Happy Constitution Day

Happy Constitution Day, Fellow Citizens! How depressing. With daily reports of daily assaults on our rights and freedoms under one of the greatest documents ever created — from our national government spying on us, to low-level judges refusing to honor their oaths to protect the Constitution and our (North Carolina) state government openly snubbing its nose at our protections, Happy Constitution Day indeed!
The sixth amendment to the United States Constitution guarantees the right of the criminally accused to “be confronted with the witnesses against him.” This confrontation clause is so referred to and often talked about and argued about as the right to confront and cross-examine the witnesses against the criminal defendant; case-law has not expanded the right to include cross-examination but interpreted the clause to include the right to cross examine the witness — it’s not particularly confrontational if you don’t get to ask that witness questions.
The 2005 US Supreme Court case of Crawford v. Washington is probably the most important case dealing with the confrontation clause ever to be decided. What I love about this 50-odd page opinion, penned by (no friend to criminal defendants) Justice Antonin Scalia is primarily the fact that Scalia rolled back decades of exceptions to the right of confrontation that swallowed up the right itself but also that the first half of the opinion talks about the Sir Walter Raleigh treason trial. In Raleigh’s case (he represented himself and he was brilliant), the Crown sought to introduce statements made by Lord Cobham against Raleigh without Cobham actually testifying. Raleigh argued that he had the right to confront and cross-examine Cobham, and if Cobham weren’t brought into court to be confronted and cross-examined then his statements should be suppressed. Raleigh was right but the Court ruled against him (ah, the lot of the criminal defense lawyer), and he was convicted of treason, for which, 16 years later, he had his head chopped off. Centuries later, Raleigh’s conviction was overturned … some consolation, I’m sure.
Quite simply, what Crawford does is re-establish the criminal defendant’s right to be confronted with and to cross examine the witnesses against him.
On August 1 of this year, a new law went into effect. 7A-304, the cost of court statute, has been expanded to include a provision that calls for the criminal defendant, who is convicted and at whose trial the State was required to prove the case with the testimony of an analyst, to pay a $600.00 fee for the expense of that analyst’s testimony.
You see where I’m going with this: How can the State make the defendant pay money for the constitutionally protected right to be confronted with and the opportunity to cross-examine the witnesses against him? That’s exactly where I’m going. The state can’t.
Here’s what’s interesting, and I think what slam dunks this statute into unconstitutionality: While the legislative branch of government is doing all it can to circumvent the Constitution, the appellate courts, in their efforts to do the same, have actually and unwittingly, I’m sure, helped the accused and protected the Constitution. The most recent cases dealing with the issue of whether a substitute analyst can testify as to the findings of the actual analyst are disturbing in that they allow the substitute analyst to testify as to the findings of the actual analyst. The rationale being that the Defendant can cross-examine the substitute analyst, who is the witness on the stand (irrespective of the fact that this witness was not the witness who performed the test and came up with the analysis and that this witness is not the witness the Defendant needs to be able to cross examine — this witness is not Lord Cobham). But as disturbing as these decisions are, these decisions are all based on the confrontation clause.
Why is this important? When the issue of the constitutionality of the analyst testimony fee comes before the Court of Appeals, it will be interesting to see how they will twist and squirm to rule for the State when they have already decided that the issue of an analyst’ s testimony is under federal constitutional grounds — the confrontation clause — but the State’s argument will be that the fee is “cost of court.”
Clearly, the fee for the testimony of the witness against the criminal defendant is unconstitutional, and the Court of Appeals’ recent decisions do nothing but support that conclusion.
Happy Constitution Day.