The right to present a defense

In re-reading the recent Supreme Court of the U.S. decision Holmes v. South Carolina, I think it may prove useful for Massachusetts criminal defense lawyers, even though it is a South Carolina capital case. (It is also Alito's first opinion. The cynic in me did not expect him to start out of the box by overturning a death sentence.) This is a case that, coupled with Crawford v. Washington, strongly reinforces the Sixth Amendment rights to present a defense and of confrontation.

Holmes is a case in which the defense attempted to present evidence that a third party — Jimmy White — had committed the killing for which he was charged. The evidence regarded confessions that White allegedly made after the killing, and other evidence that may or may not have corroborated or supported that confession. The trial judge found that the forensic evidence against Holmes was very strong, and that the evidence that White actually killed the victim was not strong enough for a jury to hear it.

At oral argument before the Supreme Court, Holmes’s attorney, John H. Blume said that South Carolina places too high a burden on defendants who wish to present evidence that another person committed the crime with which they are charged. Blume is a law professor at Cornell University. South Carolina law required Holmes to show that third-party evidence would raise a "reasonable inference or presumption" that he was innocent. Blume argued that South Carolina Supreme Court decision in Holmes's case would require him to prove that White committed the killing beyond a reasonable doubt.
The “reasonable inference” standard is a lower threshold, he argued, and allows juries to take the leading role in determining which facts are and which aren’t credible.
He added that the judge should not consider the strength of the prosecution's evidence against the defendant in determining whether to admit evidence of third-party guilt. Judges, he said, should look at the defense’s third-party evidence solely on its own merits.

“Are you saying you cannot consider the strength of the prosecution’s case at all in determining whether to allow third-party evidence?” asked Justice Antonin Scalia.

“Yes,” said Blume. “It’s not necessary for a ruling in our favor in this case.”

“How can you tell whether it raises a reasonable inference in a vacuum without regard to the evidence on the other said?” inquired Chief Justice John Roberts.

Blume replied that it was up to juries, not judges to decide the credibility of such a defense.

The Sixth Amendment right to present a defense is real.

A last interesting note, Alito barely mentions that this is a death case.

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