Supreme Court Watch: Certiorari Granted In Briscoe v. Virginia: Confrontation Clause Case Set For 2010 Supreme Court Term

On June 25, 2009, in Melendez-Diaz v. Massachusetts the Supreme Court resolved that the Confrontation Clause proscription of testimonial hearsay requires that when a state presents a forensic lab report as evidence in a criminal trial it must make the analyst who prepared the report available for defense cross-examination. By granting certiorari in Briscoe, et al., v. Virginia (07-11191), the Court sets on its 2009 Term the question of whether the state can "avoid" this obligation "by providing ... the accused ... a right to call the analyst as his own witness” at trial.

In a 5 to 4 decision on June 25, 2009, the Supreme Court resolved a case that "involve[d] little more than the application of ... Crawford v. Washington, 541 U. S. 36." In Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527 (2009) (No. 07–591), the majority decided that the Sixth Amendment "does not permit the prosecution to prove its case via ex parte out-of-court affidavits." Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527 (2009). Four days later, the Court granted certiorari in a case presenting a next line of issues: can the state fulfill its obligation if it provides the defendant the right to call the analyst as the defendant's own witness? If the defendant chooses not to exercise this option of calling the analyst, does that relieve the state of the obligation to present the analyst for cross-examination?

State Proceedings In Briscoe, et al., v. Virginia

In Briscoe, the defendant was convicted on state distribution of cocaine charges. During his trial, a central issue concerned whether the substances the police seized from the defendant’s apartment and a car were cocaine, and if so, how much? To meet its burden of proof of the cocaine distribution charge the prosecutor proffered two certificates prepared by a forensic analyst at Virginia’s Department of Criminal Justice Services Forensic Division.

The certificate reported that the lab’s tests showed that the seized substances had large quantities of cocaine (36.578 grams attributed to the defendant and 60.5 grams to the co-defendant). The defendants objected to introduction of the certificates as a violation of the Sixth Amendment Confrontation Clause, but the trial judge admitted the lab certificates. The defendants decided not to call the lab analyst as their own witness at trial regarding the substance the state claimed was cocaine. The court convicted the defendant.

In its review, the state appellate court consolidated Briscoe’s case with a similar Appeal. The Virginia Supreme Court affirmed the conviction by a 4-3 vote in Magruder v. Commonwealth, 657 S.E.2d 113 (2008). The State Supreme Court found no error, even assuming that the lab certificates were testimonial. It found that the state statute that allowed the opponent of a lab report to call the lab analyst as the defendant’s own witness satisfied the Sixth Amendment’s Confrontation Clause:

“Because the procedure provided in [Va.] Code § 19.2-187 adequately protects a criminal defendant's rights under the Confrontation Clause and because the defendants in these appeals failed to utilize that procedure, we conclude that they waived the challenges under the Confrontation Clause to the admissibility of the certificates of analysis.”
Magruder v. Commonwealth, 657 S.E.2d 113 (2008) (footnote omitted).


The majority dismissed the defense contention that the statutory procedure improperly shifted the burden of producing evidence to the defense. It concluded that requiring a criminal defendant to call the forensic analyst in order to exercise his right to confront that witness was not impermissible under the Sixth Amendment.

Other Courts Split On Shifting The Lab Test Burden Requirement

Statutory schemes similar to that used by Virginia have been affirmed by other state high courts as in conformity with the Confrontation Clause. In the petition for certiorari, the petitioner cited a number of state analyses as supporting a finding that the accused has a right to subpoena the analyst who prepared a laboratory report. These cases construe the Confrontation Clause to allow the prosecution to introduce the report itself without presenting the analyst as a live trial witness, such as:

  • North Dakota: State v. Campbell, 719 N.W.2d 374, 378 (N.D. 2006) (applying N.D.C.C. § 19-03.1-37 that “defendants may subpoena the report's author,” and an indigent may subpoena a laboratory director or employee at no cost to himself: “Because neither [defendant] attempted to subpoena the forensic scientist as provided by statute, they have waived their ability to complain of a constitutional violation.”)
  • Tennessee: State v. Hughes, 713 S.W.2d 58, 62 (Tenn. 1986) (Under Tenn. C. § 55-10-410, “[T]he lab technician may be subpoenaed by the accused at the State's expense and called to the stand and cross examined as a hostile witness where the State does not elect to do so.”)
  • North Carolina: State v. Smith, 323 S.E.2d 316, 328 (N.C. 1984) (applying N.C.G.S. § 20-139.1 which provides that “the defendant is entitled to subpoena the analyst and examine him as an adverse witness, as on cross-examination”; “[f]ailure to summon the analyst results in a waiver of any right to examine the analyst and contest the findings”)

A number of other states reject the shifting burden scheme, finding that it does not conform with the Confrontation Clause. Among those states that take this position are:

