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Justice Samuel A. Alito Jr.’s first Supreme Court opinion received little public notice when it was issued on May 1 and was largely overwhelmed by the media attention given to the Anna Nicole Smith case decided the same day. Yet his opinion will have more lasting importance for our legal system. Speaking on behalf of a unanimous court in Holmes v. South Carolina, No. 04-1327, the newest justice set aside the conviction of Bobby Lee Holmes, who had been found guilty by a South Carolina jury of the murder, rape and robbery of an elderly woman. The prosecutor had introduced forensic evidence which, if believed, would provide powerful evidence of Holmes’ guilt. Nonetheless, the court reversed the conviction because the trial judge had prevented Holmes from offering evidence that another person may have committed the crime. The opinion is notable for several reasons. First, it reaffirms and strengthens an important constitutional right, one not explicitly mentioned in the Constitution and hence sometimes overlooked by attorneys: the right of a criminal defendant to introduce evidence, sometimes even in violation of a state evidence rule. The court has never decided whether the right is derived from the due process clause of the 14th Amendment or the confrontation or compulsory process clauses of the Sixth Amendment. But it nonetheless exists and guarantees a criminal defendant “a meaningful opportunity to present a complete defense.” Second, the opinion describes when this right trumps state evidence law. Normally a criminal defendant is subject to the same rules of evidence as the prosecutor or a civil litigant. But according to the opinion, when an evidence rule is “arbitrary or disproportionate to the purpose it is designed to serve,” it must yield to a defendant’s constitutional right to produce evidence. In previous cases, the high court has found unconstitutional state evidence rules that prevented a defendant from calling an accomplice to testify on his behalf, from offering hearsay evidence of a third party’s confession to the crime, from offering the defendant’s own hypnotically refreshed testimony or from offering an explanation for a retracted confession. Lower courts have found this right even to trump state rules of evidentiary privilege. Evidence of third-party guilt Here the Supreme Court found “arbitrary” a state rule that if the prosecution offered forensic evidence that, if believed, would strongly establish the defendant’s guilt, the defendant would be precluded from offering evidence that someone else committed the crime. The court did not question that the state may impose some limits on a defendant’s right to introduce evidence casting blame on a third person, such as requiring that it be more than speculative. But evidence of third-party guilt meeting such a standard cannot be barred merely because the prosecutor appears to have a strong case, particularly when the prosecution’s evidence is disputed and has not yet been assessed by the jury. In an era when new advances in forensic science dominate many criminal trials, the opinion made clear that courts should not be overawed by such evidence. The prosecutor had introduced enough forensic evidence to be the basis for several episodes of CSI: a palm print, hair fibers, blood stains and DNA, all alleged to point the finger at Holmes. But Holmes called experts who challenged the procedures used by the police in gathering and handling this evidence and offered additional evidence that law enforcement officers had engaged in a plot to frame him. The South Carolina court seemed willing to discount these challenges and to accept the forensic evidence as virtually conclusive in establishing the defendant’s guilt, even though it had not yet been assessed by the jury. But the opinion held this to be error, stating that “by evaluating the strength of only one party’s evidence, no logical conclusion can be reached regarding the strength of contrary evidence offered by the other side to rebut or cast doubt.” The case highlights one of the fundamental distinctions between civil and criminal trials. In civil cases, courts can direct verdicts against defendants and grant summary judgments in favor of plaintiffs. In criminal cases, courts have no such authority. No matter how overpowering the prosecution’s evidence may seem, defendants are still entitled to challenge it, to have it evaluated by a jury and to offer their own evidence tending to show innocence subject to generally applicable evidentiary standards. Because of the central role of the jury in criminal trials, a group of law professors urged in an amicus brief that the case be decided on the ground that Holmes’ Sixth Amendment right to a jury trial had been violated. The opinion chose not to address that argument. Nonetheless, it is grounded on fundamental principles of fairness going to the heart of due process. It constitutes an impressive inaugural contribution by the court’s newest member. Laird Kirkpatrick is the co-author of Federal Evidence 2d (West 2005) and other books on evidence. He is the Hollis Professor of Legal Procedure at the University of Oregon and currently a visiting professor at the George Washington University Law School.

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