Supreme Court Watch: Summary Of Briscoe Oral Argument

US Supreme Court

The case considers the requirements underlying the Confrontation Clause and possibly whether the recent Melendez-Diaz v. Massachusetts case should be reversed or modified, in Briscoe v. Virginia (No. 07-11191)



On Monday, January 11, 2008, the Supreme Court heard the oral argument on the Confrontation Clause case of Briscoe v. Virginia (No. 07-11191). As recently noted, the case raises a host of questions concerning the core requirements mandated under the Confrontation Clause and may present an opportunity for the Court to reverse or modify the recent June 2009 decision in Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527 (2009). As the Solicitor General’s Office noted during the argument, "this case presents … an important opportunity for the Court to provide guidance to States that are currently grappling with how to respond to the practical problems that have been presented in the wake of Melendez-Diaz." Transcript, at 56:1-5.

The specific question presented in the case 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?

The oral argument illuminated some interesting issues about the parameters of the Confrontation Clause, including the following points:

  • Confrontation Clause Requirements: A core focus of the argument considered what opportunity for cross-examination is compelled under the Confrontation Clause. Can 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 Confrontation Clause require that the analyst be sworn on the witness stand at trial with a testimonial acknowledgment that he or she stands by the results in the certificate of forensic analysis? The contours of the Confrontation Clause were explored at the hearing.

    As Justice Sonia Sotomayor framed the issue at argument: “Does the Confrontation Clause require, not just the ability to cross-examine …but an affirmative obligation to place the witness on the stand.” Transcript, at 5:8-12. She asked whether the prosecutor was required to do more than have the witness sworn and ask “Is this your report” with the analyst confirmation. Transcript, at 5:17-12. Petitioner’s counsel, Professor Richard Friedman, responded that the Confrontation Clause would be satisfied by swearing the witness and asking for an acknowledgment, “is your report, do you stand by it?” Transcript, at 9:6-11. In his view, “the witness has to take the stand” and “testify live, viva voce, face-to-face, in the time-honored phrases which have always governed testimony in an Anglo-American trial. Then the -- I think the witness has to at least be asked what happened. If the witness says, I don't recall, then the prior statement may be introduced.” Transcript, at 11:10-16. He claimed that a “fundamental … transformation in the Anglo-American trial” would result “if the Court were to hold that the prosecution can present an affidavit and leave it to the defendant, if he dares, to put the witness on the stand.” Transcript, at 27:6-11.

    On this line of the argument, Justice Samuel A. Alito, Jr. queried what was the difference between the state procedure, in which the analyst report was provided before trial and was made available for the defense to call at trial, and the situation in which the witness was called to the stand and merely asked to affirm the report? Transcript, at 9:12-16. Justice Alito wondered whether the difference was actually “slight”. Transcript, at 27:12-23.

    Justice Sonia Sotomayor, who is potentially a key swing vote in the case after replacing Justice David Souter who was in the narrow five to four majority in Melendez-Diaz, noted that she “trust[s] the trial process” and that under the state statute once the defendant indicated he desired to cross-examine the analyst, the government would likely question the witness first during direct examination; if the prosecutor “does or doesn't, why shouldn't we leave it to the normal trial strategy and practice to leave to that prosecutor the burden of non-persuasion? I thought that was what confrontation was about.” Transcript, at 13:3-20.

    The Solicitor General, through the argument of Assistant to the Solicitor General Leondra R. Kruger, viewed the Confrontation Clause requirements differently. She contended that the Confrontation Clause “ensure[s] that the government's evidence is subject to adversarial testing at trial” but that “[i]t is ultimately up to the defendant in every case to decide, no matter how the prosecution presents its evidence on direct, whether or not it wants to confront the witness and submit that witness' testimony to adversarial testing.” Transcript, at 47-48. In other words, “so long as the government ensures that the witness is available for cross-examination at trial, the Confrontation Clause places no constraints on the government's use of prior testimony or statements.” Transcript, at 48:1-18. Justice Antonin Scalia noted his concern over trials by affidavit, similar to “a whole European-type trial.” Transcript, at 33:22-23. He asked if the government’s position would extend beyond forensic analysts to other witnesses, which the Solicitor General indicated it could. Transcript, at 49:8-11; 50:7-8. Under this argument, the Solicitor General noted, “the Confrontation Clause allows the government to rely on affidavits, so long as it bring the affiants into court” when the defense seeks to cross-examine, and subject to the Due Process Clause. Transcript, at 52-52.