  • Florida: State v. Belvin, 986 So. 2d 516 (Fl. 2008) (Even though Florida St. § 316.1934(5) gives a defendant the right to subpoena the breath test operator as an adverse witness at trial, it does not adequately preserve the defendant's Sixth Amendment right to confrontation, particularly because the burden of proof lies with the state, not the defendant.)
  • District of Columbia: Thomas v. United States, 914 A.2d 1 (D.C. 2006) (Lab report was testimonial, and the Confrontation Clause was violated; noting that D.C. Code § 48-905.06 provides that the defendant can supboena the chemist for examination but that the Sixth Amendment Confrontation Clause imposes the burden of production on the prosecution and not on the defense; if the accused was forced to call adverse witnesses, then “[u]ltimately the effect could be to blur the presumption of innocence and the principle that the burden of proof on the prosecution ‘never shifts throughout the trial.” )
  • Oregon: State v. Birchfield, 157 P.3d 216, 220 (Or. 2007) (“The right to meet an opposing witness face to face cannot be transformed into a duty to procure that opposing witness for trial. It is the state that seeks to adduce the evidence as to which the criminalist will testify. The defendant has a constitutional right to confront the proponent of that evidence, the criminalist. The legislature may require the defendant to assert that right or to design a procedure to determine whether the defendant agrees that a written report will suffice. But, to require that a defendant do more changes the right to insist that the state present evidence the ‘old-fashioned way’ into an obligation to procure a witness for the state.”)

Federal Courts & The Shifting Burden

In the federal courts, the process of requiring the government to present the witness and that the witness be subject to cross-examination is the model underlying the rules of criminal procedure. In review of petitions for habeas corpus after a conviction in state court, however, at least two circuits have rejected state schemes of shifting the burden of producing the hearsay declarant to the defendant:

  • Eighth Circuit: Schaal v. Gammon, 233 F.3d 1103, 1106-07 (8th Cir. 2000) (In review of district grant of habeas petition in case in which “[t]he State never called the child to testify on direct examination and Schaal, a defendant in a criminal case, cannot be expected to bear the burden of taking affirmative action to make the State's use of the videotape constitutional. . . . We agree with the District Court that this type of burden-shifting is impermissible and not sufficient to satisfy the Confrontation Clause.)
  • Fifth Circuit: Lowery v. Collins, 996 F.2d 770, 771-72 (5th Cir. 1993) (“[T]he Sixth Amendment is complied with when the prosecution calls the witness first, and then the defendant, for tactical or other reasons, voluntarily limits or chooses to forego cross-examination. The first step – the prosecution's initial call for the witness to testify – is crucial to the instant inquiry. Only when that is done does the failure of the defense to cross-examine the witness constitute a waiver.”)

Petition For Certiorari

With certiorari now granted, the petitions regarding the appropriateness of review may seem a curiosity. Moreover, the grant of certiorari in Briscoe is curious in light of dicta found in Melendez-Diaz. There, the Court specifically explained:

“Respondent asserts that we should find no Confrontation Clause violation in this case because petitioner had the ability to subpoena the analysts. But that power-whether pursuant to state law or the Compulsory Process Clause-is no substitute for the right of confrontation. Unlike the Confrontation Clause, those provisions are of no use to the defendant when the witness is unavailable or simply refuses to appear. Converting the prosecution’s duty under the Confrontation Clause into the defendant’s privilege under state law or the Compulsory Process Clause shifts the consequences of adverse-witness no-shows from the State to the accused. More fundamentally, the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court. Its value to the defendant is not replaced by a system in which the prosecution presents its evidence via ex parte affidavits and waits for the defendant to subpoena the affiants if he chooses.”
Melendez-Diaz, 557 U. S. at __ (citation omitted). This almost seems to answer the question asked in Briscoe v. Virginia – yet the Court took the case for review. The briefs addressing certiorari review focused on prudential concerns:

  • The Petition: The petitioner argues that there was a conflict among the courts on the question of whether the state could shift the burden to the defendant of calling the lab technician who prepared a certificate. The petitioner presented this question as “a broad[ ] one of immense significance.” “Whether a prosecutor may introduce an out-of-court testimonial statement while shifting to the accused the burden of presenting the maker of the statement as a live witness at trial,” would stand the Confrontation Clause on its head, the petitioner suggested. In addition, the petitioner’s analysis identified various procedural and strategic problems with a shift-burden scheme in terms of the presentation of the defense at trial.
  • Opposition To The Petition: In response, the state argued that certiorari was unwarranted until the Court had determined Melendez-Diaz. In any event, “requiring a defendant to provide notice that he wishes to have the analyst present for cross-examination, like the statutes requiring notice of an alibi or notice of the intent to explore the sexual history of the victim, is a constitutionally permissible measure,” the respondent assured the court. “The right of an accused to confront and cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” Thus, the state envisioned that review of the Virginia statute was unwarranted because the challenged procedure was a permissible and long-validated regulation of a defendant’s right to reasonably exercise his constitutional rights.

The 2010 Term And The Confrontation Clause

In deciding Crawford in 2004, the Court expressly left "for another day any effort to spell out a comprehensive definition of ‘testimonial’," even recognizing that "our refusal to articulate a comprehensive definition in this case will cause interim uncertainty." 541 U.S. at 68 n.10. The court suggested in Melendez-Diaz that its task in that case involved less filling out the definition of "testimonial" than it involved in that case a straight forward application of the Crawford doctrine. In taking Briscoe v. Virginia for its 2009 Term, the Court leaves for summer recess. But it also leaves observers in fits of speculation about what more could possibly be ahead in reshaping the Confrontation Clause.

More information on Melendez-Diaz v. Massachusetts is available on the Melendez-Diaz Resource Page.

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