i love these threads. criminal law fascinates me

/nothing to contribute

Obdicut: 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?

I am not a lawyer, but from my understanding, no.

Under Crawford, one of the first questions to ask about any piece of evidence is "Is this testimonial?" In other words, did the person who made this statement or wrote this report or whatever do so with the intention of having that statement introduced in court against this particular defendant? If so, then the Confrontation Clause applies, and there has to be an opportunity for cross-examination.

A standard lab protocol is not testimonial, just like the design of a piece of standard lab equipment is not testimonial (and for that matter, just like the legislative debates that went into passing the law that the defendent is being charged under are not testimonial). They are not targeted against a specific person or a specific case. Yes, the protocol or the equipment may have been designed with the idea that it would be useful in court cases in general; but the person who designed them didn't have this particular defendant in mind during the design process.

Now, in cases where there's some weird new form of evidence that's gathered, and the prosecutor says "Hey, crime lab, we really need to know fact X about this evidence", and there's no established protocol or piece of equipment for dealing with it, and somebody at the crime lab calls some scientist and says "How should we do this?", and the scientist says "Well, I think you should do A then B then C -- hey, looks like that works", then the scientist's design of that one-off protocol might very well be testimonial; at the least, it would be a lot more interesting question. But when an ordinary piece of evidence comes in, and Lab Tech X uses Standard Protocol Y to produce Report Z, then it's hard to argue that the author of Standard Protocol Y has given anything resembling "testimony".

DamnYankees: 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.

I get your point.

So instead of misusing the term "burden of proof" which I shouldn't have done, I'll say "unfairly puts an onus on the defense in a manner that is, in my opinion, inconsistent with the philosophy behind the presumption of innocence."

ok, why do I not see a problem with this SCOTUS ruling? this all seems like a damn good thing for 'we the people'.

Not to be an elitist or anything... but who here isn't glad this didn't get greenlighted? I'm finding the whole thread informative (I know, right? on Fark?) and educational.

KickahaOta: Obdicut: 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?

I am not a lawyer, but from my understanding, no.

Under Crawford, one of the first questions to ask about any piece of evidence is "Is this testimonial?" In other words, did the person who made this statement or wrote this report or whatever do so with the intention of having that statement introduced in court against this particular defendant? If so, then the Confrontation Clause applies, and there has to be an opportunity for cross-examination.

A standard lab protocol is not testimonial, just like the design of a piece of standard lab equipment is not testimonial (and for that matter, just like the legislative debates that went into passing the law that the defendent is being charged under are not testimonial). They are not targeted against a specific person or a specific case. Yes, the protocol or the equipment may have been designed with the idea that it would be useful in court cases in general; but the person who designed them didn't have this particular defendant in mind during the design process.

Now, in cases where there's some weird new form of evidence that's gathered, and the prosecutor says "Hey, crime lab, we really need to know fact X about this evidence", and there's no established protocol or piece of equipment for dealing with it, and somebody at the crime lab calls some scientist and says "How should we do this?", and the scientist says "Well, I think you should do A then B then C -- hey, looks like that works", then the scientist's design of that one-off protocol might very well be testimonial; at the least, it would be a lot more interesting question. But when an ordinary piece of evidence comes in, and Lab Tech X uses Standard Protocol Y to produce Report Z, then it's hard to argue that the author of Standard Protocol Y has given anything resembling "testimony".

That makes sense, thank you.

fnorgby: Not to be an elitist or anything... but who here isn't glad this didn't get greenlighted? I'm finding the whole thread informative (I know, right? on Fark?) and educational.

Man my timing sux. Insert "up to now" where appropriate above.

Megain: i love these threads. criminal law fascinates me

/nothing to contribute

I'm more interested in how the politics on this one will shake out. The mere fact that so many drug cases and abusive DUI laws will not require more effort to prosecute SHOULD force a political shift against frivolous prosecution. If it's expensive to try cases, then only the cases that really need to be prosecuted should end up in court.

