If you read that the US Supreme Court decided at the end of June on a case referred to the right of confrontation of witnesses derived from the Sixth Amendment to the US Constitution (see Recent Opinions, Melendez-Díaz  vs Masachussets) ; that the voting was 5 to 4, that Justice Scalia wrote the decision for the majority and that Justice Kennedy lead the dissenters you will probably imagine the rest. Typical controversial decision splitting the Court between the conservative wing and the liberal wing. Too fast thinking this time.

The opinion of Justice Scalia was supported by Justice Thomas –nothing to write home about you may think- but also by Justices Stevens, Souter and Ginsburg. On the side of the dissenters, Justice Kennedy was backed once again by Justice Breyer, but his other bed mates –Justices Alito and Roberts- were not less common than Scalia’s, as they belong to the so called right wing of the Court being appointees of GWB.

In summary the Supreme Court ruled that crime laboratory reports –that have become quite familiar to the general public due to the success of the different versions of the TV series CSI- may not be used against criminal defendants at trial unless the analysts responsible for creating them give testimony and subject themselves to cross-examination. This ruling was actually an extension of a 2004 decision and comes back to underline the effects of the Sixth Amendment’s confrontation clause, which gives a criminal defendant the right “to be confronted with the witnesses against him.”

The position of the majority seems to be based on sound grounds. The respect and protection of constitutional rights as far as criminal prosecution is concerned is not a matter of choice, and those rights and their application must never be considered and obstacle in fighting against criminal activities, even if in the day to day work it could look so.


“The confrontation clause may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination,” Justice Scalia wrote. In his straight forward usual style he added that “Cross-examination of witnesses, is designed to weed out not only the fraudulent analyst, but the incompetent one as well.” And that the Constitution would require allowing defendants to confront witnesses even if “all analysts always possessed the scientific acumen of Mme. Curie and the veracity of Mother Teresa”.


The dissenters strongly underlined that the practical consequences of such decision could end up jeopardising thousands of criminal trials and even letting alleged criminals free. The base of their approach was the comparison between the limited resources, especially human resources, of criminal labs and the enormous number of trials to which labs’ staff could be summoned to confront the results of their analysis.


Without prejudice to my highest regards towards all Justices it appears crystal clear to me that the view of the majority is much closer to the respect of the law than the technicalities and excuses of the dissenters. It may look odd to many people that well known paladins of the Human Rights cause, namely Ginsburg, Souter and Stevens lined with classical ‘originalists’ such as Scalia and Thomas. It does not to me, as the point is whether efficiency in crime prosecution may justify lesser protection of constitutional rights, and there is only one answer for that. To provide that answer is a matter of Justice, not a question of Justices.





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