On Monday January 11, 2010 the Supreme Court heard oral arguments in Briscoe v. Virginia. At issue are a set of facts very similar to the Melendez Diaz v. Massachusetts case decided last year. Whether the live testimony of a forensic analyst is necessary when the prosecution is submitting a lab report certificate prepared by them or if the prosecution is able to avoid the 6th amendment violation of the confrontation clause by providing the defense with an opportunity to call the analyst as a witness.
The Supreme Court set off a series of large cases with the 2004 Crawford v. Washington decision on the rights of the accused to confront witnesses against them. That case dealt with the spousal right against testifying against one another, and the hearsay implications as well. The right to confront witnesses and the extent of that is being explored with the recent Melendez Diaz ruling here in Massachusetts and now with Briscoe.
The Supreme Court protected an established right in their view, but provided an impractical end to the issue by implying that every chemical or forensic analysis that is done must accompany a technician’s testimony as a result. The backlog of cases and analysis that inevitably resulted is something Massachusetts is now struggling to deal with.
The major topic talked about with respect to Briscoe is the change in the lineup at the court since the Melendez decision (a 5-4 majority) and the fact that a member of that majority (Souter) has been replaced (with Sotomayor). Many are speculating that the possibility of a reversal exists. I’m not so optimistic, considering that 5 similar cases were rejected for cert (review) by the Supreme Court. The more likely result is that they wish to flesh out a more substantial path for the states to follow. Virginia’s current law places the onus on the defense to call the analyst in as part of their defense instead of forcing the state to place it in as part of its case in chief against the defendant. Given that they rejected so many other similar cases and chose this one to review it seems they’re looking for a more practical solution to the problem. However, during oral arguments Justice Scalia the author of the June opinion asked rhetorically “Why is this case here except as an opportunity to upset Melendez-Diaz?”
With that in mind, much of the focus on the argument shifted to what Newly appointed Justice Sotomayor had to say and where she seemed to lean in the arguments. She did not seem to show a clear preferance or side. Maybe in taking the case the court hoped to reverse itself while also providing a safety net which is a practical solution provided by Virginia if it does not overule it altogether?
Whether either situation is the case bears watching.
Attorney Ronald A. Sellon