kronicfeld: DamnYankees: And by the way, we sometimes do let people 'testify' without them showing up. It's called an affidavit, and it has its uses.

Yeah, and they're extraordinarily narrow circumstances.

No they aren't. You're usiong the word "extraordinaty" very weirdly.

kronicfeld: Scalia is a big fan of the Confrontation Clause, if I remember correctly.

I remember reading about a case where the child sexual assault victim was too scared to testify in front of the defendant, so they had him testify over CCTV. Scalia said that the defendant wasn't able to confront the accuser, so it wasn't constitutional.

This, along with things like Hamdi v. Rumsfeld, go to show that no justice is universally awesome or awful.

Same goes for Thomas in cases like Kelo v. New London and Gonzales v. Raich.

benlonghair: And the prosecution, most of the time, has all the money and resources to bring to bear.

That's a joke right?

DamnYankees: I just think the presumption should be that in cases like this we should let the records in when there's no reason to doubt them.

After all, the burden is on the defendant to prove his innocence, right?

Also, wow, the authoritarians are out in force today.

Howie Spankowitz:

Wow...don't know when we'll ever see those alliances on a decision again.

It makes sense - Thomas is Scalia's #1 Knob Slobber and Breyer writes books in response to Scalia's books and borderline makes it a point to disagree with him. So even though C-Tom and Breyer are seemingly voting against their interests here, all it takes is one abnormal Scalia ruling and this is what happens.

kronicfeld: After all, the burden is on the defendant to prove his innocence, right?

Again, for the second time:

Rules of evidence are not the same thing as a burden of proof. Don't confuse them.

Until you understand that difference, stop making that silly argument.

DamnYankees: Until you understand that difference, stop making that silly argument.

Until you get out of law school, don't presume to talk down to me about the law.

Ryan2065: That's a joke right?

You disagree? Let's see, prosecutors office versus legal aid. Who has more resources? Time? Money?

Basically unless you're a well off defendant, yes, the prosecution has way more resources than you.

kronicfeld: DamnYankees: Until you understand that difference, stop making that silly argument.

Until you get out of law school, don't presume to talk down to me about the law.

Hey, it's that argument! Awesome. I'm sure you feel all warm inside now that you've condescended.

benlonghair: Ryan2065: That's a joke right?

You disagree? Let's see, prosecutors office versus legal aid. Who has more resources? Time? Money?

Basically unless you're a well off defendant, yes, the prosecution has way more resources than you.

That isn't even close to what you said.

Not to hijack this too much, but this also seems to suggest computer forensic evidence would also have to be handled by a real trained individual, not just by a cop. Which has been a concern lately to some. "I pointed and clicked my way through grabbing his browser cookies, so therefore he's guilty." Wouldn't fly any more. Julie Amero style prosecutions should be prevented if you require actual forensic skills with computers to present evidence.

This woman is EXACTLY why this is a good ruling.

When The Evidence Lies (new window)

DamnYankees: I just think the presumption should be that in cases like this we should let the records in when there's no reason to doubt them.

In general, you'll never have reason to doubt the validity of the results without scrutinizing the way in which the results are obtained.

The incompetent lab employees were able to operate for years in Houston without being discovered, resulting in hundreds and hundreds of false convictions.

Examination on the stand will easily illustrate when a lab tech doesn't know what the hell they're doing.

A big problem in many jurisdictions is that the lab guys work right alongside police and prosecutors and they all view themselves as part of one big team. That type of environment is not conducive to unbiased analysis of physical evidence.

Justice will best be served by increased scrutiny of the evidence and the methods by which the evidence is obtained.

kronicfeld: Until you get out of law school, don't presume to talk down to me about the law.

Out of interest, what is he saying that's wrong? Is he wrong to say that rules of evidence are not the same thing as burden of proof? Why does that get such a reaction from you?

I'm very conflicted about this ruling, personally. My fiancee is a tech (though doing cancer research), and she sees it as a huge imposition on lab-workers time. However, I think that the benefit of having huge numbers of drug cases not prosecuted is great-- but then, this is a convoluted way to achieve that result.

SchlingFocker: Justice will best be served by increased scrutiny of the evidence and the methods by which the evidence is obtained.

It's a good argument. I'm not fully decided on this issue, so I need to think about it more.

