IN October Term 2008, the Supreme Court handed down Melendez-Diaz v. Massachusetts—the latest case in the Crawford line under the Confrontation Clause.1 In Melendez-Diaz, the prosecution sought to introduce an affidavit by a forensic analyst that stated a given substance was cocaine. The defendant objected, arguing that the Confrontation Clause required that the analyst testify in person. Justice Scalia, writing for a five-Justice majority that included Justices Ginsburg, Souter, Stevens, and Thomas,2 held that the reports of forensic analysts are "testimonial," and thus a prosecutor can only introduce such a report if the analyst is subject to "confrontation," or if the defendant waives that right.
Melendez-Diaz may have drastic consequences for the criminal justice system. Justice Kennedy, writing for a four-Justice dissent that included Chief Justice Roberts and Justices Alito and Breyer, worried about the "remarkable" and "formidable power" that Melendez-Diaz gives to defense attorneys.3 Despite Scalia’s assurances that defendants will be "unlikely" to regularly require the analyst’s presence,4 in Virginia defendants have liberally asserted that right. In the nine months before Melendez-Diaz, forensic analysts were subpoenaed an average of 528 times per month. In July, the month after the opinion was handed down, analysts were subpoenaed 1885 times. In the succeeding months, that spike abated, to 1737 in August, 1631 in September, and 1441 in October.5 The drop in the number of subpoenas, however, may only reflect defense attorneys’ ability to take advantage of this "formidable power" by gaining a more lenient sentence during plea negotiations.
The Court handed down Melendez-Diaz on a Thursday. The following Monday, the Court granted certiorari in Briscoe v. Virginia.6 In that case, the Supreme Court of Virginia—writing one year before Melendez-Diaz—had assumed that an analyst’s report was "testimonial," but it held that the confrontation right was satisfied by a Virginia statute that allowed the defendant to call the analyst as an adverse witness during the defense phase of trial.7 The Court heard arguments in Briscoe on January 11, 2010.
Under the language of Melendez-Diaz, it seems a foregone conclusion that the Court in Briscoe will strike down this statute. The Massachusetts law at issue in Melendez-Diaz similarly empowered the defendant to call the analyst as his own, hostile witness.8 But in Melendez-Diaz, Scalia explained that "fundamentally, the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court."9 Further, Scalia reasoned, the Confrontation Clause is "not replaced by a system in which the prosecution presents its evidence via ex parte affidavits and waits for the defendant to subpoena the affiants if he chooses."10 For this reason Petitioners in Briscoe, who are represented by Professor Richard D. Friedman of the University of Michigan Law School, conclude that "[t]he question presented . . . has been definitively resolved by this Court."11 Then again, the Court’s acceptance of certiorari in Briscoe suggests that the result will not be that simple; if the Court believed that Melendez-Diaz did resolve this issue so clearly—and if the Court had no plans to review Melendez-Diaz—then presumably it would have simply vacated and remanded Briscoe.
In its brief Respondent, the Commonwealth of Virginia argues that Melendez-Diaz requires only that the prosecution must subpoena the analyst and ensure his arrival at the trial, and the defendant cannot be required to bring the witness to the courtroom.12 Yet this argument ultimately is difficult to square with the language of that opinion; Scalia seemed to require that the analyst appear in the prosecution’s case, since he rejected a system "in which the prosecution presents its evidence via ex parte affidavits" and a system that would view analysts as "adverse witnesses." Indeed, even Virginia’s legislature found its prior statute insufficient under Melendez-Diaz: after Melendez-Diaz, the Virginia General Assembly amended its statute to require that, if the defendant so chooses, the prosecution must both subpoena the analyst and call him as a witness in the prosecution’s case-in-chief.13
The Commonwealth’s chances of success in Briscoe may depend less on its novel reading of Melendez-Diaz than on the new Justice on the Court. Justice Souter sided with the majority in Melendez-Diaz. But when the Court considered Briscoe, Souter had been replaced by Justice Sonia Sotomayor. Sotomayor’s experience as a prosecutor and a trial judge suggests that she might take more seriously the concerns of the dissent in Melendez-Diaz—of the remaining Justices, only Alito also served as a prosecutor, and he dissented in Melendez-Diaz.14 In fact, some commentators suggest that certiorari was granted in Briscoe not to extend Melendez-Diaz, but to overrule or limit it.15
This essay will explore the options and compromises available to the Court in Briscoe. Moreover, it will explore how these various options can be used as a vehicle to shape future jurisprudence under the Confrontation Clause.
