[Justice Kennedy] foresaw ”a very substantial burden” on the prosecution and on the courts, and told counsel advocating for confrontation that he was significantly underestimating the impact. But, as the hearing moved along, Kennedy saw as “a very important point” that California has not experienced such a burden and “gets along all right” with summoning lab analysts to the stand with some frequency...I like the implicit federalism point here. Just as state legislatures can be "laboratories of democracy," state courts can be laboratories of rights, and here we see the California courts serving as an experiment in working with an expansive version of the right to confront witnesses in a criminal trial. Instead of needing to wonder about the burdens of dealing with a new requirement, the Supreme Court can look at the results in California.
November 11, 2008
Lyle Denniston reports on the oral argument in Melendez-Diaz v. Massachusetts: