Yesterday, our Blog Scan linked to Mark Hansen's report on Briscoe v. Virginia. That article mentioned that Justice Sotomayor may be the one to watch to determine whether the Court will uphold a Virginia Supreme Court's holding that a statute governing the admission of certificates of analysis did not violate the Confrontation Clause. Right off the bat, Justice Sotomayor made it clear that she would influence the outcome of the case, and indicated that her vote may differ from Justice Souter's in last year's case Melendez-Diaz v. Massachusetts.
Briscoe's attorney, Richard Friedman, opened his argument by suggesting that upholding the Virginia statute would overrule last term's Meledez-Diaz decision. Friedman barely got two sentences out before Justice Sotomayor asked him to explain how upholding Virginia's statute would overrule Melendez-Diaz. Her question, and other comments she made during oral argument, indicate Justice Sotomayor finds Virginia's interpretation of Virginia Code § 19.2-187.1 consistent with the Melendez-Diaz decision. In other words, it is unlikely that Briscoe will be the case to overrule last term's decision.
Briscoe may not overrule Meledez-Diaz, but it might clarify the type of statute that will not violate the Confrontation Clause. During oral arguments, both Justices Sotomayor and Alito asked Friedman to explain whether the confrontation clause was violated if a technician was called to the stand to lay the foundation for the report. In this scenario a technician would acknowledge that he had prepared the report, but may not testify about the substance of the report. Richard Friedman said this type of testimony would not violate the Confrontation Clause because it satisfied the requirement that the witness testify live. He argued that live testimony does not impose and unfair burden on states, and throughout the course of argument, acknowledged that depositions and analyst testimony via video conferencing might be permissible if the analyst was unable to testify in court. Friedman's bottom line was that the Confrontation Clause did not permit trial by document, or affidavit, and the Confrontation Clause would be violated if a lab analysis were allowed as evidence without live testimony.
Virginia Solicitor General Stephen McCullough next took the floor and argued that the Court should uphold Virginia's statute as interpreted by the Virginia Supreme Court. The Virginia Supreme Court had interpreted § 19.2-187.1's statement that an analyst "shall be summoned" to mean that unless the defendant summoned the analyst on his own, or asked the trial court or the Commonwealth to do so, he could not claim a Confrontation Clause violation when the analyst did not appear. Justice Sotomayor seemed concerned at the lack of notice given to defendants under this statute, she asked McCullough to clarify how "this was a notice and demand statute as opposed to a subpoena statute?" McCullough argued that Virginia's law differed from a subpoena statute because it placed the burden on defense counsel to raise the issue, but did not demand that the defendant subpoena the analyst as a witness.
Justice Scalia remained unconvinced by McCullough's argument. He stated that the Confrontation Clause requires the prosecution to produce the analyst, and did not like that the lower court's interpretation Virginia's statute still required the defendant "to take the initiative to get the person brought in..." Throughout argument, Justice Scalia appeared unconvinced that Virginia's law would prohibit admission of a lab report if the state failed to produce a requested analyst. The "shall be summoned" language did not alleviate his fears that a statute like Virginia's would allow prosecutors to get around Melendez-Diaz's rule.
Leondra Kruger, an Assistant to the Solicitor General, began her argument in support of Virginia's ruling by arguing that "[a] state adequately safeguards the confrontation right recognized in Melendez-Diaz when it guarantees that it will, on the defendant's request, bring the analyst into court for face-to-face confrontation and cross-examination at trial." That prompted Justice Scalia to respond, "[t]hat's not what we said in Melendez-Diaz, unfortunately." He clarified that Melendez-Diaz requires the prosecution to produce its own witnesses, and cannot be replaced by "system in which the prosecution presents its evidence...and waits for the defendant to subpoena the affiants if he chooses." This continued until, near the end of argument, Justice Scalia asked Ms. Kruger whether the Virginia statute at issue still existed. When she replied it did not as Virginia was unwilling to sacrifice the validity of convictions before the Court decided Briscoe, Justice Scalia stated, "I'm not criticizing Virginia; I'm criticizing us for taking the case."
