In State v. Liu, a 5-4 majority on the Washington Suprme Court declared the the Confrontation Clause of the Sixth Amendment to the U.S. Constitution does not require that DNA tests or other hard to decipher scientific tests be presented in court by the technician who conducted the test.  These tests are not inculpatory because a juror would not understand how the data bears on the guilt or innocence of the defendant without the testimony of an expert witness.  Therefore these complicated reports are not “witness[es] against” the defendant and need not be available for confrontation by the defendant.  While the U.S. Supreme Court’s decision in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) might suggest otherwise, the Washington Court determined that the five Justice majority who signed that opinion was not really a majority because Justice Thomas also wrote an idiosyncratic concurrence. The Washington Court started counting five Supreme Court Justice signatures, but stopped at four.
Continue Reading Washington Court Starts to Count to Five, Stops at Four

At issue in State vs. Byrd is whether a police officer violated federal and state privacy rights by searching a defendant’s purse incident to arrest after the defendant was secured in a police car and the purse was left on the ground outside the vehicle.  The Washington Supreme Court determined that the search did not violate either the United States or Washington Constitutions because the purse was part of the defendant’s person and therefore subject to warrantless search incident to a lawful arrest.

Four justices dissented, arguing the search violated state constitutional protections.  Justice Gonzales concurred with the majority, but wrote separately to suggest the search was invalid because the officer lacked probable cause to make the arrest itself.
Continue Reading A Purse Is Part of a Person, Even When the Person is Locked in a Police Car and the Purse is Not