DamnYankees: Rules of evidence are not the same thing as a burden of proof. Don't confuse them.

I can see how this is a rules of evidence thing, but doesn't this change in the rules make it harder for a prosecutor to meet the burden of proof?

"I'm a BAAAAAAAAAAAD Supreme Court Justice...."

benlonghair: Also, wow, the authoritarians are out in force today.

Yeah wtf? I thought, lib or con, we were all going to be in agreement on applauding this ruling.

/That's twice in two weeks I actually thought there'd be a major consensus on something political/legal on fark
//I feel stupider every time I do it

Ryan2065: That isn't even close to what you said.

You're right, it was half misspeaking, half hyperbole. Now you know what I mean.

One way or the other, prosecution has most of the advantages, plus many people are of the opinion "Well he's being prosecuted, and they wouldn't prosecute somebody who wasn't guilty."

Ryan2065: DamnYankees: Rules of evidence are not the same thing as a burden of proof. Don't confuse them.

I can see how this is a rules of evidence thing, but doesn't this change in the rules make it harder for a prosecutor to meet the burden of proof?

Well, indirectly I guess. Whether you've satisfied the burden of proof is determined by evidence you can get into the trial. But the rules of evidence don't really depend on burden - they are more concerned with verification and accuracy, and are sort of blind to the concept of burden.

DamnYankees: Rules of evidence are not the same thing as a burden of proof.

A black-box process that spits out an indisputable "fact" does a pretty damn good job of shifting the burden of proof onto the defense.

Obdicut: I'm very conflicted about this ruling, personally. My fiancee is a tech (though doing cancer research), and she sees it as a huge imposition on lab-workers time. However, I think that the benefit of having huge numbers of drug cases not prosecuted is great-- but then, this is a convoluted way to achieve that result.

Well that sucks, but having police testify about their work is a huge imposition on their time as well.

This ruling does the following:
Forces prosecutions to prioritize more
Allows the defendant to confront ALL of the evidence against them

SchlingFocker: A black-box process that spits out an indisputable "fact" does a pretty damn good job of shifting the burden of proof onto the defense.

There are more ways than having people available to testimony to make it not a black box procedure. If they have to show the actual data, rather than just the results of the data, it might actually achieve more for the defense.

Ryan2065: fnorgby: NO it goddamn doesn't. Don't be naive. It means that prosecutors will have to prioritize when and where they use the scientific evidence. Murderers and rapists I'm betting are going to be high on that list.

Right, because having a lab tech take a whole day to travel and testify in one case isn't going to slow down the process at all.

"slow down the process" isn't a problem as far as I'm concerned. This is exactly what will cause a realignment of resources so that important stuff gets dealt with and unimportant (read: non-violent drug offenses) does not. So yeah, slow that motherfarker right on down.

I don't doubt that it's going to throw a bigass wrench into the works. It's going to seriously fark things up for a while. All the reason we shouldn'ta been doing it that way in the first place. We can't delay the recognition of constitutional rights because it would be *inconvenient* for prosecutors.

DamnYankees: It's a good argument. I'm not fully decided on this issue, so I need to think about it more.

If this helps at all, consider the idea of an independent federal body that conducts random spot checks of labs, retesting random samples and auditing chains of custody.

It removes the "black-box" aspect from the crime labs, but it doesn't place an undue burden on the crime labs to constantly send their lab guys to trials.

I Said: Allows the defendant to confront ALL of the evidence against them

This is a silly argument, was the defendant not allowed to have the lab tech called before?

sweetmelissa31: I am so confused. Why would Scalia and Thomas support this? I agree with the opinion, but it seems unlike them.

I'm very serious when I say that I don't mean any offense here, but many people in this thread are expressing surprise at the split on this opinion or that Scalia and Thomas did something that wasn't designed to turn the US into Nazi Germany. So here it goes; please don't be offended.

If this opinion surprises you, or if you think that ANY member of this Court has a serious political agenda that sways his or her vote, you are deeply ignorant of the way the Court works and the records of these justices. It may not be your fault. Many different groups, including hard news reporters, misrepresent the Court's procedures and the records of its members.

SchlingFocker: If this helps at all, consider the idea of an independent federal body that conducts random spot checks of labs, retesting random samples and auditing chains of custody.

