“Simply put, confrontation in this context costs too much.”

December 3rd, 2011

Jeffrey Fisher has this Op-Ed in the TImes titled The Bill of Rights Doesn’t Come Cheap:

In similar cases in 2009 and earlier this year, in which I represented the defendants, Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Stephen G. Breyer and Samuel A. Alito Jr. accepted claims by state governments that, simply put, confrontation in this context costs too much. It is far more efficient, these justices contend, to let analysts simply mail their reports to court. Having to appear at trials pulls them away from their labs, and only occasionally proves more revealing than their written testimony. Hence, these justices maintain, “scarce state resources” are better committed elsewhere. . . . .

The same battle lines are being drawn again in the case to be heard next week (for which I have signed a friend-of-the-court brief in support of the defendant). In Williams v. Illinois, the defendant contends that he should have been given the right to confront an analyst in the lab that generated a DNA profile from the crime scene. Yet the State of Illinois argues that the extra cost of bringing that witness into court was unnecessary, because the defendant had an opportunity to question a different analyst who compared that profile to the defendant’s and concluded that it was a match.

The court should follow this lesson in Williams and refuse to be cowed by prosecutorial bogeymen. It unquestionably costs money to deliver the fundamental demands of justice. But the price is not nearly so high as the states usually claim. And the price of failing to enforce basic procedural rights is, in the long run, much higher.

Social Cost. Liberty is costly.