Hat tip to Crime and Consequences for noting Justice Sotomayor's statement regarding the denial of cert in Wrotten v. New York. The issue of the whether Maryland v. Craig is good law after Crawford is one that we have litigated occassionally (blogged about here). Perhaps it is one that the SCOTUS would be willing to hear in upcoming terms.
I just thought I'd post to remind practitioners about this ongoing issue. And don't forget to cite the Kansas Constitution Bill of Rights which provides the right for the accused "to meet the witness face to face." Given our "plain language" KSC, that provision might mean something in this debate.
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Also, ksa 22-3437 was recently amended to allow testimony via two-way interactive video, so a forensic lab technician won't have to testify in person (they're trying to get around Melendez-Diaz).
As Randall noted, this can be challenged under the "face to face" language in the KS Constitution, and you can argue that Maryland v. Craig should be overruled. But, you can also argue that Maryland v. Craig helps you.
In Craig, 497 U. S. at 850, the U.S. Supreme Court held that “a defendant’s right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial,” but “only where denial of such confrontation is necessary to further an important public policy.”
The use of the two-way video technology is clearly based on the cost of having the technician testify. (You can probably find some legislative testimony that says just that). I seriously doubt that cost is the type of "important public policy" that was contemplated by Maryland v. Craig.
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