Federal Evidence Review

Over a year ago the Supreme Court heard oral arguments on the contours of “testimonial” statements under the Sixth Amendment Confrontation Clause. See Supreme Court Watch: Supreme Court Confrontation Clause Oral Argument. Last June, the Court issued its most recent Confrontation Clause opinion in the five to four decision in Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527 (2009). The Court held that certificates of forensic analysis are “testimonial,” and therefore “the Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits.” Melendez-Diaz, 557 U.S. at __. However, on the same day, the Court also granted certiorari review in Briscoe, et al., v. Virginia (07-11191), suggesting its interest in further clarifying its Confrontation Clause analysis.

On Monday, January 11, 2009, the Supreme Court will hear oral argument in the Briscoe case, which is expected to further illuminate the scope and parameters of the Confrontation Clause in the wake of the landmark 2004 decision in Crawford v. Washington, 541 U. S. 36 (2004). The case presents another variation on the Confrontation Clause landscape. The Briscoe case probes whether there is sufficient confrontation when a prosecutor introduces a certificate of a forensic lab report as evidence in a criminal trial without live testimony based on a state procedure which requires the analyst who prepared the report be available for defense cross-examination upon request, rather than requiring the government affirmatively to call the witness to testify at trial. Does this procedure provide a sufficient opportunity for confrontation?

Another key question is the impact of Justice Sonia Sotomayer’s recent ascension to the Court in the place of Justice David Souter, who was in the narrow majority in Melendez-Diaz. Will the pending decision upset the five to four ruling in Melendez-Diaz? Or will the case have a broader reach and revise the direction of the Crawford Confrontation Clause analysis?

Significance of Briscoe v. Virginia

The specific question presented in Brisco is:

“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?”

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The Federal Evidence Blog previously noted that this query addresses the “next line of issues” after Crawford v. Washington and Melendez-Diaz v. Massachusetts. Specifically, can the prosecution fulfill its Confrontation Clause obligation without calling the analyst witness to testify after providing notice and an opportunity to the defendant to call the analyst for cross-examination? If the defendant chooses not to exercise this option of calling the analyst, does that relieve the government of the obligation to call and present the analyst for cross-examination? See Supreme Court Watch: Certiorari Granted In Briscoe v. Virginia: Confrontation Clause Case Set For 2010 Supreme Court Term.

Contrast Notice-And-Demand Statutes

The Melendez-Diaz majority looked favorably on “notice-and-demand statutes” which “require the prosecution to provide notice to the defendant of its intent to use an analyst’s report as evidence at trial, after which the defendant is given a period of time to object to the admission of the evidence absent the analyst taking the stand at trial.” According to the majority, these statutes do not shift the burden to the defendant. Instead, they constitute “procedural rules governing objections” and the time in which objections must be made. Melendez-Diaz, 275 Va. 283 (2008), 129 S. Ct. at 2541. Ironically, after the Melendez-Diaz decision, Virginia amended its prior statute on presentation of lab analysis evidence to comport with the “notice-and-demand statutes” noted in Melendez-Diaz. See Va. Code Ann. § 19.2-187 (2010).

The amendment of the statute that Briscoe challenged could be a concern during oral argument as the petitioner attempts to explain the necessity for the court to weigh in on the issue. To the extent the new statute presents a different procedure more closely tied to that approved by Melendez-Dias, there is less reason for the court to interfear in matter at all and leave the issue to be addressed again by the Virginia Supreme Court. well. If the alleged constitutional infirmity

Background

In Briscoe the defendants were convicted on state distribution of cocaine charges. At trial, the central issue became whether the substances the police seized in the defendant’s apartment and car were cocaine? If so, then what was the quantity? To meet its burden of proof on these issues, the prosecutor presented two Virginia Department of Criminal Justice Forensic certificates (as to identity and amount) which was prepared by a forensic analyst at the state’s criminal lab.