OPTION ONE: SOTOMAYOR JOINS THE MELENDEZ-DIAZ MAJORITY IN FULL
Scalia’s language in Melendez-Diaz made clear in what direction he would head. If in Briscoe Sotomayor fully joins the Justices of the Melendez-Diaz majority, then the Court in Briscoe would invoke Scalia’s language in Melendez-Diaz and confirm two holdings from that opinion. First, the Court would hold that an analyst’s report is "testimonial," and thus inadmissible unless the defendant has an opportunity to confront the witness or waives the right to do so. Second, the Court would hold that the prosecution must introduce the analyst in its own case-in-chief—and that the Confrontation Clause is not satisfied by a statute that allows the defendant to call that witness in his own case.
OPTION TWO: SOTOMAYOR JOINS THE MELENDEZ-DIAZ MAJORITY, BUT ALLOWS THE ANALYST TO BE CALLED BY THE DEFENDANT
The Court in Briscoe, however, could adopt the central holding of Melendez-Diaz—that lab reports are testimonial evidence—but limit the consequences of that decision by concluding that the Confrontation Clause is satisfied if the defendant calls the analyst as an adverse witness during the defense phase of trial.16 After all, it is one thing to agree with Scalia that logically the prosecution should present its own witnesses; it is quite another thing to say that the Constitution compels it.
Nevertheless, this second option has two initial problems: the first is textual, and the second precedential. First, the Confrontation Clause states that a defendant has the right "to be confronted with" the witness. As noted by the dissenting justices of the Virginia Supreme Court, this right is stated in the passive, and it seems to require nothing of the defendant during trial.17 But on brief in Briscoe, the Commonwealth of Virginia has tried to overcome this by arguing that the "confrontation" that is contemplated by the Sixth Amendment is actually not a "confrontation" by the witness during direct examination, but is rather an opportunity for cross-examination by the defendant—whether during the prosecution’s or the defendant’s case. There are some nineteenth-century concurrences and dissents from the Court that support this view.18
But second, even if the text of the Sixth Amendment can be read to require only that the defendant can call the witness as an adverse witness, this option conflicts with the strong language in Melendez-Diaz that seemed to reject the adequacy of a system that enabled the defendant to call the analyst as his own witness. Sotomayor and the dissenting Justices in Melendez-Diaz may be reluctant to adopt the Commonwealth’s strained reading of Scalia’s statements in Melendez-Diaz, and they may be even more reluctant to openly restrict a prior decision less than a year old—especially during Sotomayor’s first year on the Court.
OPTION THREE: SOTOMAYOR JOINS THE MELENDEZ-DIAZ MAJORITY, BUT LEAVES ROOM FOR, AND GIVES GUIDANCE FOR, STATUTORY RESTRICTIONS
There is another way that the Court in Briscoe can adopt the reasoning of Melendez-Diaz while limiting its consequences for the criminal justice system. The Court can follow the holding of Melendez-Diaz under option one, but in its holding it can leave room for restrictions on that right, such as a requirement that the defendant "intends in good faith to conduct the cross-examination" of the analyst, as he must under Alabama law, or that the defendant "establishes . . . a substantial and bona fide dispute" regarding the document and establishes that cross-examination is in the "best interests of justice," as he must under Nevada law.19 Such a holding would not conflict with Melendez-Diaz; in that opinion, the Court expressly declined to evaluate such statutes.20 Of course, the Court in Briscoe could not directly address such statutes. But by clarifying some principles, it could lay the groundwork for later consideration of these other statutes.
