Remand of the case two weeks after oral argument leaves unanswered several Confrontation Clause questions posed by Briscoe v. Virginia, 559 U. S. __ (2010) (per curiam).
Questions were first raised when the Supreme Court granted certiorari in Briscoe v. Virginia (07-11191). On June 25, 2009, the Supreme Court issued its five to four decision in Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527 (2009). Four days later, the Court decided to hear the Briscoe case. Some of the questions included:
- Why did the Court decide to hear a related Confrontation Clause case on the heels of issuing its significant decision in Melendez-Diaz?
- Did the Court seek to clarify the contours of meaningful confrontation? For example, is live testimony necessary to fulfill the obligation under the Confrontation Clause? Or does a state statute which permits introduction of a certificate of forensic analysis as substantive evidence and makes the analyst who completed the examination available for trial, at government expense, upon defense request for cross-examination satisfy the Constitution? Alternatively, does the state statute unconstitutionally shift the burden of producing evidence to the defense?
- Since the Melendez-Diaz majority recognized that states could adopt “notice-and-demand statutes,” which are “procedural rules governing objections” and the time in which objections must be made, see Melendez-Diaz, 557 U.S. __, 129 S. Ct. at 2541, would the Briscoe case provide an opportunity to clarify the contours of permissible statutes?
- Would the case provide a chance to consider what Justice Anthony Kennedy described in his dissent in Melendez-Diaz as the “crushing burden” on the nation’s crime labs as a result of the Melendez-Diaz decision?
- Would the Briscoe case provide a chance to reverse or modify the Melendez-Diaz opinion?
- After certiorari was granted, the state amended its statute to comport more closely with the notice and demand statutes noted with approval in Melendez-Diaz. See Va. Code Ann. § 19.2-187 (2010). Was Briscoe the best case to consider the next line of Confrontation Clause issues after this amendment?
- Another post-Melendez-Diaz occurrence involved the confirmation of new Justice Sonia Sotomayer following the retirement of Justice David Souter, who was in the narrow majority in Melendez-Diaz. What were her views on the Confrontation Clause? Would she be a new swing vote, tipping the balance on the Court?
None of these and other related questions will be answered in the near term. On Monday, January 25, 2010, just two weeks after the oral argument, the Court vacated the state court judgment and remanded “the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts, 557 U. S. ___ (2009).” Briscoe v. Virginia, 559 U. S. __ (2010) (per curiam).
The Crawford opinion, which established a new direction and framework of analysis for Confrontation Clause issues, explicitly left many unanswered questions concerning the boundaries of the Confrontation Right and the meaning of “testimonial” statements. See, e.g., Crawford v. Washington, 541 U.S. 36, 68 & n.10 (“We leave for another day any effort to spell out a comprehensive definition of ‘testimonial.’”; noting “that our refusal to articulate a comprehensive definition in this case will cause interim uncertainty”).
During the Briscoe oral argument, Justice Antonin Scalia, who authored the landmark decision in Crawford v. Washington, 541 U.S. 36 (2004), aptly asked, “Why is this case here except as an opportunity to upset Melendez-Diaz.” Briscoe Transcript, at 55:11-12.
While Melendez-Diaz has not been disturbed, at the end of the day perhaps Briscoe was not an ideal case to address these lingering Confrontation Clause issues. Other cases will be necessary to explain the meaning of “testimonial” statements, whether live testimony is a core attribute of contribution, and what constitutes meaningful confrontation.