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A limit on Confrontation rights?

The Supreme Court will hear oral argument at 11:30 a.m. Monday on Briscoe, et al., v. Virginia (07-11191).  Arguing for Mark A. Briscoe and Sheldon A. Cypress will be Richard D. Friedman, a law professor at the University of Michigan.  Virginia’s state Solicitor General, Stephen R. McCullough, will argue for Virginia, with 20 minutes allotted.  For the federal government, as amicus supporting Virginia, and allotted 10 minutes, will be Leondra R. Kruger, an assistant to the U.S. Solicitor General.  (Briefs and other documents in the case can be found at ScotusWiki, at this link.)


Less than seven months after the Supreme Court made one of the most controversial rulings in recent years on criminal law, Melendez-Diaz v. Massachusetts, the Justices have the option of reconsidering that decision — and, in fact, 26 states and the District of Columbia have urged that the decision be overruled outright.  In Briscoe, et al., v. Virginia, the Court at least will consider limiting the scope of the decision last June, which barred crime lab reports from being offered as criminal evidence unless a scientist who prepared such a report is available for questioning by the defense.  The specific issue now is whether the prosecution or defense must take the initiative to summon the scientist for questioning — a seemingly narrow issue, but one that defense lawyers who appealed the case argued could have a strong impact on the right won in Melendez-Diaz.


Since 2004, the Court has been actively exploring the meaning of the Sixth Amendment’s Confrontation Clause, guaranteeing an accused in a criminal trial the right to confront accusers.  The exploration began with the quite wide expansion of the Clause in Crawford v. Washington; the issue has been returning to the Court with some frequency since then.  None of the other sequels to Crawford, however, has been as rigorously challenged by prosecutors and law professors as has Melendez-Diaz, a 5-4 ruling June 25 that crossed the Court’s usual ideological lines.   Joined by the federal government’s own prosecutorial arm, the Justice Department, prosecutors from across the country are eager to persuade the Court at least to narrow that decision, saying it already is leading to a severe disruption of their criminal justice systems, especially in prosecuting illegal drugs and drunk-driving cases, but also in any case where physical evidence is at issue.

A case so recently decided by the Court, though, would not appear to be vulnerable to actual overruling, even though more than half the states and the District of Columbia have strenuously urged the Court to do so.  The Court normally does not change its mind that quickly, even on a hotly controversial question that had split the Justices deeply.  But the Court’s membership has changed since Melendez-Diaz was decided, and one of those in the majority, Justice David H. Souter, has retired, replaced now by a Justice many consider to be more prosecution-friendly than Souter was — Sonia Sotomayor, herself a former prosecutor.

It seems probable that the four dissenters in Melendez-Diaz provided necessary votes to hear the new case, involving two Virginians, Mark A. Briscoe and Sheldon A. Cypress, perhaps because of the very potential that case has to ease the burden that the dissenters contended was being thrust upon criminal prosecutors.

Melendez-Diaz made two things very clear: first, that crime lab reports prepared for use in criminal prosecutions were generally the kind of “testimony” that implicates the Confrontation Clause, and, second, that those reports could not be used at trial unless the lab technician or scientist who prepared it was available for cross-examination.  Beyond that, the meaning of the decision is sharply contested by the two sides in the controversy.  Prosecutors insist that the Court laid down no specific rule on how or when the scientist was to be made available, so the defense should have to do so, while defense lawyers insist that the Court has already imposed that burden directly on the prosecution in order to make the confrontation right meaningful.

That specific dispute reached the Court in the Briscoe case because Virginia, like some other states, has a law that shifts to the defense lawyer the task of demanding the appearance at trial of the lab scientist or of another witness capable of discussing the report that the prosecution intends to offer as evidence. Prosecutors must give notice, before trial, of the plan to offer that evidence. Virginia’s law specifies that the prosecution can offer such a report without putting on the stand a witness to discuss it.  The law goes on to give the defense the right to call the scientist as a defense witness. The state must pay the cost of calling such a witness.