The Court’s stance on these statutes has the potential to be even more important to Confrontation Clause jurisprudence than a holding on when the witness must appear. Such statutes would allow states to regulate away the practical problems of Melendez-Diaz, because they would require the analyst’s presence only in those rare cases where the defendant has his own evidence of errors in the report. Yet allowing a "good cause" requirement would constitute a burden on the defendant’s assertion of his right of confrontation; the Georgia Supreme Court rejected such a statute as a "Catch-22": the defendant needs cross-examination to identify the specific grounds that the statute requires prior to cross-examination.21
In reaching any conclusion in Briscoe, the Court can clarify the goals underlying the Confrontation Clause. At present, those goals are ambiguous. Before Crawford, the Court recognized three elements of the right of confrontation: the witness must give his statements under oath; the witness must submit to cross-examination; and the witness must give his statements before the jury, who can evaluate his statements.22 The dissent in Melendez-Diaz used this pre-Crawford language and identified two broad concerns of the Clause: to bring the witness face-to-face with the defendant and thereby "to impress upon witnesses the gravity of their conduct," and "to alleviate the danger of one-sided interrogations."23 By contrast, the Court in Crawford suggested that the Confrontation Clause is less about oath and presence than it is about cross-examination by the defendant. Crawford stated that the Sixth Amendment requires that "reliability be assessed in a particular manner: by testing in the crucible of cross-examination."24 The goals of the two positions are overlapping, but fundamentally, the former envisions a Confrontation Clause that does work even when the defendant is passive in court, while the latter envisions a Clause that works only when the defendant acts to cross-examine the witness. If the Court sets the rationales of the Clause more broadly, then such statutes may be disallowed; alternatively, under a rationale that focuses on cross-examination, a requirement that the defendant cross-examine the witness would be permissible.
This option seems to present an ideal compromise: it accepts the holding of Melendez-Diaz, but (for good or ill) it leaves for another day some fundamental questions about the impact of the Confrontation Clause, while allowing the Court, if it chooses, to lay some foundations for consideration of those other questions. In adopting this option the Court in Briscoe would do well to choose its language carefully and to pay attention to the ramifications of that language for later restrictions on the right.
OPTION FOUR: SOTOMAYOR JOINS THE MELENDEZ-DIAZ MAJORITY, BUT DRAWS A LINE AT WHICH ANALYST REPORTS ARE CONSIDERED "TESTIMONIAL" UNDER MELENDEZ-DIAZ
The Court in Briscoe might also reduce the practical consequences of Melendez-Diaz by defining more narrowly which analyst reports are "testimonial."25 Some language from that opinion, however, may hinder the Court’s ability to adopt such alternatives.
In Briscoe, the Court can define what analyst reports are "testimonial" in one of two meaningful ways. The Court could hold that a report that summarizes machine maintenance—as opposed to the results from a test by the machine—is not testimonial. This is consistent with Scalia’s statement in Melendez-Diaz that "documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records."26 Yet such a distinction might be difficult to justify. The Court could reason that maintenance records are excluded because evidence is "testimonial" only when it presents direct evidence of guilt. Unfortunately, this goes against the language of Melendez-Diaz, which noted that the Constitution identifies only two classes of witnesses: those "against" the defendant, and those "in his favor."27 Alternatively, the Court in Briscoe could reason that maintenance records are nontestimonial because they are analogous to business records—that is, evidence is "testimonial" only when the evidence is created with "the purpose of establishing or proving some fact at trial," or at least "prepared specifically for use at [a particular defendant’s] trial."28 Yet this reasoning might be difficult to apply by lower courts, because the purpose for any given act of maintenance may be unclear.
