Neil Gorsuch testifies at his confirmation hearing in March. Photo: Diego M. Radzinschi/NLJ

The late Justice Antonin Scalia led a revolution in how to interpret the constitutional right to confront your accuser. Justice Neil Gorsuch on Monday seemed ready to carry the flag.

As a judge on the U.S. Court of Appeals for the Tenth Circuit, Gorsuch, who took Scalia’s seat after his death in 2016, had not written on the scope of the Sixth Amendment’s confrontation clause. But in a dissent Monday in an Alabama drunk-driving case, Gorsuch offered a hint of where he may be headed. Gorsuch, joined by Justice Sonia Sotomayor, had urged the court to take up the case.

“Because cross-examination may be ‘the greatest legal engine ever invented for the discovery of truth,’ the Constitution promises every person accused of a crime the right to confront his accusers. That promise was broken here,” wrote Gorsuch, citing a 1970 Supreme Court decision.

Scalia launched a rigorous interpretation of the confrontation right in his 2004 majority opinion in Crawford v. Washington. That decision held that out-of-court statements that are “testimonial” can’t be admitted into evidence unless the accused has an opportunity to confront the declarant.

In the Alabama case—Stuart v. Alabama from the Alabama Court of Criminal Appeals—the state introduced in evidence the results of Vanessa Stuart’s blood-alcohol test taken hours after her arrest. She was charged with negligent homicide and driving under the influence of alcohol. The state did not bring to the witness stand the analyst who performed the test, but a different analyst who, using the results of the test, tried to estimate what Stuart’s blood alcohol level was when she was driving.

“Through these steps, the state effectively denied Ms. Stuart the chance to confront the witness who supplied a foundational piece of evidence in her conviction,” Gorsuch wrote. “The engine of cross-examination was left unengaged, and the Sixth Amendment was violated.”

Gorsuch noted that “to be fair,” the court’s opinions in this area “have sown confusion in the courts across the country.” Alabama argued that it didn’t offer the test for the truth of what it said, only to provide the analyst-witness a basis for estimating Stuart’s blood alcohol level when she was driving. The state contended it was free to do so under a 2012 fractured Supreme Court decision. The state also claimed the confrontation right did not attach because the test report was not “testimonial.”

But Gorsuch wasn’t buying the state’s arguments.

First, he wrote, “Why would any prosecutor bother to offer in evidence the nontestifying analyst’s report in this case except to prove the truth of its assertions about the level of alcohol in Ms. Stuart’s blood at the time of the test? The whole point of the exercise was to establish—because of the report’s truth—a basis for the jury to credit the testifying expert’s estimation of Ms. Stuart’s blood-alcohol level hours earlier.”

And as for the nontestimonial argument, he said, “But however you slice it, a routine post-arrest forensic report like the one here must qualify as testimonial. There’s no question that Ms. Stuart was in custody when the government conducted its forensic test or that the report was prepared for the primary purpose of securing her conviction.”

Justice Sonia Sotomayor. Credit: Jason Doiy/ ALM

Gorsuch and Sotomayor would have granted review to offer lower courts “more clarity” in this area of the law.

Scalia used to say that he was one of the most pro-criminal defendant justices because of his interpretations of the confrontation clause and the jury’s fact-finding role. And although Gorsuch’s dissent seems to signal a similar concern with the confrontation clause, he is not generally on the side of criminal defendants and instead, often finds himself more comfortably aligned with Justices Clarence Thomas and Samuel Alito Jr.

What to make of Sotomayor’s joining of Gorsuch’s dissent? Sotomayor recently offered some thinking about her new colleagues.

“Conservative, liberal, those are political terms,” Sotomayor said in an interview with CNN’s David Axelrod. “Do I suspect that I might be dissenting a bit more? Possibly, but I still have two relatively new colleagues, one very new colleague, Brett Kavanaugh and Neil Gorsuch. And we’ve agreed in quite a few cases, we’ve disagreed in a bunch. But you know, let’s see.”


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