Or so goes my thinking on this one anyway.

...er....

and abusive DUI laws will not now require...

bah. need more coffee.

Weaver95: The mere fact that so many drug cases and abusive DUI laws will not require more effort to prosecute SHOULD force a political shift against frivolous prosecution. If it's expensive to try cases, then only the cases that really need to be prosecuted should end up in court.

Or so goes my thinking on this one anyway.

They'll just pull resources and personnel from the Public Defender's office and shift them to the Prosecutor's office :)

Weaver95: ok, why do I not see a problem with this SCOTUS ruling? this all seems like a damn good thing for 'we the people'.

From the prosecutor's side, it can seriously slow down prosecutions in the courtroom and tie up laboratory staff in court when they could be in the lab. I think it's a valid point, but not enough to override the Confrontations Clause issues.

fnorgby: Not to be an elitist or anything... but who here isn't glad this didn't get greenlighted? I'm finding the whole thread informative (I know, right? on Fark?) and educational.

Antonioni Scialfa is an extra-terrestrial.

ju66l3r: 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.

I think that's just a straw man argument there. By the time we got to warrant writing there should be enough evidence that exists outside of that single document that would lead you to the conclusion that the warrant was accurate.

A warrant also isn't in and of itself evidence. So it just seems tangential to try to refer to it as such. Testing and test results are pointed to as evidence and should be under severe scrutiny.

/ianal
//trying to get motivated to study for the lsat

fnorgby: Can you say someone's constitutional rights are denied if they do have the right to confront the witness but just choose not to?

What's different? The defense could always agree to stipulate that the evidence is acceptable and there's no reason to bring the tech in. I bet a lot of defense attorneys in a lot of cases will do just that.

If there's a reason why this kind of stipulation wouldn't be a perfect substitution for the way things were, then that reason is a reason why this is a good ruling. (IMO, and IANALY)

This is a change in the rules of evidence though... Can the defense allow the prosecution to ignore one of the rules of evidence? Is that legal?

Good decision.

Nabb1: Weaver95: ok, why do I not see a problem with this SCOTUS ruling? this all seems like a damn good thing for 'we the people'.

From the prosecutor's side, it can seriously slow down prosecutions in the courtroom and tie up laboratory staff in court when they could be in the lab. I think it's a valid point, but not enough to override the Confrontations Clause issues.

How would the confrontation clause be overridden if the defendant has the right to call the lab tester to the stand? Making it mandatory to enter the evidence is just silly and a waste of time and money.

Nabb1: Weaver95: ok, why do I not see a problem with this SCOTUS ruling? this all seems like a damn good thing for 'we the people'.

From the prosecutor's side, it can seriously slow down prosecutions in the courtroom and tie up laboratory staff in court when they could be in the lab. I think it's a valid point, but not enough to override the Confrontations Clause issues.

yeah, but I think we've allowed standards to slip when it comes to evidence. Look at the abuses in DUI and anti-drug laws, for example.

As I understand it, the 'core principal' of our legal system has always been 'innocent until proven guilty'. So to my mind, this ruling is merely an extension of that core principal. Making sure that the standard of evidence is beyond reproach can only be a GOOD thing, right?

plus it also means that cops and prosecutors will focus on cases that really ARE all about the bad guy and might stop with trying to force a case based on their political career(s). Or so I hope anyways.

jbuist: SCALIA, J., delivered the opinion of the Court, in which STEVENS,
SOUTER, THOMAS, and GINSBURG, JJ., joined. THOMAS, J., filed a concur-
ring opinion. KENNEDY, J., filed a dissenting opinion, in which ROB-
ERTS, C. J., and BREYER and ALITO, JJ., joined.

Now there's an interesting break down!

It happens in criminal law cases more often than you think. Given the text of the Sixth Amendment, I can't say I'm surprised that Scalia would have decided this way.

The whole liberal/conservative breakdown of the Court is not anywhere near as clear-cut as people think.

