Right to confront witnesses has been weaker in practice than most believe
By Jack Elliott Jr.
Associated Press
JACKSON, Miss. (AP) — The U.S. Supreme Court has denied motions to hear appeals in two separate Mississippi cases dealing with a defendant’s right to confront his accusers under the Sixth Amendment to the U.S. Constitution.
In drug cases from Harrison and Tunica counties, the nation’s high court without comment last week let stand decisions against Mississippi defendants who had sought to question the analysts who tested the illegal drugs. Instead, prosecutors put on the stand laboratory supervisors who only reviewed and verified the results.
The Sixth Amendment guarantees that “in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” It also addresses the rights to an attorney and a speedy trial.
Legal scholars say the right to confront witnesses has been weaker in practice than most people believe and has been trumped by state exceptions allowing secondhand testimony.
Attorneys on both sides of the confrontation cite the history of the issue before the U.S. Supreme Court. The Supreme Court, in a frequently cited 2011 decision in a New Mexico case, said the surrogate testimony couldn’t convey what the original analyst knew about the tests performed. Other Supreme Court justices said tests are entirely machine-run and “requiring the state to call the technician who filled out a form and recorded the results of a test is a hollow formality.”
In the two drug cases, a majority of the Mississippi Supreme Court ruled in 2012 that situations arise when a primary analyst isn’t available to testify.
“A supervisor, reviewer, or other analyst involved may testify in place of the primary analyst where that person was ‘actively involved in the production of the report and had intimate knowledge of the analyses even though (he or) she did not perform the tests firsthand,’” the majority said.
Presiding Justice Jess Dickinson, in a dissent, said that without a prior opportunity to cross-examine an analyst, the men’s constitutional right to confrontation was violated and they were denied a fair trial.
Testing was done by analyst who had gone on medical leave by the time Jenkins came to trial. The analyst’s supervisor was allowed to testify instead. The supervisor testified that, based on his review of the analysis, he reached his own conclusion that the substance was cocaine.