Virginia passed the laws in 1976, with the aim of reducing the time that lab personnel were spending in court, and thus allowing them to do more work in the crime lab — facilities that often have significant backlogs.

The law was put into play in the cases of two individuals charged with and convicted of trafficking in cocaine.  Police in Alexandria, Va., carried out a search warrant in Mark Briscoe’s apartment, finding cocaine and drug paraphernalia.  The seized drugs were tested by a state forensic scientist, to determine the kind of drug it was and its weight.  A scientist prepared two certificates about the cocaine’s characteristics, and prosecutors indicated they would use those at trial.  Briscoe’s lawyers did not demand before trial that the scientist appear at trial.

At the trial itself, the certificates were offered, and allowed as evidence over the defense objection that they amounted to testimony under the precedent in Crawford v. Washington, so the scientist had to appear to discuss them.  The trial judge rejected the challenge, finding the state law went far enough to protect Briscoe’s right to confrontation.  He was convicted and sentenced to 20 years in prison, but will he required to serve only five years and eight months of that term.

In Sheldon Cypress’s case, he was a passenger in a car stopped by police in Chesapeake, Va., for having improperly tinted windows.  At the driver’s wheel was Cypress’s cousin, who agreed to let police search the car.  Marijuana and crack cocaine was found in the carat during the search.  A forensic scientist determined that the crack was, indeed, the illegal substance, and prepared a certificate saying so.  At Cypress’s drug trafficking trial, the same sequence of events occurred as in Briscoe’s case, with the defense demanding that the scientist appear, losing on that point, and ultimately a guilty verdict.  Cypress was sentenced to 15 years in prison, but will be required to serve only five years of the term.   The Virginia Supreme Court upheld both convictions, and found no violation of Confrontation rights.  That Clause in the Sixth Amendment, the state’s highest court ruled, does not protect an accused from having to take steps to assert the right to confront the scientist.

Petition for Certiorari

Defense lawyers appealed the combined case to the Supreme Court in May 2008, about two months after the Court had granted review in Melendez-Diaz.  The petition raised the single question of whether a state could satisfy the Confrontation Clause, regarding crime lab reports, by giving the accused a chance to call the scientist as his own witness.  The Court sat on the case without action, until four days after deciding Melendez-Diaz, then granted review instead of sending it back to Virginia courts to apply Melendez-Diaz.

In the Briscoe petition, the defense lawyers argued that there was a deep split among state courts on the constitutional issue. At least three states’ highest courts, besides Virginia’s, have ruled that a defense right to subpoena a lab chemist who prepared a report on evidence allows the prosecution to offer the report without presenting the analyst for live testimony, the petition noted.  Several other state high courts reject that view, the petition said.   The petition contended that, if the Virginia approach was allowed, “the immediate effect will be virtually to nullify the confrontation right in a very large and significant body of cases.  The ultimate effect may be not only to impair the confrontation right in general but to alter fundamentally the traditional method by which criminal cases in this nation are tried.”

The state of Virginia, opposing review, contended that it would be premature for the Court to review the case until it had decided Melendez-Diaz.  It would be time enough, after that, to take up the question of the validity of state laws on how to deal with lab reports and their authors, the response asserted.  However, it also argued that the two men in the cases had waived their Confrontation right by failing to demand, before trial, that the lab scientist be called to testify.  And, the state argued that the petition had misinterpreted the Virginia Supreme Court ruling in the case.

The Court granted review on the last day of the prior Term, June 29.  After briefing, the case was scheduled for oral argument on Jan. 11.

Merits Briefs

One of the curious facets of the Briscoe case is that there is language in the Court’s opinion in the Melendez-Diaz opinion that seemed to answer the question that is now before the Court.  And, of course, the defense lawyers in the case bring that out early in their merits brief.  In the course of analyzing a right to live testimony of a lab chemist, the brief said, “the Court also explicitly held that the accused’s ‘ability to subpoena the analysts … whether pursuant to state law or the Compulsory Process Clause — is no substitute for the right of confrontation.’ “  The quoted portion is from Melendez-Diaz.  Thus, the merits brief’s first point is that Briscoe is a “very simple” case: Virginia imposes a subpoena obligation on the defense that is “blatantly unconstitutional.”