I'm not sure why it would need to be a federal body as opposed to a state bt state thing, but I like the idea of overshight. I sort of assumed there already was oversight. Seems obvious.

Ryan2065: This is a silly argument, was the defendant not allowed to have the lab tech called before?

I think not. It would have been irrelevant.

I Said: Well that sucks, but having police testify about their work is a huge imposition on their time as well.

Yes, but interaction with the law is quite clearly part of police work. They are part of the legal system already.

I'd prefer any number of other alternatives. The only thing you really, really have to do is make the testing double-blind. Doing that while preserving the chain of evidence is tricky, but if you do it right, then you have unimpeachable evidence-- as long as you use negative and positive controls.

One question I'd have about this is where does it end? Let's say a lab worker uses a protocol written by someone else-- does the person who wrote the protocol also have to come and testify about the protocol? If not, why not?

Ryan2065: I Said: Allows the defendant to confront ALL of the evidence against them

This is a silly argument, was the defendant not allowed to have the lab tech called before?

Good point. I take that back.

SchlingFocker: If this helps at all, consider the idea of an independent federal body that conducts random spot checks of labs, retesting random samples and auditing chains of custody.

It removes the "black-box" aspect from the crime labs, but it doesn't place an undue burden on the crime labs to constantly send their lab guys to trials.

I don't believe that all tests require positive and negative controls at the moment, which is a huge problem.

fnorgby: We can't delay the recognition of constitutional rights because it would be *inconvenient* for prosecutors.

Can you say someone's constitutional rights are denied if they do have the right to confront the witness but just choose not to? There is a huge difference between allowing the defense to call the lab tech and forcing the lab tech to go to each and every trial his evidence is used in, even if the defense doesn't want him to come to the trial.

SchlingFocker: DamnYankees: It's a good argument. I'm not fully decided on this issue, so I need to think about it more.

If this helps at all, consider the idea of an independent federal body that conducts random spot checks of labs, retesting random samples and auditing chains of custody.

It removes the "black-box" aspect from the crime labs, but it doesn't place an undue burden on the crime labs to constantly send their lab guys to trials.

That'd be a better idea than this...

DamnYankees: I sort of assumed there already was oversight.

Nothing like there should be for a crime lab.

They required that lab techs pass tests periodically, with the tests being proctored by their supervisor.

You can guess where this went.

I suggested a Federal body simply to ensure standardization among the states.

Bored Horde: It's not like it's hard to get a PhD on salary to present your 'science'

It only requires a tech to show up to testify. No offense to techs, but the headline would be more accurate if it said you have to use scienticians to testify about science.

ju66l3r: What's next? The secretary in the precinct who typed up your report has to verify that she didn't misspell someone else's name and that she really did mean to type your name into the arrest warrant?

None of you defending this ruling want to touch that one? Surprising.

SchlingFocker: I suggested a Federal body simply to ensure standardization among the states.

I'm not sure we'd be able to impose standardization. States have the right to make their own standards re: criminal law. Not on the burden, but on the processes for testing stuff and whatnot.

Obdicut: I don't believe that all tests require positive and negative controls at the moment, which is a huge problem.

In addition to basic incompetence, the Houston Crime Lab also had outright falsification and fabrication of evidence.

Controls wouldn't do much against that.

Independent outside random testing for confirmation would help defend against that.

DamnYankees: SchlingFocker: In the case of the Houston crime labs, you had some lab techs who simply didn't know how to even do the procedures. If they were put on the stand and asked to describe the process of sampling and matching DNA, they would have failed miserably.

Ok. So if you went to the judge and said "your honor, we have reason to believe the lab tech didn't know what he was doing, because of resaons X, Y, and Z, so we would like to call him", I would let you call him. I just think the presumption should be that in cases like this we should let the records in when there's no reason to doubt them.

THAT is *EXACTLY* shifting the burden onto the defense. We know that records get messed up allagoddamtime. There is no reason to assume we can *trust* them unless someone testifies as to their trustworthiness. Ignoring this is (as has been pointed out previously, don't wana take credit for it) what has allowed slipshod practices to become institutionalized in some jurisdictions.

I never have understood why tough-on-crime people (and I don't mean that in any pejorative sense, honestly) don't get angry at the prosecutors/cops FIRST when someone like OJ goes free. THEY are the ones who could have done their jobs right the first time and protected the people against a murderer going free because his rights were violated.

