The Supreme Court unleashed a controversy earlier this year when it ruled that prosecutors couldn’t introduce results from blood-alcohol and other needed lab tests in court without testimony from the technicians who prepared them.
But how that decision should be carried out will be addressed in a new case to be argued before the court next month.
The saying, “Let justice be done though the heavens fall” is important in jurisprudence, but we live in a world of limited resources. Finding the right balance is not easy.
On the one hand is the fundamental constitutional principle of the right to confront one’s accuser. On the other hand is the practical reality that an individual technician in a lab might perform thousands of such analyses in a typical year. If in-person testimony is required even if only some of those cases actually go to trial, states and counties would have to hire hundreds or thousands more technicians.
At a time when state and local budgets are stressed and employees are being cut from many agencies, many see the budgetary implications as severe relative to the additional protection afforded the accused by personal testimony rather than a sworn affidavit.
In June, in a Massachusetts case, the high court ruled that crime-lab technicians in general, not just those who determine blood-alcohol levels, must appear to testify in person if demanded by the defendant. The 5-4 decision saw liberals David Souter, John Paul Stevens and Ruth Bader Ginsburg join conservatives Antonin Scalia and Clarence Thomas in favor of the requirement, while liberal Steven Breyer dissented along with conservatives Samuel Alito, John Roberts and Anthony Kennedy.
But just days after issuing that ruling, the court agreed to hear a Virginia case that might result in overturning of the June decision, particularly since Sonia Sotomayor, Souter’s replacement, may well vote against the requirement.
Can economists help settle this? The obvious economic insight is that society should expend additional resources on administering justice up to the point where the net marginal benefit produced by some measure is exactly equal to its marginal cost. The vexing problem is that the nonmonetary costs and benefits of a ruling like this are impossible to quantitatively predict or measure.
Yes, society benefits when citizens are treated in accordance with constitutional requirements. But drunken driving also causes enormous harm to society, as do other crimes that might require some sort of laboratory analysis. To the extent that requiring more in-person testimony raises the cost of prosecution and motivates district attorneys to grant easier terms in plea bargaining, the less effective would be the deterrent effect of DUI laws. At the margin, there will be more drunken driving and more deaths, injuries and property damage. Moreover, there is value to society in justice being done, including criminals being punished for the harm they do to society, and there is a cost when criminals go free.
But again, these costs and benefits are not practicably calculable. We thus have to fall back on an old standard in common law, “the rule of reason.” Reasonable women and men have to make subjective judgments about what legal requirements are justified or not. They won’t have much, if any, quantitative information to guide them, but their decision process necessarily is cost-benefit analysis.
© 2009 Edward Lotterman
Chanarambie Consulting, Inc.