The brief then went on to draw a point-by-point comparison between a  “Confrontation Scenario” and a “Subpoena Scenario”with each point stressing what it costs in trial fairness in the latter scenario compared to the former.  For example: “In the Confrontation Scenario, defense examination of the technician will come in the middle of the prosecution’s case.  In the Subpoena Scenarior, by contrast, assuming the defense presents other evidence, it must disrupt its own case if it wishes to examine the technician, and give the prosecution an opportunity to examine a witness friendly to it in the middle of the defense case.”

That comparison and the others, the brief summed up, shows that “subpoena schemes like Virginia’s work a fundamental transformation in traditional criminal procedure within their scope of application.  The effect is to turn the heart of the trial into a presentation of affidavits.”  Elsewhere in the brief, it elaborated: “The door would be open to a fundamental alternation of the centuries-old procedure of the criminal trial: Prosecutors could introduce affidavits or video-taped statements of witnesses and leave it to the defense to bring to the trial such of the prosecution witnesses as they dared to.”  One clear consequence, it argued, would be to discourage defense efforts to test the testimony of lab technicians whose scientific conclusions are being used as incriminating evidence.

The Briscoe brief also argued that, if the Virginia “subpoena scheme” is allowed to stand under the Confrontation Clause, there would be no way to limit its effects to crime lab reports or certificates.  “There is no limit at all on the type of statement to which the [subpoena] procedure might be applied,’ it argued.

The state of Virginia’s merits brief, seemingly shaped mainly in response to the defense argument that Virginia’s law is a “subpoena statute” that puts the burden on the defense to summon a lab expert as its own witness, put its initial focus on a rebuttal of that argument. The state’s Supreme Court, it argued, had interpreted the state law so that all that a defense lawyer needs to do is to demand, before trial, that the prosecutor produce the technician for trial.  “If the prosecutor fails to produce the analyst at trial based on such a demand, Virginia case law makes clear, the certificate of analysis is inadmissible,” according to the state.

If the analyst is produced by the prosecution, upon demand, the state contended, it would not necessarily require the defense to call the analyst as part of the defense case.  “Most prosecutors, for tactical reasons, and most trial courts, to diffuse a possible basis for reversal on an unsettled legal issue, will see to it that (1) the analyst is called as part of the prosecution’s case-in-chief and (2) that the certificate of analysis is introduced into evidence after the analyst has testified.”

Moreover, the state continued, there is nothing in the Confrontation Clause’s actual wording, or its history, that requires a specific sequence in which witnesses may be called at a criminal trial, nor anything that specifies at what point during the trial an exhibit is introduced.  If there is any problem constitutionally with a requirement that the defense call a witness as adverse during the defense side of the trial, the state brief added, that is a matter for consideration under the Due Process Clause, and no due process issue was raised in the Briscoe petition.

Amicus Briefs

Twenty-six states and the District of Columbia, in a brief mainly put together by the Indiana attorney general, is primarily a strong complaint about Melendez-Diaz.  While it argued in the alternative either to limit that ruling or to overrule it, the strongest thrust seemed to be toward getting the decision scuttled altogether.  The brief thus opened this way: “Melendez-Diaz was decided only a few months ago, but already data and anecdotal evidence are demonstrating an overwhelming negative impact on drug prosecutions in some states.  Prosecutors are negotiating pleas to lesser charges or dropping drug prosecutions altogether because states do not have enough laboratory analysts and other resources to provide a witness in every case.”

Even if forensic test results are sound or even unassailable, the states contended, they may not be offered further in drug prosecutions, in particular, “because state criminal justice systems will be overwhelmed by the need to  produce in every case the very crime-lab technicians who actually tested the evidence.”  Much of the time, it said, defense lawyers have no quarrel with lab results.  But, if they are allowed to translate the offering of a lab report into a command for the prosecution to produce the technician, the states asserted, defense lawyers will “game the system.”