Ryan2065: Can the defense allow the prosecution to ignore one of the rules of evidence? Is that legal?

Yes.

I wonder if this ruling will bring some level of sanity back to the ass rape we call 'DUI'....?

kronicfeld: Ryan2065: Can the defense allow the prosecution to ignore one of the rules of evidence? Is that legal?

Yes.

Are you saying that from experience or you just think it should be that way so it must be?

Ryan2065: fnorgby: Can you say someone's constitutional rights are denied if they do have the right to confront the witness but just choose not to?

What's different? The defense could always agree to stipulate that the evidence is acceptable and there's no reason to bring the tech in. I bet a lot of defense attorneys in a lot of cases will do just that.

If there's a reason why this kind of stipulation wouldn't be a perfect substitution for the way things were, then that reason is a reason why this is a good ruling. (IMO, and IANALY)

This is a change in the rules of evidence though... Can the defense allow the prosecution to ignore one of the rules of evidence? Is that legal?

Yes, a defendant can waive some of their rights if they do so voluntarily and intelligently.

Weaver95: I wonder if this ruling will bring some level of sanity back to the ass rape we call 'DUI'....?

What tests are sent out in the DUI cases?

Send in the scientists (new window)!.

"I think the effect of this could be very, very bad for public safety," said Fairfax Commonwealth's Attorney Raymond F. Morrogh. "If we are not able to use this evidence, which is reliable, but it's excluded because we can't get the technician here, the guilty will go free. It's a real challenge for us to deal with it.

Never mind, I just needed to read further.

good. the DUI laws needed a swift kick in the 'nards.

If they swear on a bible God should show up.

/then we can kill him again

Ryan2065: What tests are sent out in the DUI cases?

This ruling will undoubtedly provide for scrutiny of the software used by breathalyzers.

There's a reason the breathalyzer manufacturer has been fighting tooth and nail to avoid having their software exposed in court.

The "black-box" aspect will be removed.

gorgor: If they swear on a bible God should show up.

/then we can kill him again

god-mode on.

SchlingFocker: Ryan2065: What tests are sent out in the DUI cases?

This ruling will undoubtedly provide for scrutiny of the software used by breathalyzers.

There's a reason the breathalyzer manufacturer has been fighting tooth and nail to avoid having their software exposed in court.

The "black-box" aspect will be removed.

Scratch that. It won't. My bad.

What does this mean for the red-light cameras?

Interesting possible side effect: creation of more lab tech jobs. This could be a win-win situation.

Weaver95: I wonder if this ruling will bring some level of sanity back to the ass rape we call 'DUI'....?

aren't the "scientists" who administer that test called cops?

NuttierThanEver: it also means fewer rapists and serial killers too.

I would disagree, only because rapists and murderers will tend to have their investigations done very much by the book because there's so much pressure for a conviction, where with potheads, you don't have victim's families coming down on you about locking them up, and there's usually very little if any investigation.

SchlingFocker: Ryan2065: What tests are sent out in the DUI cases?

This ruling will undoubtedly provide for scrutiny of the software used by breathalyzers.

There's a reason the breathalyzer manufacturer has been fighting tooth and nail to avoid having their software exposed in court.

The "black-box" aspect will be removed.

That should be very, very interesting indeed. Also - won't the cops have to prove that the officer using the machine in the field is qualified to operate the equipment and analyze the results? From what i've read, not every officer on every police force has been checked out on those machines.

SchlingFocker: This ruling will undoubtedly provide for scrutiny of the software used by breathalyzers.

That needed to happen anyway.

Though I just looked it up, the blood tests to measure the BAC are done in hospitals and sent to the lab. For some reason I thought that was done in the police station with something like the thing that measures sugar in the blood for diabetics.

The fact that the decision broke the way it did, with conservative and liberals on either side, means this might actually be the right decision.

On the other hand, the most important point of this decision has been overlooked - that forensic science, long ignored and marginalized as an egghead oddity, is now as important, if not more so, to secure a conviction as classic criminal investigation. Police departments, the FBI, law enforcement in general, and the people that fund them (that's you and me, people) need to embrace that idea, and start putting funds where they're needed. Era of the nerd, baby.