    Respondent’s counsel, State Solicitor General Stephen R. Mccullough, arguing on behalf of the Commonwealth of Virginia, noted that as a practical matter, apart from the Constitution, since “the prosecution always bears the burden of persuasion,” the government may elect to call “a live witness” which “is always more compelling than a piece of paper”. Transcript, at 45-46.
  • Whether To Reverse Or Modify the Five to Four Decision in Melendez-Diaz v. Massachusetts? One issue raised during the argument was whether the Briscoe case could overturn or modify the Melendez-Diaz ruling from last June.

    Petitioners’ counsel began his oral argument by specifically addressing the impact that a reversal would have. In his view, “If the Court were to reverse Melendez-Diaz and hold that a State may impose on the defendant the burden of calling a prosecution witness to the stand, it would severely impair the confrontation right and threaten a fundamental transformation in the way Anglo-American trials have been conducted for hundreds of years.” Transcript, at 3:13-18. Justice Sotomayor queried whether the notice provisions under the challenged state court statute were distinguishable from the statute considered in Melendez-Diaz. See Transcript, at 3:19-23 ( “The State court has interpreted their provision to give the defendant the choice of subpoenaing the witness or asking the State to bring in the witness. Why is that overruling Melendez-Diaz?”).

    Justice Scalia, who authored the landmark decision in Crawford v. Washington, 541 U.S. 36 (2004), pointedly asked "Why is this case here except as an opportunity to upset Melendez-Diaz." Transcript, at 55:11-12. He “criticiz[ed]” the Court “for taking the case.” Transcript, at 55:24.
  • Practical Impact on the Criminal Justice System: Justice Ruth Bader Ginsburg noted that one issue which had been raised in the briefs concerned the burden imposed by requiring the analyst to testify in court. She wondered whether an economy could be attained by permitting the analyst to testify “from the lab instead of coming down to the courthouse?” Transcript, at 15:9-16. Petitioners’ counsel responded that while the defendant could consent to a video process, “live testimony” was still required under the Confrontation Clause. Transcript, at 15-16.

    Petitioners’ counsel asserted that “the expense is not inordinate.” Transcript, at 16:14-15. However, Justice Samuel Alito Jr. noted in disbelief, “How can you say that? We have an amicus brief from 26 States plus the District of Columbia arguing exactly the contrary.” Transcript, at 16:16-18. In the brief, the States argued that “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.” Brief 26 States and the District of Columbia as Amicus Curiae Supporting Respondent, at 2.

    At the hearing, counsel for Respondent noted that there was a significant impact on the criminal justice system which had been observed after the state amended the statute in August 2009 to comport with the notice and demand “safe harbor” noted in Melendez-Diaz, 129 S. Ct. at 2541 (concluding that “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 in which he may object to the admission of the evidence absent the analyst’s appearance live at trial” do not violate the Confrontation Clause). Under the amended statute, the Commonwealth of Virginia has experienced some “extensive gamesmanship” which included “rampant demands for the witness to appear, followed by, ‘oh, well, he's here; I will stipulate,’ or no questions of the witness. So our experience under this old statute compared to our new one is that we had far more -- or far less under our old statute of this sort of tactical demands for confrontation.” Transcript, at 44:4-15. Justice Scalia wondered whether the post-Melendez-Diaz spike would recede. Transcript, at 44-45.
  • Multiple Forensic Analysts: Justice Stephen G. Breyer pondered about the limits of using multiple analysts: “if a laboratory is so organized so that six or seven people perform different steps of the operation,” as part of the analysis whether “all of them must be brought?” Transcript, at 23:10-19. Petitioners’ counsel contended that if “one person observes … all the procedures, that is sufficient” under the Confrontation Clause. Transcript, at 23:21-23.

The opinion may further clarify what requirements are necessary to satisfy the Confrontation Clause. Can states design procedural statutes that comport with the Confrontation Clause by requiring the government to provide the analyst for live testimony after the defense has requested cross-examination? Will the newest Justice (Justice Sotomayor) provide the deciding vote? Will the decision be supported by a narrow five to four majority as in Melendez-Diaz remains to be seen? These and other questions may be revealed when the opinion is issued by the conclusion of the Term, anticipated by July 2010.

In the meantime, for more information on the case, see Supreme Court Watch: Argument In Briscoe v. Virginia – Clarifying The Confrontation Clause Requirement?;
Supreme Court Watch: Certiorari Granted In Briscoe v. Virginia: Confrontation Clause Case Set For 2010 Supreme Court Term.

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