You know things are getting weird at the Supreme Court when Justice Samuel Alito asks about tasting methamphetamine and marijuana.
But it makes sense in context.
That context is the Sixth Amendment to the Constitution, which gives criminal defendants the right to confront the witnesses against them. Wednesday’s high court hearing in Smith v. Arizona was the latest case about what that provision means in practice. The defendant Jason Smith is challenging his convictions because, at trial, the prosecution didn’t present the witness who analyzed the drugs but rather another expert who testified based on that other scientist’s work.
Which brings us to Alito’s drug-sampling remark. That arose during his questioning of a lawyer for Arizona. The justice observed that an expert’s opinion is worthless unless the facts they’re relying on are true. So given that the person who analyzed the drugs didn’t testify — and thus couldn’t be confronted directly — he asked the lawyer what evidence at trial showed that the substances were in fact meth and marijuana. The state’s lawyer noted that the evidence was in the courtroom for the jury, prompting a response from the GOP-appointed justice that got some laughs in the courtroom:
What good does that do when the — the jury would taste it or sample these … sample these drugs and see what they were?
“I should hope not,” Arizona’s lawyer replied. Alito is generally the most likely justice to side with the government in criminal cases, so it’s never a good sign for the state when he’s skeptical. To be sure, he wasn’t the only one who quizzed Arizona on its stance, but we’ll have to wait for the opinion, which should arrive by late June. Subscribe to the Deadline: Legal Newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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