Justice Scalia's criticism may be what ultimately decides Briscoe v. Virginia. If the same Justices that made up Melendez-Diaz's majority (Scalia, Breyer, Ginsburg, and Stevens) are joined by Justice Sotomayor then "shall be summoned" statutes like Virginia's will no longer be valid. If however, Justice Sotomayor agrees with Ms. Kruger's argument that Briscoe is important to states looking for guidance in the wake of Melendez-Diaz's decison, then Briscoe could provide necessary guidelines for states struggling to meet Melendez-Diaz's sweeping constitutional pronouncement.
Briscoe may not overrule Meledez-Diaz, but it might clarify the type of statute that will not violate the Confrontation Clause. During oral arguments, both Justices Sotomayor and Alito asked Friedman to explain whether the confrontation clause was violated if a technician was called to the stand to lay the foundation for the report. In this scenario a technician would acknowledge that he had prepared the report, but may not testify about the substance of the report. Richard Friedman said this type of testimony would not violate the Confrontation Clause because it satisfied the requirement that the witness testify live. He argued that live testimony does not impose and unfair burden on states, and throughout the course of argument, acknowledged that depositions and analyst testimony via video conferencing might be permissible if the analyst was unable to testify in court. Friedman's bottom line was that the Confrontation Clause did not permit trial by document, or affidavit, and the Confrontation Clause would be violated if a lab analysis were allowed as evidence without live testimony.
Virginia Solicitor General Stephen McCullough next took the floor and argued that the Court should uphold Virginia's statute as interpreted by the Virginia Supreme Court. The Virginia Supreme Court had interpreted § 19.2-187.1's statement that an analyst "shall be summoned" to mean that unless the defendant summoned the analyst on his own, or asked the trial court or the Commonwealth to do so, he could not claim a Confrontation Clause violation when the analyst did not appear. Justice Sotomayor seemed concerned at the lack of notice given to defendants under this statute, she asked McCullough to clarify how "this was a notice and demand statute as opposed to a subpoena statute?" McCullough argued that Virginia's law differed from a subpoena statute because it placed the burden on defense counsel to raise the issue, but did not demand that the defendant subpoena the analyst as a witness.
Justice Scalia remained unconvinced by McCullough's argument. He stated that the Confrontation Clause requires the prosecution to produce the analyst, and did not like that the lower court's interpretation Virginia's statute still required the defendant "to take the initiative to get the person brought in..." Throughout argument, Justice Scalia appeared unconvinced that Virginia's law would prohibit admission of a lab report if the state failed to produce a requested analyst. The "shall be summoned" language did not alleviate his fears that a statute like Virginia's would allow prosecutors to get around Melendez-Diaz's rule.
Leondra Kruger, an Assistant to the Solicitor General, began her argument in support of Virginia's ruling by arguing that "[a] state adequately safeguards the confrontation right recognized in Melendez-Diaz when it guarantees that it will, on the defendant's request, bring the analyst into court for face-to-face confrontation and cross-examination at trial." That prompted Justice Scalia to respond, "[t]hat's not what we said in Melendez-Diaz, unfortunately." He clarified that Melendez-Diaz requires the prosecution to produce its own witnesses, and cannot be replaced by "system in which the prosecution presents its evidence...and waits for the defendant to subpoena the affiants if he chooses." This continued until, near the end of argument, Justice Scalia asked Ms. Kruger whether the Virginia statute at issue still existed. When she replied it did not as Virginia was unwilling to sacrifice the validity of convictions before the Court decided Briscoe, Justice Scalia stated, "I'm not criticizing Virginia; I'm criticizing us for taking the case."
Justice Scalia's criticism may be what ultimately decides Briscoe v. Virginia. If the same Justices that made up Melendez-Diaz's majority (Scalia, Breyer, Ginsburg, and Stevens) are joined by Justice Sotomayor then "shall be summoned" statutes like Virginia's will no longer be valid. If however, Justice Sotomayor agrees with Ms. Kruger's argument that Briscoe is important to states looking for guidance in the wake of Melendez-Diaz's decison, then Briscoe could provide necessary guidelines for states struggling to meet Melendez-Diaz's sweeping constitutional pronouncement.
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