THE PRICE OF JUSTICE

The 6th Amendment to the Constitution guarantees a criminal defendant
the right "to be confronted with the witnesses against him." In June,
the Supreme Court adapted that principle to the age of "CSI" by
requiring prosecutors who use laboratory reports to call the experts
who prepared them so that they can be cross-examined by the defense.

Now, after exaggerated complaints by some prosecutors, the court will
revisit the issue in arguments on Monday. It should decline the
invitation to rein in or reverse its ruling. Not for the first time, a
court decision has forced prosecutors to change the way they do
business and incur additional costs. And rightly so; the court
shouldn't put a price tag on the exercise of a fundamental
constitutional right.

In its 5-4 decision in June, in a drug case from Massachusetts,
Justice Antonin Scalia (joined by fellow conservative Clarence Thomas
and three liberal justices) came to the convincing conclusion that
laboratory analysts are "witnesses," because their reports could lead
to a defendant's conviction. Now the court will review a decision of
the Virginia Supreme Court that would weaken the new rule. The state
court held that there is no violation of a defendant's rights as long
as the laboratory expert can be called as a witness when the defense
is making its case.

This might seem a distinction without a difference. But lawyers for
two men convicted of cocaine offenses based on laboratory analysis
argue that cross-examination during the prosecutor's case is likely to
have a greater impact than putting experts on the stand during the
defense's case. That practice also undermines the principle that the
burden of proof is on the prosecution, not the defense.

Taking their cue from the dissenters in June's decision, 26 state
attorneys general have told the Supreme Court that requiring
technicians to appear as witnesses as part of the prosecution's case -
instead of appearing only when requested by the defense - is
inordinately costly and already is having "an overwhelming negative
impact on drug prosecutions." But the attorneys general concede that
they're relying partly on "anecdotal evidence."

It's too early to judge the financial costs of a decision that is
little more than 6 months old. But cost isn't the issue. At a time
when television crime dramas suggest that forensic testing is
infallible, jurors are likely to give prosecutors the benefit of the
doubt when they introduce a scientific report whose author can't be
cross-examined about the care with which a test was conducted. When it
reviews the Virginia ruling, the high court should render an opinion
that says, in effect, "We were right the first time."