The Right to Confront Your Accuser is Under Attack By Andrew Mishlove on October 15, 2012

One of the recent trends in law is the strengthening of a fundamental constitutional right: the right to confront your accuser. That's right, I said strengthening. While many constitutional rights have been watered down and weakened in the last two decades, the right to confront your accuser has been resurrected from the dead. It is now, however, again under attack in Wisconsin. This is a little technical, so let me explain.

The Sixth Amendment to the United States Constitution states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

The key phrase is "to be confronted with the witnesses against him." This was in response to the worst abuses of the English system, where persons might be convicted on the basis of affidavits. For many years, the right of confrontation was seen as just a re-phrasing of the hearsay rule: that is, that an out-of-court statement, offered for the truth of the matter asserted, was inadmissible. That point of view was expressed in the US Supreme Court case, Ohio v. Roberts. The problem is that the definition of "hearsay" is quite narrow and there are many there are exceptions to the hearsay rule.

All of that changed with the Supreme Court decision on Crawford v. Washington, where the Supreme overruled Ohio v. Roberts. They held that the fundamental constitutional right to confrontation is not simply another way of stating the hearsay rule. Testimony has to be offered in court, in person, even if a hearsay exception applies or if it is not, strictly speaking, hearsay. The issue is not whether it is hearsay but whether not is "testimonial."

In the drunk driving realm, there are several important cases. In Massachusetts v. Melendez-Diaz, Bullcoming v. New Mexico and Williams v. Illinois, the US Supreme Court strengthened the right to confront the laboratory analyst who actually performs a forensic test. So, a report or affidavit from the analyst is not sufficient. Also, a substitute analyst cannot be brought in to testify as to the first analyst's report. A defendant has the right to confront the actual analyst who did the test.

This is critical because blood analyses are very subject to human error. In some circumstances there has even been deliberate cheating. In Massachusetts, police chemist Annie Dookhan has been arrested and charged with falsifying many lab reports. The same thing has happened elsewhere. There is even a slang term for it: "drylabbing."

In two Wisconsin cases, however, that fundamental right is under attack. In State v. Deadwiller, the court of appeals allowed a substitute government analyst to testify about the DNA test results of done by a private lab, Cellmark. The fact that the lab was private and that the results were turned over to a government agency seemed to be the court's rationale. In my opinion, the reasoning was obscure. The matter is now pending before the Wisconsin Supreme Court.

There is another important pending case: State v. Michael Griep. I represented Michael at trial. The University of Wisconsin Law School Innocence project has become involved in the case. The lab analyst did not come to court to testify. Instead, the state called a substitute analyst. The original analyst's report was not offered into evidence. Rather, the state had the substitute witness testify that he had reviewed the laboratory records and formed an independent opinion as to the blood analysis result. Of course, that is no more than legal sleight of hand. It uses a hearsay rule exception to avoid the right to confront your accuser. It completely ignores the development of the confrontation clause over the last ten years. This matter is pending before the court of appeals and will, doubtless, wind up in the Wisconsin Supreme Court.

I would not be surprised if one or both of these cases ends up in the United States Supreme Court. Stay tuned.

If you are suffering hardship because of a drunk driving arrest contact Attorney Mishlove, one of America's top-rated DUI OWI defense lawyers.

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Andrew Mishlove and Lauren Stuckert

Mishlove and Stuckert, LLC Attorneys at Law

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