Each defendant in every case has the right to question the validity, provenance and meaning of every single shred of evidence, and they have the right to do it every single time. In my opinion, no exceptions should be tolerated by either side. One group is concerned that bad evidence puts innocent people in jail. The other group is concerned that bad evidence lets guilty people go free. We're on the same goddamned team here.

SchlingFocker: In addition to basic incompetence, the Houston Crime Lab also had outright falsification and fabrication of evidence.

Controls wouldn't do much against that.

Independent outside random testing for confirmation would help defend against that.

Oh, definitely. I didn't mean to come off as though I was arguing against inspection. But positive and negative controls would make it easier for inspectors to detect fraud, as well.

I'd say that in addition to it being double-blind on the lab's side, it would be great if the police did not actually know which lab was performing the analysis. If the samples were sent to a chain-of-evidence-preserving oversight board, who randomly assigned it to a qualified lab. That way the incentive for fraud (for reasons other than incompetence or idiocy) drops away, and you can compare labs to each other well.

fnorgby: THAT is *EXACTLY* shifting the burden onto the defense.

No its not. It's a neutral rule. Test results and other such business records are equally admissable by the defendant and the prosecution. Obvious examples:

Prosuection puts forward a drug test showing the guy was high on coke.
Defense puts forward a voluntary drug test showing that he wasn't high.

Either could happen in a case. There's no bias towards either side in the rule, other than in the particular instance of drug testing, its more likely to be prosecution evidence, and not defense evidence.

Can we please stop confuding the rules of evidence with the burden of proof?

fnorgby:
Each defendant in every case has the right to question the validity, provenance and meaning of every single shred of evidence, and they have the right to do it every single time. In my opinion, no exceptions should be tolerated by either side. One group is concerned that bad evidence puts innocent people in jail. The other group is concerned that bad evidence lets guilty people go free. We're on the same goddamned team here.

Fine, then let this be handled the same way that cops handle moving violations in front of a magistrate:

A generic technician will be responsible for reading the test paper and attesting to the validity of the procedure along with any other notes that the actual technician who generated the report put on the back of the paper.

Otherwise, this ruling would seem to lead to throwing out the "desk cop" approach to reading tickets in traffic court as well. It doesn't seem that you can have desk cops reading tickets to magistrates, but force the actual technician to tell you that you were caught with a pound of real cocaine instead of a "desk technician".

DamnYankees: Prosuection puts forward a drug test showing the guy was high on coke.
Defense puts forward a voluntary drug test showing that he wasn't high.

What do you think the judge would say regarding the evidence if the defense put forward a voluntary drug test that had been performed by a private, certified, individual tester who was on the payroll of the law firm for whom the lawyer works?

DamnYankees: Defense puts forward a voluntary drug test showing that he wasn't high.

Providing he can afford one that will be able to hold water against the state's evidence.

ju66l3r: Fine, then let this be handled the same way that cops handle moving violations in front of a magistrate:

Magistrates are horrible treacherous villains that are generally a mockery of everything that our legal system should stand for.

You should be ashamed for even mentioning them.

d'oh i sux at tags.

SchlingFocker: What do you think the judge would say regarding the evidence if the defense put forward a voluntary drug test that had been performed by a private, certified, individual tester who was on the payroll of the law firm for whom the lawyer works?

They would probably want someone to testify he actually did that. But its slightly different, because the defendant is compelled to give a drug test for the prosecution, and he is observed doing so. The reason you would need a witness for the defendant isn't for the test itself, but for chain of evidence reasons (ie to confirm the urine in the test came from the defendant's body).

It's a slightly different thing. But this is just me thinking out loud.

DamnYankees: Nabb1: Because if the record is generated at the request of law enforcement, it was prepared specifically for the purpose of a criminal prosecution, i.e. not in the "ordinary course of business," hence, business records exception out, Sixth Amendment in.

I wasn't aware that something made for the purpose of prosecution (which I might also contest is the 'purpose' of these tests) was an exception to the business records exception. I've only taken my one semester of evidence, but is that in there? I would have imagine that since doing drug tests and the like is the entire 'business' of these people, then those records are presumed to be accurate.

Something generated specifically in anticipation of litigation is not a "business record" for purposes of the exception. Think: police reports.