Ryan2065: kronicfeld: Ryan2065: Can the defense allow the prosecution to ignore one of the rules of evidence? Is that legal?

Yes.

Are you saying that from experience or you just think it should be that way so it must be?

Any objection can be waived. Whether it should is an entirely different matter. Both sides may also enter stipulations as to points of evidence or law over which there is no disagreement.

Driedsponge: What does this mean for the red-light cameras?

I don't know but now I can't get "Roxanne" out of my head.

i think it's appropriate to assert someone established as a professional is present to testify as to the proper interpretation of a set of data. lord knows such things can sometimes be misleading without deep understanding.

yeah, it's gonna slow things down a while and crime labs will see a huge increase in their burden but hey, look at it this way, it's creating jobs! (jobs that are worthwhile, as the quality of our justice benefits us all)

toonz: Weaver95: I wonder if this ruling will bring some level of sanity back to the ass rape we call 'DUI'....?

aren't the "scientists" who administer that test called cops?

Not always, at least according to this article:

In drunken driving cases, Fairfax also faces a problem. In most DWI cases, the county uses breath-test technicians stationed in the jail to perform the blood-alcohol tests rather than the arresting officers so the entire 1,300-officer force does not have to be trained on the machines. But there are only a few dozen technicians in Fairfax processing about 4,000 DWI cases a year. Training Virginia's largest police force on the machines is not feasible financially, spokeswoman Mary Ann Jennings said.

iollow: NuttierThanEver: it also means fewer rapists and serial killers too.

I would disagree, only because rapists and murderers will tend to have their investigations done very much by the book because there's so much pressure for a conviction, where with potheads, you don't have victim's families coming down on you about locking them up, and there's usually very little if any investigation.

Wait, what? Are you saying they already had the lab techs come in to the trial and testify in murder and rape cases?

Driedsponge: What does this mean for the red-light cameras?

They'll convert those to administrative fees and since those aren't a criminal matter you don't get due processes.

An Scrumtrulecent original.

Given that there's been cases of incompetent lab work, and worse, actual dishonesty, this doesn't seem inappropriate. The scientific foundation may be trustworthy, but that doesn't mean that the people working at the lab are necessarily perfectly implementing the science.

Driedsponge: What does this mean for the red-light cameras?

Nothing. Red light cameras, I would imagine, fall into the same category as surveillance cameras (at a bank, for example). Presumably the camera has an operator even if the operator isn't present at the time of the recording.

Scalia follows the law, period. He's a great justice.

Weaver95: toonz: Weaver95: I wonder if this ruling will bring some level of sanity back to the ass rape we call 'DUI'....?

aren't the "scientists" who administer that test called cops?

Not always, at least according to this article:

In drunken driving cases, Fairfax also faces a problem. In most DWI cases, the county uses breath-test technicians stationed in the jail to perform the blood-alcohol tests rather than the arresting officers so the entire 1,300-officer force does not have to be trained on the machines. But there are only a few dozen technicians in Fairfax processing about 4,000 DWI cases a year. Training Virginia's largest police force on the machines is not feasible financially, spokeswoman Mary Ann Jennings said.

t'anks. To you and Ryan2065, both.
Golly. this thread is informative.

/and yes i could'a googled it meself, but thanks for checking it.

Am I the only one who thinks this provides even more ammunition for laxer drug laws?

If the labs are going to be overwhelmed, then change the laws so they are not being backlogged with drug cases. Of course this only applies to nonviolent.... etc. etc. etc.

Not only will that avoid the delays that are sure to arise from this ruling, but it will have a dramatic effect of decreasing future logs, and will allow the technicians to focus on the serious cases.

Ms. Hammertoe, an E.R. nurse, has to testify every time a case that she performs a rape examination on comes to trial. Why should a CSI lab tech be any different?