices Antonin Scalia and Clarence Thomas -- joined three of the more liberal ones -- Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg -- to rule that the 6th Amendment's right of the accused to be confronted with witnesses against him includes the employees who prepare lab results analyzing evidence. The decision in Melendez-Diaz vs. Massachusetts involved a lab test finding that a substance found on a defendant was cocaine of a specific weight.

Scalia, who wrote the decision, has been a big defender of the Confrontation Clause. He and Thomas read the Constitution literally and, read literally, the amendment provides defendants with the right to confront witnesses against them. Scalia wrote that the affidavits completed by lab analysts were "testimonial statements" and that made the analysts "'witnesses' for purposes of the Sixth Amendment.

Justice Anthony M. Kennedy, who usually gets to be the deciding vote in 5-4 splits between the liberals and conservatives, ended up writing the dissent this time. He didn't seem to like it. He accused the court of sweeping away 90 years of practice during which lab results have been introduced into evidence without the analyst in court.

"It is remarkable," Kennedy wrote sarcastically, "that the Court so confidently disregards a century of jurisprudence. We learn now that we have misinterpreted the Confrontation Clause -- hardly an arcane or seldom-used provision of the Constitution -- for the first 218 years of its existence."

Kennedy predicted that the court's decision would create chaos and lead to guilty defendants being released because lab technicians couldn't make it to a trial.

Joining Kennedy in dissent was Justice Stephen Breyer, normally aligned with the liberals, and Chief Justice John G. Roberts and Justice Samuel Alito, two conservatives.

Roger Goldman, a law professor at Saint Louis University, said that the line-up was not surprising given Scalia and Thomas' emphasis on the text of the Constitution and Kennedy's practical approach to decision-making.

"Thomas and Scalia read that clause literally, the way Hugo Black read the First Amendment," said Goldman. "Whereas those justices who could care less about original meaning, like Kennedy, take a more pragmatic approach. What is interesting is to see that Alito and Roberts are in the pragmatic camp."

The court's decision may not have much effect in Missouri or Illinois because both states already have ruled that the Confrontation Clause applies to lab technicians. In addition, defendants can waive the right to confront a witness, which may happen in most cases.

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. Previously, he worked for the St. Louis Post-Dispatch for 34 years, serving as assistant Washington Bureau Chief and deputy editorial editor. He covered the U.S. Supreme Court while in Washington. He is a graduate of Kirkwood High School, Stanford University and Washington University Law School. He is a member of the Missouri Bar.