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Testing the Melendez-Diaz Waters

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Today, the U.S. Supreme Court released a second orders list, and agreed to hear arguments in a case that could test the limits of Melendez-Diaz v. Massachusetts (07-591) and its ruling on the Confrontation Clause.  Lyle Denniston comments at SCOTUSblog that with today's decision to review Briscoe v. Virginia (07-11191), Judge Sotomayor's likely confirmation to succeed Justice Souter could place the Melendez-Diaz decision in jeopardy. We think it is more likely that the new case could control the damage from that decision (or "narrow considerably" as Lyle puts it), but not overrule it.

In Magruder v. Commonwealth, as the case was known in state court, the Supreme Court of Virginia held that Virginia's "notice-and-demand" statutes of § 19.2-187 and § 19.2-187.01, "adequately protect[ed] a criminal defendant's rights under the Confrontation Clause" because it gave the defendant notice of the State's intent to call the witness, and opportunity to summon the lab technician as an adverse witness.  The statutes did not violate the Confrontation Clause because there is nothing wrong with asking a defendant to utilize a procedure to secure his right to confrontation. 

The Petition for Certiorari, authored by Confrontation Clause Blogger Richard Friedman, argues that the Supreme Court of Virginia's decision "poses a fundamental threat" to the right to confront witnesses against you.  He argues that, as the Supreme Court stated in Taylor v. Illinois, the Sixth Amendment right "arise[s] automatically on the initiation of the adversary process and no action by the defendant is necessary to make them active in his or her case."  In other words, the burden is always on the State to produce the witness against the defendant, and the burden is always on the defendant to object to the State's introduction of a witness testifying against the accused.  Because a lab report is now considered to be testimonial evidence, this could be construed to require the state to supply the lab technician in every trial that it plans to introduce a lab report into evidence.  However, this is not exactly what the majority required in Melendez-Diaz.  In fact, the Court left this issue open. 

Without specifically mentioning the Petition in Briscoe, on page 21 of the slip opinion, the majority stated: "The defendant always has the burden of raising his Confrontation Clause objection; notice-and-demand statutes simply govern the time within which he must do so. States are free to adopt procedural rules governing objections."  The statement fleshed out an earlier footnoted ruling that states may adopt procedural rules governing the exercise of evidentiary objections, and sometimes the right to confrontation may be waived, "including by failure to object to the offending evidence[.]"  This left open the question of whether a statute like Virginia's will pass constitutional muster after Melendez-Diaz

In another footnote, the Court acknowledged that some statutes require the defendant to subpoena the analyst, but stated, "[w]e have no occasion today to pass on the constitutionality of every variety of statute commonly given the notice-and-demand label. It suffices to say that what we have referred to as the 'simplest form [of] notice-and-demand statutes,' supra, at 21, is constitutional; that such provisions are in place in a number of States[.]"  Again, no mention was made to Briscoe, or Virginia's procedural rule. 

After all this, we know that the Court seemed to like the "notice-and-demand" provision discussed the Colorado case of Hinojos-Mendoza v. People.  The statute discussed in Hinojos-Mendoza, Colo. Rev. Stat. section 16-3-309(5), governed the introduction of lab analyst reports at trial, and allows "[a]ny party" to "request that... [a] technician testify in person at a criminal trial on behalf of the state before a jury or to the court, by notifying the witness and other party at least ten days before the date of such criminal trial.  The Colorado Supreme Court found that this right could be waived if the defendant failed to comply with section 16-3-309(5), and failed to subpoena the lab technician 10 days before trial when he was aware that Colorado would introduce a lab report into evidence.  

The Court's reference to Hinojos-Mendoza v. People does not directly answer the question before the Court in Briscoe.  That question asks whether states avoid violating the Confrontation Clause by providing the accused the right to all the analyst as an adverse witness when it plans to introduce a certificate of a forensic laboratory analysis, but it does come close - particularly since the Colorado Supreme Court found the lab report used against Hinojos-Mendoza to be testimonial.  It will be interesting to see how the addition of a new Justice interprets this issue, and if she places the same value on Colorado's decision in Hinojos-Mendoza

(The State's Brief in Opposition is available here, and the Reply Brief is here)  

1 Comment

Scalia doesn't seem to be the type of Justice that has a problem with waivers. Court rules and statutes place limits on defendants' ability to call witnesses, interpose alibi defenses etc. Why would this be much different? The right to call witnesses is a constitutional guarantee as is the right to present a defense.

I also don't think Sotomayor is going to buck the liberals on this one either.

I think the best explanation for this one is that the Court wants to give lower courts guidance in the area so as to minimize the chaotic effect of its most recent pronouncement.

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