Supreme Court: Right of Confrontation, Searches of Students

The United States Supreme Court handed down four decisions today.

The Right of Confrontation: in the most awaited criminal procedure case of the Term, a divided Supreme Court ruled that affidavits reporting that the forensic analysis of a substance seized from a defendant show the substance is cocaine, are not admissible in a criminal trial unless the defendant has an opportunity to cross-examine the analyst. Melendez-Diaz v. Massachusetts.

In Crawford v. Washington, 541 U.S. 36 (2004), the Court reformulated the Right of Confrontation by concluding that all "testimonial" statements are covered by the Sixth Amendment's Confrontation Clause, and that these statements are not admissible at a trial unless the defendant has the opportunity to cross-examine the declarant. Crawford gave "affidavits" as one example of a testimonial statement.

Justice Scalia was the author of the Crawford opinion, and as author of today's ruling he concludes that Melendez-Diaz "involves little more than the application of our holding" in Crawford.

The decision will have broad application to all criminal trials in which there is drug-test, ballistic-test, or other forensic evidence, and fundamentally changes the ease with which this evidence has been admitted in many states although not subject to cross-examination.

Notably, Justice Scalia's opinion indicates it would be constitutional for states to have a "notice-and-demand" statute: the prosecution informs the defense that it intends to offer forensic test results in evidence, and the defense would have a period of time to indicate whether it wants the analyst to testify at the trial. Such statutes do not constitute a waiver of the Right of Confrontation; they only govern the time within which the defense must assert the right.

Searches of Students: in a decision which will receive enormous press attention, the Court concludes that a strip search of a 13-year old student was constitutionally unreasonable. Safford Unified School District # 1 v. Redding.

In New Jersey v. T.L.O., 469 U.S. 325 (1985), the Court ruled that while police officers require probable cause to conduct a search, the standard of "reasonable suspicion" should be applied to determine whether searches by school officials are constitutional. While recognizing that "reasonable suspicion" is difficult to define, in today's ruling Justice Souter's opinion indicates that for school officials it means "a moderate chance of finding evidence of wrongdoing."

In this case the school officials were looking for prescription and over-the-counter pills. The Court concludes that there was reasonable suspicion to search the student's backpack and outer clothing. But the school officials went further. They asked the student to remove all her outer clothing and to then pull out her bra, and to pull out the elastic on her underpants, so that her breasts and pelvic area were exposed. No pills were found.

This sort of search is "categorically distinct" from a search of a student's outer clothing: it is embarrassing, frightening, humiliating, and degrading. While the indignity of a search does not outlaw it, its reasonableness must be measured in light of the age and sex of the student, and the nature of the alleged wrongdoing.

Here, there was neither the information nor a known danger that would require such an intrusive search. "[A] reasonable search that extensive calls for suspicion that it will pay off."

"In sum, what was missing from the suspected facts that pointed to [this student] was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that [this student] was carrying pills in her underwear. We think that the combination of these deficiencies was fatal to finding the search reasonable."

The case was the culmination of a civil rights suit brought by the student's parents. While concluding that the search was unreasonable, the Court concluded that considering the state of the law at the time of the search, the school officials involved are entitled to qualified immunity. Justices Stevens and Ginsburg concluded that the officials should not be entitled to qualified immunity. Only Justice Thomas found the search of the student constitutionally reasonable.

Punitive Damages: in Atlantic Sounding Co., Inc. v. Townsend, a divided Court rules that injured seamen can seek punitive damages when they sue for maintenance and care under federal maritime law and claim that maintenance and care were wrongfully withheld.

English Language School Instruction: in Horne v. Flores a divided Court addresses whether Arizona has met its obligations under the Equal Educational Opportunities Act, 20 U.S.C. § 1703(f), which requires States to "take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs."