U.S. Supreme Court Decision Cites Article by Prof. Roger Park

Justice Anthony M. Kennedy's dissenting opinion in Bullcoming v. New Mexico—argued March 2, 2011 and decided June 23, 2011—cites a 2007 article by UC Hastings professor Roger C. Park, James Edgar Hervey Chair in Litigation.

Park’s article, “Is Confrontation the Bottom Line?” was published in 19 Regent U. L. Rev. 459, 461 (2007). In it, Park demonstrates that “the Court's purpose-blind embrace of the formality criterion means, anomalously, that measures taken to make out-of-court statements more reliable have the bizarre effect of increasing the probability that they will be excluded from evidence.” 

Bullcoming v. New Mexico

“A closely divided Supreme Court on Thursday continued its pattern of restricting prosecutors’ use of out-of-court statements to get criminal convictions,” reports Lyle Denniston on SCOTUSblog, “ruling that a report of a crime lab is valid evidence only if the technician who did the testing or observed it — not a substitute witness — is called to the stand.  But the main opinion, and a concurring opinion, labored at length to stress just how little the Court had decided.  It was clear that the Justices who controlled the outcome had been put on the defensive by an aggressive dissent — typical in this line of cases.”

From the Opinion of Kennedy, J., dissenting:

The protections in the Confrontation Clause, and indeed the Sixth Amendment in general, are designed to ensure a fair trial with reliable evidence. But the Crawford v. Washington, 541 U. S. 36 (2004), line of cases has treated the reliability of evidence as a reason to exclude it. Id., at 61–62. Today, for example, the Court bars admission of a lab report because it “is formalized in a signed document.” Ante, at 15 (internal quotation marks omitted). The Court’s unconventional and unstated premise is that the State—by acting to ensure a statement’s reliability—makes the statement more formal and therefore less likely to be admitted. Park, Is Confrontation the Bottom Line? 19 Regent U. L. Rev. 459, 461 (2007). That is so, the Court insists, because reliability does not animate the Confrontation Clause. Ante, at 11; Melendez-Diaz, supra, at ___ (slip op., at 11–12); Crawford, supra, at 61–62. Yet just this Term the Court ruled that, in another confrontation context, reliability was an essential part of the constitutional inquiry. See Michigan v. Bryant, 562 U. S. ___, ___–___, ___–___ (2010) (slip op., at 11–12, 14–15).

Resources

• Read “Is Confrontation the Bottom Line?” 19 Regent U. L. Rev. 459, 461 (2007).
• Read the Bullcoming v. New Mexico slip opinion (PDF).
• Read Bullcoming v. New Mexico case page on SCOTUS blog.