Supreme Court Will Re-Hear Important 6th Amendment Case Today

The Supreme Court will hear oral argument at 11:30 a.m. Monday on Briscoe, et al., v. Virginia (07-11191). This is unusual, in that the Court is going to hear the same arguments it ruled on last June in Melendez-Diaz v. Massachusetts (opinion here.)

In June, the court ruled for the defense, which had objected to the state's reliance on an affidavit to prove a substance was cocaine. The defense said it was entitled to the live testimony of the chemist so it could cross-examine him or her. The Court agreed with the defense that live testimony was required under the Sixth Amendment's right to confront witnesses.

Scotus blog says since the ruling, 26 states and the District of Columbia have urged that the decision be overruled, hence, arguments tomorrow at which the Court may also decide to limit the right.

It's an important right, and I tell a story here about how having that right changed the outcome in one of my cocaine cases many years ago.

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    Seems like (none / 0) (#1)
    by jbindc on Mon Jan 11, 2010 at 08:27:35 AM EST
    We should get rid of the use all affadavits in court - for both the state and the defense.  You want the truth - put everyone on the stand. Yes, I get that the defense doesn't have to put on a case.  But any good defense attorney who honestly thinks the lab report is faulty has an affirmative duty to challenge that evidence, which means, under the Virginia law being challenged, to demand that the state put on (and pay for) the lab tech. The defense has a right to confront witnesses, but it doesn't have a right to force the state to do the defense attorney's job.

    The Supremes took this case (none / 0) (#2)
    by Peter G on Mon Jan 11, 2010 at 09:49:45 AM EST
    ... to review the validity of a Virginia law that tries to end-run the Melendez-Diaz precedent by saying that the state can use an affidavit, but if it does then the defense has an absolute right to call the lab tech themselves.  The states may want to see M-D overruled, but it's awfully rare for the Supreme Court to do a 180 in the space of a year or two.  Much more likely, in my opinion, that they're going to enforce their precedent by striking down Virginia's law.

    Point of fact (none / 0) (#5)
    by jbindc on Mon Jan 11, 2010 at 12:13:59 PM EST
    This was not an "end-run" around Melendez-Diaz.  Virginia's laws addressing this have been on the books since 1976.

    From Scotuswiki

    That specific dispute reached the Court in the Briscoe case because Virginia, like some other states, has a law that shifts to the defense lawyer the task of demanding the appearance at trial of the lab scientist or of another witness capable of discussing the report that the prosecution intends to offer as evidence. Prosecutors must give notice, before trial, of the plan to offer that evidence. Virginia's law specifies that the prosecution can offer such a report without putting on the stand a witness to discuss it. The law goes on to give the defense the right to call the scientist as a defense witness. The state must pay the cost of calling such a witness.

    Virginia passed the laws in 1976, with the aim of reducing the time that lab personnel were spending in court, and thus allowing them to do more work in the crime lab -- facilities that often have significant backlogs.

    I shouldn't have written "end run" (none / 0) (#7)
    by Peter G on Mon Jan 11, 2010 at 04:33:24 PM EST
    with the implication that the statute was passed after Melendez-Diaz.  Point is that Virginia claims it can rely on the procedure established in this statute and not be held in violation of M-D.  That, I don't see.  

    I can't believe that I actually agree (none / 0) (#3)
    by Chuck0 on Mon Jan 11, 2010 at 10:26:05 AM EST
    with Scalia on something. I think he's got this one right. Defense should be able to cross-examine any technician involved in obtaining or analyzing evidence against their client.

    Could the... (none / 0) (#4)
    by kdog on Mon Jan 11, 2010 at 11:20:41 AM EST
    Melendez-Diaz ruling be used/applied to allow defense attorneys to call the manufacturers of breathalyzers to the stand in DUI/DWI cases and compel them to testify?

    The issue is Confrontation Clause (none / 0) (#6)
    by Peter G on Mon Jan 11, 2010 at 04:31:36 PM EST
    of the Sixth Amendment.  Nothing stops the defense from calling any relevant witness to provide competent testimony; that's the Compulsory Process Clause, also in the Sixth Amendment.  Point here is that the Confrontation Clause prevents the prosecutor is using for its truth any written report authored in contemplation of its being presented as evidence in a criminal case (such as forensic lab reports); instead, the witness must testify.  If something written by the manufacturer of a breathalyzer met that test, then yes it would be covered.  But I'm not seeing your hypothetical being real.  

    I also don't (none / 0) (#8)
    by jbindc on Mon Jan 11, 2010 at 04:46:17 PM EST
    See it being feasible to have a lab tech testify at every criminal case either. Then what's to keep a defense attorney from asking for a lab tech to testify, even if they don't aruge with the conclusions?

    at least you get it... (none / 0) (#9)
    by diogenes on Mon Jan 11, 2010 at 05:13:09 PM EST
    This is all a reflex effort to make as many drug prosecutions as difficult as possible in hopes that the government repeals antidrug laws because they are too costly to enforce.  It is like the way that large numbers of obstacles are put in the way of carrying out the death penalty--and then, oops, we should repeal it because it is too expensive to enforce.
    Out of thousands of drug cases monthly in the US, exactly how many are going to have outcomes changed?
    If the tech wants to frame someone, then they will simply also lie on the stand.

    I see... (none / 0) (#10)
    by kdog on Mon Jan 11, 2010 at 05:30:18 PM EST
    not applicable because the mfg or calibrator would never author a report specific to a case.  Thanks Peter.

    I think they took the case (none / 0) (#11)
    by ericinatl on Mon Jan 11, 2010 at 06:22:19 PM EST
    In the hope that Sotomayor (a former prosecutor) will replace Souter's vote in the prior decision with a vote to overrule the prior decision.  I hope that is not the case.  I think all "analysis" should be subject to confrontation.