In a companion case raising similar issues, defendant Cypress was a passenger in a car that was searched by police. The officers found a plastic bag containing a white substance at the location where the defendant had been sitting when seen in the car. Police suspected the substance was a controlled substance, which was later confirmed when the state forensic lab identified it as 60.5 grams of crack cocaine. At Cypress's trial for possession of cocaine with intent to distribute, the prosecutor sought to prove the contents of the bag was cocaine, using a certificate of analysis with the lab results. This certificate was signed by the analyst who conducted the test and it included an attestation by the technician who performed the test. Defendant Cypress, as did defendant Briscoe, insisted that the prosecution produce the lab technician who prepared the certificate appear at trial. The trial court denied the challenge and the trial court entered judgment that the defendant was guilty of drug trafficking.

The Exhibit And Witnesses In Question

In review by the State Supreme Court of both Briscoe's and Cypress's appeals, the convictions were affirmed and the defendants' Confrontation Clause arguments found unpesuasive. The Virginia Supreme Court determined that the statute regarding presentation of the lab evidence by certificate was simply a routine procedure governing how a defendant must raise his right to confront the lab technician responsible for the report. Magruder v. Commonwealth, 657 S.E.2d 113 (2008).

In defendant Briscoe's case, the certificates that were provided three weeks before trial. The certificates reported that the lab’s tests showed that the seized substances had large quantities of cocaine (36.578 grams attributed to the Briscoe and 60.5 grams to defendant Cypress). 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 were convicted after they decided not to call the lab analyst as their own witness at trial regarding the substance the state claimed was cocaine.

In the companion case of defedant Cypress, the prosecution attempted to admit the analyst's certificate of analysis. The defendant objected but the trial court admitted the evidence under the Virginia statute. At his trial, the defendant did not call the forensic analyst and presented no other evidence. After his conviction, the defendant appealed on Confrontation grounds, which the state court of appeals rejected because "a certificate of analysis constitutes testimonial evidence under Crawford, a defendant’s confrontation rights are nonetheless protected by the procedures provided by Code §§ 19.2-187 and 19.2-187.1.” The Court of Appeals, however, held that Cypress waived his right to confront the forensic analyst who prepared thecertificate.

Virginia Confrontation Clause Assessment

The Virginia appellate court consolidated Briscoe’s case with the similar appeal of Cypress and magruder. The Virginia Supreme Court affirmed the convictions in a four to three vote. See Magruder v. Commonwealth, 657 S.E.2d 113 (2008). There was no error, explained the state Supreme Court, even if the lab certificates were testimonial. Under a state statute (Va. Code § 19.2-187), an opponent of a lab report could call the lab analyst as the defendant’s own witness, which was sufficient to satisfy the Sixth Amendment’s Confrontation Clause. As the court reasoned, the procedure “adequately protect[ed] a criminal defendant’s rights under the Confrontation Clause.” Since the defense failed to use this procedure, they “waived the challenges under the Confrontation Clause to the admissibility of the certificates of analysis.” Magruder, 657 S.E.2d at 289 (footnote omitted). The Virginia Supreme Court majority dismissed the contention that the procedure unconstitutionally shifted the burden of producing evidence to the defense. Since a criminal defendant could call the forensic analyst to exercise his right to confront that witness, there was no Sixth Amendment Confrontation Clause violation. In contrast, the dissent concluded the Confrontation Clause was violated since the defendants “were not able to subject the contents of the certificates of analysis to adversarial scrutiny before the prosecution concluded its cases in chief.” Magruder, 657 S.E.2d at 613 (dissent).

Confrontation Clause Issues

With the approach of oral argument on Monday, January 11th, a variety of issues have been isolated in the parties’ and amici’s briefs, including:

• Confrontation Clause Burden and Procedural Rules: The case challenges the constitutionality of a statute that permits a lab report to be admitted without the testimony of the analyst who prepared it, while providing the defendant a chance to subpoena the analyst to testify. In comparison with the simple notice-and-demand statute noted in Melendez-Diaz, does the statute in Briscoe shift the burden of calling witnesses to the defendant, even if at state expense? Or is the statute more of a procedural rule, requiring the defense to provide timely notice of its desire to cross-examine the analyst and requiring the government to make the witness available at trial?