A better way to achieve the same result might be to declare that only the results of the test itself are testimonial, and therefore only the analyst who reads or interprets the results of the test must appear in court. A test based on this distinction screens out witnesses who perform maintenance tasks, but it would also keep out evidence of the handling or preparation of a sample. This test would be easier to justify under existing precedent: the Court could reason that such evidence goes to the chain of custody, which does not implicate the Confrontation Clause. Yet in Melendez-Diaz, Scalia noted that for evidence of chain-of-custody, "what testimony is introduced must (if the defendant objects) be introduced live."29 If the majority relies on a distinction that chain of custody is normally not testimonial, Melendez-Diaz might therefore nevertheless bring those analysts into court. Indeed, this language has already had seemingly unintended consequences; Virginia’s General Assembly recently revised its DUI statutes no longer to require proof that the breath analysis machine had been maintained within the previous six months, since a Virginia intermediate appellate court had held that under Melendez-Diaz such maintenance reports must be presented via live testimony.30 This controversial move took away the prosecution’s burden to prove the machine’s reliability, and thus it was originally opposed by the Virginia Senate.31
Ultimately, this option would have the most practical impact on life in the forensics lab, since labs will structure their policies to reduce the number of analysts that could be required to testify in person. For these reasons, the Court should be wary to accept a distinction about testimonial reports without mapping out the policies that labs are likely to adopt in response, and whether they would benefit or hinder the fact-finding process. In particular, the Court should be careful to avoid a holding that aims to reduce the burden on prosecutors but inadvertently encourages labs—or legislatures—to reduce maintenance or change procedures that would reduce the reliability of analyst testimony.
OPTION FIVE: SOTOMAYOR JOINS THE MELENDEZ-DIAZ DISSENT IN FULL
If in Briscoe Sotomayor joins the dissenting Justices in Melendez-Diaz and overrules that opinion, as twenty-six states and the District of Columbia have suggested as amici curiae,32 the result is as predictable as that outlined in option one. Generally, this option would retain the "testimonial" test of Crawford and its originalist framework, since in Melendez-Diaz the majority and dissent put forward competing originalist interpretations. But specifically, the dissent argued that the Framers intended to extend the Confrontation Clause only to a "conventional" or "typical" witness, who recalls past events, observes a crime or related human action, and responds to questions under interrogation.33 For the dissent, the analyst does none of these.34 Thus, under this option the majority in Briscoe would hold that an analyst’s statement is not "testimonial."
OPTION SIX: THE COURT DODGES THE QUESTION—OR TRIES
Given the high stakes of Briscoe, and the fact that the Justices may not want to contradict Melendez-Diaz so soon, the Justices may prefer to avoid these questions. The Court could attempt to dodge the question through inaction, either by vacating the case without an opinion or by dismissing the petition. In the event that the Court declines to hear the merits of the case, Petitioners would prefer vacatur, and Respondent Virginia would seek dismissal.35
First, the Court could vacate and remand the case in light of Melendez-Diaz. Petitioners argue that if the Court declines to decide Briscoe on the merits, it should vacate and remand the case, rather than dismissing the petition.36 The Court might take this tack in order to avoid the questions of Briscoe; yet because of Scalia’s strong language in Melendez-Diaz, if the Court passes on Briscoe it would actually endorse option one—or at least option four, which leaves room for later restrictions. Moreover, vacatur and remand might give such a signal to the Virginia Supreme Court. Since that court already held that the evidence was testimonial, vacatur and remand would suggest that the Court disagrees with the Virginia court’s second holding: that the confrontation right is satisfied when the defendant is able to call the analyst as an adverse witness.
