I’m seeing a scary trend. An unholy alliance between the legislature and judicial branch dedicated to concocting new laws that make convicting citizens easier. Tiny example: when I started defending criminal cases in 1993, I was permitted two closing arguments; the first closing, then a rebuttal after the state. Not anymore. The accused only get to make one closing argument.
Many technical rules of the court are tipping in favor of the state. Add to this the fact that the legislation itself has gotten out of control, we have more criminal laws on the books than ever before. And, lets not forget that our incarceration rates are through the roof. Oh, and can judges make sentencing decisions? Sort of, as long as they don’t disagree with the mandatory minimum sentences. Yes, the constitution places limits on some of these changes, and one such limitation is found in the Sixth Amendment.
The Six Amendment states that “in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. This constitutional right is known as the Confrontation Clause, and it forces prosecutors to use live testimony in trial so that the accused may properly cross examine the witness against him, rather than permit prosecutors to admit pieces of paper which cannot be questioned. Recent Confrontation Clause case law from our U.S. Supreme Court has overturned state practices which permit papers to be introduced as evidence against citizens when the admission of such papers will not permit the accused to cross examine such. Massachusetts had a law which permitted the prosecution in drug cases to simply admit a lab report to identify what the drug was–that law was struck down because there is no way for the defendant to challenge the report, the testing procedure, the qualifications of the test operator, etc. (for more info, see my article here, on Melendez-Diaz v. Massachusetts).
Prosecutors like using documents instead of live testimony because defense attorneys cannot effectively cross examine a piece of paper. Defense attorney cross-examinations provide juries a greater level of understanding–and we all know knowledge seems to be something our government seeks to keep out of the juries hands. Don’t get me wrong, I try to keep stuff out too, but I’m not an elected official sworn to seek justice…you know what I’m trying to do. Police work is only easy in a police state, and new laws and new court opinions that make police work easier simply erode what little freedom we have left. I’m not all doom and gloom here, as one recent Fourth District Court of Appeals case shut down a prosecutor and trial judge who permitted written testimony to be given to a jury in violation of the Sixth Amendment.