Richard Friedman has these thoughts in response to Mark Dwyer’s post earlier today:
Mark Dwyer’s worry about asymmetry seems misguided to me. The criminal justice system is not symmetrical. The prosecution has some advantages – such as the ability to convene a grand jury and compel pre-trial testimony – and the defense has other advantages, among them the presumption of innocence, a high standard of persuasion, and various constitutional rights that protect the individual against the state, including the confrontation right. See generally H. Richard Uviller, The Tilted Playing Field: Is Criminal Justice Unfair? (1999).
I understand that life is made more difficult for prosecutors than it has been now that the Supreme Court is insisting that the confrontation right be interpreted with genuine force, but that hardly seems grounds for complaint. The right is the right to be confronted with the adverse witnesses, witnesses are those who give testimony, and therefore the right prevents the prosecution from securing a conviction with the help of a statement that is testimonial in nature but that was made without the accused having had an opportunity for confrontation. That seems pretty simple and straightforward, even inevitable once you focus on it.
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