Second, the Court could dismiss the petition as improvidently granted. There is a justification for such a dismissal: because Virginia has amended its statute to require the prosecution to present the analyst in its case-in-chief, a question of current Virginia law is no longer at issue. And although the question remains of the permissibility of other state statutes that resemble the Virginia statute at issue in Briscoe, the question may not justify consideration by the Supreme Court.37 Virginia recommends such a dismissal.38 More generally, Virginia seems to hope that a dismissal would endorse option two, since a dismissal would leave untouched the Virginia court’s holding that the confrontation right is satisfied when the defendant can call the analyst. Yet dismissing the petition in this way would not necessarily allow for option two; dismissing the petition leaves Scalia’s language endorsing option one untouched.
There is one way that the Court can act to successfully avoid the key questions in Briscoe. Recall that on brief, Virginia hoped to read Scalia’s comments in Melendez-Diaz to avoid the question of when the analyst must appear at trial.39 Such a position is difficult to maintain; Scalia seemed to foreclose a system that would require the defendant to call the witness to the stand when he argued that the Confrontation Clause is "not replaced by a system in which the prosecution presents its evidence via ex parte affidavits and waits for the defendant to subpoena the affiants if he chooses."40 But the Court in Briscoe could similarly conclude that while Scalia contemplated the order of proof, the necessary holding in Melendez-Diaz related only to which party has the burden to call the witness; under this reasoning, the Court in Briscoe could accept Scalia’s statements at their face value, but clarify that they were merely dicta. And because the defendant in Briscoe did not seek to call the analyst at trial, the Court could argue that the question of when the analyst must appear should be put off. This would technically solve the precedential problem posed by Melendez-Diaz, and it would allow the Court to delay answering the other questions the case presents until it has sufficient time to consider their practical consequences.
SOTOMAYOR’S CONTRIBUTIONS TO THE COURT IN BRISCOE
More generally, Sotomayor may leave her mark on the Court’s discussion in two particular ways: the first dealing with the content of the Confrontation Clause, and the second with the practical effects of Melendez-Diaz on attorney behavior. First, she will be able to provide a fresh perspective on when confrontation must take place under the Confrontation Clause. As the parties have already argued on brief, central to this inquiry of when the witness must appear are practical evidentiary concerns.41 Alito was a prosecutor, but Sotomayor was a trial judge, and during conference she will be able to provide a unique sense of what difference exists, if any, between a witness being called by the prosecution or by the defense. Her understanding may well inform and influence the other Justices on what sorts of procedures satisfy and safeguard the right of confrontation.
Second, Sotomayor may be able to lend insight into the discussion of the effect of Melendez-Diaz on conduct by prosecutors and defense attorneys. Since the opinion was handed down, Virginia has seen a dramatic increase in the number of analyst subpoenas. But the real import of Melendez-Diaz may take place behind the scenes, at the plea bargain stage. Sotomayor and Alito have both served as prosecutors. But Alito was a federal prosecutor, and federal prosecutors often exercise considerable power at that stage, most notably because of the ability to bring multiple charges if the case goes to trial. Sotomayor, by contrast, was an assistant district attorney for the state of New York. She may be able to bring to the Court an understanding of how plea bargains take place at the state level and to what extent Melendez-Diaz will affect the decisions of prosecutors and defense attorneys in that system.
In Briscoe, the Court will be forced to answer some of the questions posed by Melendez-Diaz. It will have to either determine again what sorts of analyst evidence is "testimonial," or, alternatively, it will spell out the content of a defendant’s rights under the Confrontation Clause. Possible dispositions remain available that would again leave these questions open—although even in these compromises, the Court will probably be forced to consider broader issues of the Confrontation Clause, such as when the analyst must appear at trial. Ultimately, although Justice Scalia’s language in Melendez-Diaz made clear his vision of the proper outcome in Briscoe and the content of the right of Confrontation, the decision in Briscoe is likely to turn on Justice Sotomayor’s.
Preferred citation: Stephen Wills Murphy and Darryl K. Brown, The Confrontation Clause and the High Stakes of the Court's Consideration of Briscoe v. Virginia, 95 Va. L. Rev. In Brief 97 (2010), http://www.virginialawreview.org/inbrief/2010/01/23/murphybrown.pdf.
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