If the Court is not prepared to reconsider Melendez-Diaz in a fundamental way, those states went on, it should at least allow states to find ways to limit its burden, such as by permitting laws like Virginia’s “notice-and-demand” law.  “At the very least,” it suggested, “states may require defendants to provide timely pretrial notice of their intent to demand face-to-face confrontation of drug analysts.”

The federal Justice Department, arguing that the outcome of the case influences not only prosecutions in the federal enclave of the District of Columbia (which has a law similar to Virginia’s), but also in the federal criminal justice system in general, sided with the state of Virginia.  The main focus of its amicus brief is on the argument, also advanced in the Virginia brief, that the Confrontation Clause does not dictate the sequencing of testimony in a trial.  A right to cross-examine a lab chemist, without more, is sufficient even if there is no guarantee that the prosecution will put the chemist on the stand during its own case-in-chief.  “A state may have valid reasons for deviating from the traditional order of proof,” it argued.

If the Confrontation Clause were read to impose such a case-in-chief requirement, the Department contended, there would be “substantial costs.”  Defendants who have no intent of challenging the lab results themselves, it said, would be “free to demand the analyst’s appearance simply to test the government’s ability to produce the analyst at trial.”  That could result in needless expense to state budgets, it added.

Briscoe and Cypress draw the amicus support of public defenders in the District of Columbia, arguing, among other points, that “the sky has not fallen in those jurisdictions that require the prosecution to present the live testimony of a forensic analyst if a defendant so desires.”  In those places, “the criminal justice system continues to function,” it said.


For obvious reasons, Court observers will inevitably focus on the reaction of Justice Sotomayor when this case is heard.  Given the lineup in the Melendez-Diaz decision, it would appear that she may well hold the deciding vote.  The result in that case was supported by Justices Ruth Bader Ginsburg, Antonin Scalia (the author for the majority), John Paul Stevens and Clarence Thomas.  In dissent, with author Justice Anthony M. Kennedy, were Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., and Stephen G. Breyer.  Each combination of Justices appeared to be firmly dug into its position.

The key to Sotomayor’s vote may well be her perception of whether Melendez-Diaz was rightly decided.  While it may give her pause to provide a fifth and deciding vote to overrule a major precedent within a few months after its declaration, the dissenters in the prior ruling may well try to persuade her that, if the decision is fundamentally flawed. as they have said, the sooner it is cast aside, the better.

If, on the other hand, she is not particularly troubled by it, in a real-world sense, the issue before her may be seen to be roughly the same as the one confronting the four Justices who remain from the Melendez-Diaz majority — that is, will the core ruling in Melendez-Diaz be undermined by the Virginia approach?  How they resolve that may well depend upon whether they see the sequencing of witness testimony in a criminal trial as crucial to the Confrontation Clause (as Briscoe and Cypress argue) or as beside the point constitutionally (as Virginia and the Justice Department contend).  The merits briefing on both sides of the case has gone far to make that the deciding issue.

In analyzing how the case may come out, it would be very helpful to know who among the Justices voted to hear this case and why the Court as a whole did not follow the more common practice of sending related cases back to lower courts to reconsider after the lead ruling has come out.  No such information will be forthcoming, however.  It is, indeed, puzzling that the Court would opt to return so quickly to a variation of a brand-new ruling, with no time to see how, in fact, it may have influenced criminal trial practice.  Someone was eager to grasp an early opportunity, perhaps to ameliorate the practical effects of Melendez-Diaz, or at least to think about the fundamental correctness of it a little more fully before leaving it intact.

This is one of those cases where the flow of oral argument may well reveal what hidden agendas may be at work.

If the Court finds itself having difficulty reaching a majority position, there is a way out: Virginia has since changed its law dealing with lab reports and scientists’ testimony, and the Court could opt to return the Briscoe case to Virginia courts to see how it would fare under the revised law.