ROBERT SIEGEL, host:
Now to an issue that the Supreme Court is revisiting. Today, the court heard arguments in a case it had appeared to resolve less than seven months ago. The question relates to crime lab analysts and when they're required to testify in court. Today the court flirted with undermining or even reversing its ruling from June, as NPR's legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG: Until June, the vast majority of state and local prosecutors routinely submitted notarized reports from crime lab analysts for evidence at trial. The burden was on the defense to subpoena the state's forensic analysts if it wanted to cross examine them. But less than seven months ago, the Supreme Court, by a narrow five to four vote, said that procedure is unconstitutional and that the burden is on the prosecution to produce its witnesses to testify live unless the defense agrees to something less.
The court's decision was written by conservative Justice Antonin Scalia over the strong dissent of four justices. Since then, only one thing has changed: One member of the five-justice majority � David Souter � has retired, replaced by Sonia Sotomayor, who served for years as a prosecutor in Manhattan. So, all eyes were on Sotomayor today as the court considered two drug convictions based on affidavits from crime lab analysts as to what the substance was that was found on or near the defendants.
Sotomayor did not disappoint, asking lots of questions, but at the end of the day, she was noncommittal. The two cases under the microscope came from Virginia, which ironically, changed its law in August to comply with the Supreme Court's June decision. The convictions at issue, however, were under the state's old law, which allowed for affidavit testimony without the consent of the defense. On the steps of the Supreme Court today, both sides saw the issue in dire terms.
The state's solicitor general, Steve McCullough, said that since enactment of the new law four and a half months ago, demands for live testimony have increased tenfold and so has defense lawyer gamesmanship.
Mr. STEVE MCCULLOUGH (Solicitor General, Virginia): And what we've seen again and again is the analyst shows up and defense says, oh, I'm ready to stipulate now.
TOTENBERG: Meaning that the defense agrees to admit the forensic report without live testimony. Countering that was defense lawyer Richard Friedman, who contended that if Virginia's old statute is upheld, it would mean that any witness could avoid live testimony. He pointed to child abuse cases, for instance, where the prosecution has taken a written or videotaped statement from a child and introduces it, knowing that if the defense calls the child for cross examination, it will likely cost the defense dearly.
Justice Ginsburg confronted Friedman with the expense question raised by many states. Would it be all right, she asked, if in order to save money, crime lab analysts testified via video conference from the lab? Friedman noted that some states are experimenting with that, but he contended that, in fact, dire predictions of high costs are exaggerated. Justice Alito: How can you say that when we have a brief from 26 states and the District of Columbia saying exactly the opposite?
Virginia Solicitor General Steve McCullough told the justices that the confrontation clause of the Constitution stems from the Colonists' fear of anonymous accusers and no-show witnesses, and that the old Virginia law doesn't permit either. But Justice Scalia wasn't buying that argument, noting that under the old Virginia law, once a lab report is introduced into evidence, it may stay in evidence even if the lab analyst is a no-show later for cross examination.
Supporting Virginia today, the federal government's lawyer, Leondra Kruger, said that as long as the analyst is available, the prosecution has satisfied its burden at trial. Justice Scalia: Would this apply to other witnesses as well? Answer: Yes. Justice Stevens: Supposing you have an eyewitness, can the prosecution follow the same procedure? Answer: Yes, as long as the defense has the opportunity to cross examine if it wants to. Justice Sotomayor: Are you saying that a trial by affidavit is okay under the Constitution? Essentially, yes, was the answer and it didn't seem to sit very well.
Nina Totenberg, NPR News, Washington.