Justice Ruth Bader Ginsburg’s Criminal Law Legacy

People across the country continue to mourn the death of United States Supreme Court Justice Ruth Bader Ginsburg, with a particular focus on her groundbreaking work on gender equality. GBH News host Henry Santoro spoke with Daniel Medwed, a law professor at Northeastern University and GBH News legal analyst, about Justice Ginsburg’s legacy and her influence on criminal law. The transcript below has been edited for clarity.

Henry Santoro: First of all, Daniel, what a tragedy. Here we discuss the death of SJC Chief Justice Ralph Gants last week and now Justice Ginsburg this week. Have you ever had the opportunity to meet her in person?

Daniel Medwed: I did, Henry. I had the pleasure of meeting her at an event in New York maybe 20 years ago. And like so many people, I was mesmerized by his genius, and found him so interesting coming from this small setting with his quiet affect. In fact, there was a bit of a delay as I absorbed the full power of his words from this very, very soft-spoken person. I’m not surprised that she’s become such an iconic figure for younger generations, given that she’s truly an American original – one of our greatest legal minds.

Santoro: She is obviously associated with a number of civil rights issues and her rulings in the area of ​​employment discrimination, abortion, health care and so on. Was she also known for her views on criminal law?

married: Well, I think so. I have to admit I’m a bit biased because it’s my field, but I think his contributions to criminal law are very significant and compelling, even if lesser known than his monumental contributions to gender equality, her work as an ACLU lawyer and her views on the court, which essentially paved the way for the passage in 2009 of the very important Lilly Ledbetter Fair Pay Act.

Perhaps my favorite part of Judge Ginsburg’s criminal law work concerns the confrontation clause. It is the provision of the Constitution that gives defendants the right to confront or cross-examine prosecution witnesses. And beginning around 2004, Judge Ginsburg, along with her friend and sometimes odd ideological bedfellow, Antonin Scalia, began charting this very robust and courageous course of confrontation clause law that made her very protective of defendants. and made it very difficult for prosecutors. to introduce out-of-court statements, so-called hearsay evidence, in these cases.

Santoro: Have you discussed his death with your students?

married: Yes a bit. We talked about it in class. Many students are absolutely devoid of its loss. So I took the opportunity in class yesterday, at least, to talk about it at some level of depth.

Santoro: Is there any particular opinion about Ginsburg’s showdown clause that stands out in your mind?

married: Yeah, so the one that comes to mind is a 2011 case called Bullcoming v. New Mexico. Here’s what happened: A man was charged with drunk driving, and the main evidence against him was a forensic lab report that his blood alcohol level was over the legal limit in New Mexico. The problem was that the analyst who had written this report was not available to testify at trial; he had been placed on administrative leave for an undisclosed reason. So the government sent a surrogate instead — someone else from the lab who could testify about the facility’s general procedures. The defense shouted at the confrontation clause [and that they] should have the right to cross-examine the analyst who wrote the report. Prosecutors said bullshit. Forensic analysts are just scribes. All they do is mechanically record test data; you don’t need to cross-examine them.

Judge Ginsburg absolutely eviscerated the prosecution’s argument, emphasizing how forensic analysts are essential cogs in the criminal justice machine and that defendants should be given the opportunity to cross-examine them. It was such an important notice, especially in Massachusetts, because it really came on the eve of some scandals from our crime labs in Jamaica Plain and Amherst.