[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF; merit briefs] Wednesday in two cases: one regarding the extent of immunity for a federal official and another regarding the Sixth Amendment Confrontation Clause. In Ashcroft v. Al-Kidd [oral arguments transcript, PDF; JURIST report], former US attorney general John Ashcroft [JURIST news archive], appealed the decision of the US Court of Appeals for the Ninth Circuit that absolute and qualified [AELE backgrounders] immunity do not shield him from suit alleging that he utilized a material witness warrant [18 USC § 3144 text] as a pretext to investigate and detain an individual whom the government never planned to call as a witness. Counsel for Ashcroft argue that the appellate court’s ruling is contrary to precedent that states that intent plays no role in finding that absolute immunity applies to traditional prosecutorial functions, such as issuing material witness warrants. Petitioner also asserts that, regardless of the finding on absolute immunity, qualified immunity protects officials unless their actions violate constitutional rights, which Ashcroft argues does not occur by using a material witness warrant in a pretextual manner. Counsel for respondent, an American citizen who was detained pursuant to a material witness warrant later found to be factually inaccurate, argue that qualified immunity does not apply because the detention violated al-Kidd’s Fourth Amendment [text] rights. Respondent further argues that absolute immunity does not protect those who would use the material witness warrant to investigate an individual, and that the attorney general should not be permitted to claim greater immunity than the FBI agents that carried out his instructions. During argument, counsel for al-Kidd, when questioned whether anytime someone held under a material witness warrant was not called to testify, that person could bring suit, replied in the negative, suggesting that an allegation would need to contain more than a bare allegation, and that “I think that’s what we have done.”

In Bullcoming v. New Mexico [oral arguments transcript, PDF], the court will decide whether the Confrontation Clause of the Sixth Amendment [Cornell LII backgrounder] permits the prosecution to introduce testimonial statements of a nontestifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements. Petitioner Donald Bullcoming, convicted in state court of driving while intoxicated, appealed the New Mexico Supreme Court decision holding that a forensic supervisor can testify in court as to the analysis and report of a technician who did not testify. Counsel for Bullcoming relies on the Supreme Court’s recent decision in Melendez-Diaz v. Massachusetts [JURIST report], which held that a forensic analyst’s report is “testimonial evidence” and thus the analyst is subject to cross-examination. Counsel for respondent argue that the forensic test was performed by a machine, distinguishing Melendez-Diaz, and that because a witness with knowledge of laboratory procedure and the functioning of the machine was provided, there is no constitutional violation. During argument, the justices repeatedly questioned counsel for New Mexico regarding their assertion that there is a difference between an affidavit offered by an analyst, as in Melendez-Diaz, and a purely machine-produced report. Justice Sonia Sotomayor, focusing on the certification of both documents, pressed counsel as to how they could be considered distinguishable, saying, “I’m sorry, could you tell me what that means? Why is it different than the affidavit? It’s certified, and my understanding of the dictionary meaning of certification is that that’s an attestation as to the truth of the statements contained therein. That’s the common definition.” Justice Antonin Scalia, focusing on the fact that the analyst had been placed on leave without pay during the trial, stated perhaps the most important reason why the defendant should have been permitted to cross examine the analyst, “Does the defense know why it was leave without pay? Could the defense have found out in cross-examination that the reason he was leave without pay because he was—had shown himself to be incompetent, and they were in the process of firing him? I don’t know whether that’s true, but wouldn’t that be important to the defense?”