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Analysis: Is Melendez-Diaz already endangered?

(NOTE: This post is an updated and modified version of a post that appeared here earlier this afternoon about the new Briscoe case.)


A fascinating possibility emerged Monday afternoon as the Supreme Court closed its Term: Judge Sonia Sotomayor, if confirmed as a Justice, may hold the deciding vote on the future of a controversial ruling that the present Court issued just last Thursday: the ruling in  Melendez-Diaz v. Massachusetts (07-591).  A strongly worded dissent in that case made it clear that four Justices would not soon be reconciled to that decision — a ruling that they argued would result in “a distortion of the criminal justice system.”

The ruling, made under the Constitution’s Confrontation Clause, requires the prosecution, if it plans to present a lab report as evidence in a criminal trial, to make the analyst who prepared it available for on-demand cross-examination by defense counsel. The decision came on a 5-4 vote.

If it were possible to pick up a fifth vote, could the dissenters from that case then lead the Court to reconsider — or least narrow considerably — the decision in Melendez-Diaz?  Perhaps; one of the five in the majority was Justice David H. Souter, who retired on Monday.  There is, it would seem, at least a chance that his designated successor, Judge Sotomayor, would not be prepared to embrace Melendez-Diaz, at least without some restriction on its scope; she has a record on criminal law issues that appears to be somewhat more prosecution-oriented than Justice Souter’s has been.

This is speculation, of course, but there is little else to suggest why the Court announced Monday that, next Term, it will review the case of Briscoe, et al., v. Virginia (07-11191).  Here is the question raised in the Briscoe petition, filed in May of last year by University of Michigan law professor Richard D. Friedman:

“If a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the state avoid violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness?”

If one reads the majority opinion in Melendez-Diaz, the Court appears to have decided that issue already: it is not enough, the Court said last week, to allow the accused to call the lab technician as a defense witness; the prosecution must have the technician available for cross-examination, if the accused wishes to invoke that right under the Sixth Amendment.

The Court clearly had been holding the Briscoe case until it decided Melendez-Diaz, and then, according to the electronic docket, scheduled it for consideration at the final Conference Monday, in the wake of Melendez-Diaz.  If normal procedures had been followed, Justice Antonin Scalia, the author of the Melendez-Diaz, would have prepared a memo on what to do with Briscoe — ordinarily, recommending that it simply be denied, or that it be vacated and sent back for reconsideration.  Indeed, the reconsideration alternative was ordered by the Court in five other cases that the Court had been holding for Melendez-Diaz.

Instead, the Court — or at least four Justices — voted to grant review in Briscoe, and set the Court on the path to full review next Term.  It would be no surprise whatsoever if the state of Virginia — or some of the amici in support — would use Justice Anthony M. Kennedy’s rhetoric from the dissent last Thursday to assail Melendez-Diaz, and to suggest that, if it is not to be overruled outright, it should be made easier to get around — as in requiring the accused’s lawyer to summon the technician to the stand as his own witness.

The Virginia law that is at issue in the case requires an accused to call as a defense witness the technician who prepared a lab report that is being used as evidence supporting guilt. The state Supreme Court ruled that, if an accused does not follow that procedure, he surrenders his right to confront and cross-examine the report’s author.  The state court ruling can be found here. Cert papers are available here.

The petition was granted in the second round of the Court’s orders Monday, disposing of remaining cases before the summer recess began. This new group of orders is available here.

It is a rare thing, of course, for the Court to reconsider a decision so soon after it has been decided.  But it is not unprecedented, and the rhetorical and logical assertiveness of the Melendez-Diaz dissent certainly raises the chance that the decision’s life as a precedent, at least as it fully emerged, may be shortened.

Along with Justices Scalia and Souter, the majority in Melendez-Diaz included Justices Ruth Bader Ginsburg, John Paul Stevens and Clarence Thomas.  Joining Kennedy in dissent were Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., and Stephen G. Breyer.