In an editorial, the New York Times says the outcome of a Sixth Amendment case set to be argued today before the Supreme Court case could be “a significant setback for civil liberties.” The case, Briscoe v. Virginia, concerns a man convicted on drug charges. The prosecutors relied on certificates prepared by forensic analysts to prove that the substance seized was cocaine, reports the Times. They did not call the analysts as witnesses, and the defendant appealed, claiming violation of the amendment’s confrontation clause, which guarantees defendants the right to see prosecution witnesses in person and to cross-examine them.
The Supreme Court ruled 5-4 last June that when prosecutors rely on lab reports they must call the experts who prepared them to testify. The issue will now be revisited. The Times says, “Critics of the ruling last June argue that it imposes too great a burden and excessive costs on prosecutors. But in states where analysts have to testify, the burden is easily manageable. Ohio's 14 forensic scientists appeared in 123 drug cases in 2008, less than one appearance each per month. It is not clear why the Supreme Court is rushing to reconsider this issue. () If the court changes the rule, it would be a significant setback for civil liberties, and not just in cases involving lab evidence. Prosecutors might use the decision to justify offering all sorts of affidavits, videotaped statements and other evidence from absent witnesses.”