  In Magruder, 657 S.E. at 122 ("The defendants do, however, claim that the statutory procedure, by its terms, shifts the burden of producing evidence and requires a criminal defendant to call the forensic analyst in order to exercise his right to confront that witness. This argument is not cognizable under the Confrontation Clause.") the Virginia court adopted this approach. See, e.g, United States v. Owens, 484 U.S. 554, 559 (1988) “[T]he Confrontation Clause guarantees only ‘an opportunity for effective cross-examination.’ ”) (alterations and emphasis in original)). As a result, the Virginia Supreme Court punted, concluding that "[b]ecause the defendants did not avail themselves of the opportunity to require the presence of a particular forensic analyst at trial, they were never in the position of being forced, over their objection, to call a forensic analyst as a witness. In other words, no defendant said to the respective circuit court, “the forensic analyst is here to testify but the Commonwealth must first call the witness.”")

• Practical Impact On Criminal Justice System: The amici states their fear that if the Supreme Court reverses in Briscoe on Confrontation Clause grounds, limited government resources may be unduly strained. The amici expressly urge the Court “at this first opportunity, [to] consider overruling Melendez-Diaz before it thoroughly wreaks havoc on State criminal justice systems” and note that “Melendez-Diaz threatens to dramatically increase the costs of drug prosecutions.” See Brief amicus curiae of the States of Indiana, Massachusetts, Alabama, Arizona, Colorado, Connecticut, Delaware, Florida, Idaho, Iowa, Kansas, Maryland, Michigan, Minnesota, New Jersey, New Mexico, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Washington, Wisconsin, Wyoming and the District Of Columbia Supporting Respondent, at 4, 7.
  
  This argument picks up the observation of Justice Anthony Kennedy dissenting in Melendez-Diaz of a “crushing burden” on the nation’s crime labs that would “put prosecutions nationwide at risk of dismissal based on erratic, all-too-frequent instances when a particular laboratory technician, now invested by the court’s new constitutional designation as the analyst, simply does not or cannot appear” at a defendant’s trial. See Melendez-Diaz, 129 S. Ct. at 2549 (dissent).
  
  Vigorous argument is presented against this fear, even in Melendez-Diaz. According to Justice Scalia, “the best indication that the sky will not fall” is that this “already” happened. All too many states have rules that let a defendant assert or forfeit his right to confrontation after receiving notice of the prosecution’s intent to use an analyst’s report at trial. See Melendez-Diaz, 129 S. Ct. at 2540.



• Accountability: There is some argument that the Virginia procedure properly balances burdens on the prosecution and on the defendant. It ensures that a lab analyst will be careful when they test because they can always be summoned to defend their results if the defendant so desires. The 26 state governments and the District of Columbia suggest the potential burdens of technican testimony have been overstated. In the real world, few criminal cases ever really get to the point of a dispute over expert testimony. The cost-saving mechanisms of the procedure used in Briscoe are similar to that of the notice-and-demand statutes that the Court suggested were not constitutionally infirm in Melendez-Diaz. Brief amicus curiae of the States of Indiana, Massachusetts, Alabama, Arizona, Colorado, Connecticut, Delaware, Florida, Idaho, Iowa, Kansas, Maryland, Michigan, Minnesota, New Jersey, New Mexico, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Washington, Wisconsin, Wyoming and the District Of Columbia Supporting Respondent, at 8-9.

Speculation On Matters Behind The Bench

As noted above, part of the attention to the Briscoe case is the possibility it may provide for the Court to reconsider its recent decision in Melendez-Diaz. In Melendez-Dias, the state law that violated the Confrontation Clause prohibited a defendant from calling the lab analyst as witnesses. The law barred confrontation and simply allowed submission of the certificate. On the other hand in Briscoe, the statutory procedure used requires the defendant to subpoena the lab analyst if the defendant wants to confront the analyst. If the Court should decide this is not in accord with the Sixth Amendment, it provides the Court the chance to significantly restrict Melendez-Diaz.

At this point, assessing the full impact of the Briscoe case appears like an exercise in judicial speculation than in contending constitutional theories: Does Justice Sotomayor’s more prosecution-orientated position render her more alarmed at the burden a reversal in Briscoe may pose for law enforcement? Did Chief Justice Roberts, a former law clerk of Chief Justice Rehnquist, who tried to limit the stretch of Crawford, see Briscoe as a chance to revisit the issue with a different court make-up? Monday’s argument may offer insight into both the legal arguments, and the political ones, arising in Briscoe.