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Confrontation As A Rule Of Production, Pamela R. Metzger
Confrontation As A Rule Of Production, Pamela R. Metzger
Faculty Journal Articles and Book Chapters
The Confrontation Clause is cost blind; the Supreme Court is not. In 2004, in Crawford v. Washington, the Supreme Court trumpeted its commitment to a procedural Confrontation Clause that required the prosecution to produce its witnesses in court, regardless of the cost or inconvenience. In 2007, in Melendez-Diaz v. Massachusetts, the Court retreated, offering courts, legislatures, and prosecutors an easy way to avoid Confrontation-laden trials. On the one hand, the Court warned that legislatures and courts could not “suspend the Confrontation Clause,” even if there were “other ways — and in some cases better ways — to challenge or verify” …
Cheating The Constitution, Pamela R. Metzger
Cheating The Constitution, Pamela R. Metzger
Faculty Journal Articles and Book Chapters
It is black letter constitutional law: To prove a criminal offense, the prosecution must prove every element of the offense, by proof beyond a reasonable doubt, and the constitution entitles a defendant to confront and cross-examine all witnesses against him. Yet, for the past thirty years, state legislatures have quietly approved laws that cheat the constitution. By that, I mean that these laws fly, undetected, beneath the constitutional radar while violating fundamental constitutional rights.
Although other constitutional cheats abound, in this article I consider one archetypical cheat: statutes that permit state prosecutors to use hearsay state crime laboratory reports, in …