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03/28/2016
Scalia was Careful Keeper of Confrontation Clause
 
To the editor of the Lawyers Weekly: 
I can think of one reason in particular that the legal community in blue-state Massachusetts has for mourning the recently departed Justice Antonin Scalia: his concern for the Confrontation Clause of the Sixth Amendment to the U.S. Constitution. 
It was Scalia who wrote for the majority on the last two major cases involving the Confrontation Clause. In Crawford v. Washington, which was decided 5-4, the right to cross-examination concerning out-of-court statements was upheld: “Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required … . [T]he only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” 
The court reaffirmed and extended that reasoning in a subsequent Massachusetts case, Melendez-Diaz v. Massachusetts. In Melendez-Diaz, the issue was whether a chemist must be produced for cross-examination in a drug case, or whether the analysis and weighing of controlled substances is such a technical and precise process that cross-examination would be pointless. 
Melendez-Diaz was also decided 5-4, and Justice Scalia again wrote for the majority: Bring in the chemists! After the Annie Dookhan scandal, we all know how important a decision that was. 
 
Now, a new petition for certiorari concerning the Confrontation Clause is before the court, and again, there is a Massachusetts connection. 
 
In the matter of Aifang Ye v. U.S. before the 9th U.S. Circuit Court of Appeals, the issue is whether an out-of-court statement made through an interpreter can be introduced without subjecting the interpreter to cross-examination. On this issue, the circuits are divided. 
The 9th Circuit and two others hold that an interpreter is a mere conduit, through which speech passes unaltered from one language to another. This “language conduit” theory was rejected by the 11th Circuit, as it is by most experts in court interpretation. 
Two Massachusetts attorneys, Brook Hopkins of WilmerHale and Alan Jay Rom (together with three other WilmerHale attorneys in Washington, D.C.), have recently submitted an amicus brief in Aifang Ye, writing in support of the petitioner. It was filed on behalf of the Massachusetts Association of Court Interpreters, the organization that recently brought suit against the Trial Court regarding the misclassification of per diem court interpreters, which results in the reduction of interpreter services to persons of limited English proficiency. (“Interpreters file suit against Trial Court administrators,” Oct. 20, 2015) 
A ruling on Aifang Ye should logically follow the precedents set by Crawford and Melendez-Diaz, but the death of Scalia throws the fate of Aifang Ye to the wind. The decision to grant a petition for certiorari requires a favorable vote by four justices. If certiorari is granted, the case will not be heard until the new session begins in October. 
Of course, a 4-4 decision lets stand the 9th Circuit ruling. If there is a new ninth justice by the time the case is heard, then let us hope that he or she will be as concerned about affirming the right to confrontation as was Scalia. 
In any case, the justices will certainly be thinking of Scalia when they make decisions on Aifang Ye. Confrontation of witnesses against a defendant was an issue he cared about.
Dr. Michael O’Laughlin
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