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Tuesday, August 18, 2009

Guest Blogger James J. Duane (Regent Law School): The Extraordinary Mystery of Briscoe v. Virginia

[Last week, CrimProf noted this interesting email to the Evidence Law listserve from Professor Duane and asked if he would share it, in slightly modified form, with our readers.]

Duane In Briscoe v. Virginia (No. 07-11191), filed in May 2008, Professor Rich Friedman’s cert petition asked the U.S. Supreme Court to grant review to decide the following question:

“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?”

That question, it seemed, was later answered with unmistakable clarity (wasn’t it?) in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 2534, 2540 (2009), when the 5-member Court majority wrote:

"The text of the Amendment contemplates two classes of witnesses—those against the defendant and those in his favor. The prosecution must produce the former; the defendant may call the latter.”

“Respondent asserts that we should find no Confrontation Clause violation in this case because petitioner had the ability to subpoena the analysts. But that power-whether pursuant to state law or the Compulsory Process Clause-is no substitute for the right of confrontation. Unlike the Confrontation Clause, those provisions are of no use to the defendant when the witness is unavailable or simply refuses to appear. See, e.g., Davis, 547 U.S., at 820, 126 S.Ct. 2266 (“[The witness] was subpoenaed, but she did not appear at ... trial”). Converting the prosecution's duty under the Confrontation Clause into the defendant's privilege under state law or the Compulsory Process Clause shifts the consequences of adverse-witness no-shows from the State to the accused. More 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. Its value to the defendant 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."

When I read that passage, I was surely one of many who assumed that the Court was preparing to dispose of Briscoe v. Virginia by granting Professor Friedman’s cert petition, presumably the very next day, and remanding for further proceedings in light of Melendez-Diaz. And so I was extremely surprised, four days later, when the Court simply granted the petition and set the case for oral argument. I find it impossible to believe that any of the five members of the majority in Melendez-Diaz thought that the issue presented in Briscoe had not already been decisively and intentionally resolved in Melendez-Diaz. I would be delighted to hear thoughts from any of you about this.

If I am right about this, then the following extremely interesting questions and my extremely tentative answers present themselves:

Q. Who voted to grant cert and set the case for oral argument in Briscoe, and why?

A. That was probably the course preferred by only the four dissenting justices (Roberts, Alito, Kennedy, and Breyer), who made it plain in their very lengthy dissent that they thought the majority was profoundly mistaken and had reached a decision with dire consequences for the system of criminal justice. It only takes four to grant cert, as we all know. At the time the Court agreed to grant certiorari, those four already knew, as everyone else did, that one member of the Court’s majority (Justice Souter) was retiring and being replaced by a justice who spent five years as a prosecutor in New York. I suspect that the four therefore saw Briscoe as their chance to possibly persuade Justice Sotomayor to essentially reverse what the majority wrote in Melendez-Diaz on the very same question – the paragraph I have quoted above. If I right about that, regardless of whether you agreed with the majority or the dissent, there is something a little unsettling and unseemly about the possibility that four members of the Court voted to grant cert on a petition which, in hindsight, was seen by them as presenting the question: “Should this Court take back and reverse what it wrote just four days ago?” So much for stare decisis – and the value of extracting promises to adhere to it in senate confirmation hearings.

Q. But couldn’t the other five members of the Court put together a majority in favor of a summary disposition in Briscoe that would vacate and remand the decision of the lower court for reconsideration in light of Melendez-Diaz? And if so, why didn’t they?

A. A tougher question. I assume they surely could have done so, and I have no doubt that at least Justice Scalia – and probably several other members of the majority – must have suggested and supported that course. So why didn’t they do so? Obviously I do not know. My best guess is that Justice Souter – the only member of the majority in Melendez-Diaz who was not returning in the fall – found himself in the middle of a surprisingly tense four-day standoff and perhaps even a four-four split between his colleagues, and decided that he would rather not supply the fifth vote to decide a matter that had become so contentious on his way out the door, and opted instead for the alternative of passing the buck to his replacement.

This is pure guesswork on my part. But I am hard pressed to see some other explanations for this very interesting development. Any other guesses? Feel free to post your comments below.

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Somewhere along the line of trading opinion drafts around the halls of court it was learned that Souter was retiring. The rational thing to do would be to vote for re-argument and await his departure. How many votes does it take to vote to re-argue? How many to vote to accept cert on Briscoe?

My bet is that the ex prosecutor Sotomayor will "pull the ladder up" and vote with the dissenters (the sky is falling!) and overturn Melendez-Diaz on some distinction. Perhaps the lab report in Brisco was certified before three notaries and the author stated that the statments contained therein where not intended to be testimonial.

Posted by: mpb | Aug 18, 2009 8:48:42 AM

Could the issue have something to do with preservation of the claim?

The question presented in Briscoe v. Virginia seems to argue that the introduction of the evidence is plain error or structural error that provides a ground for relief even in the absence of an objection by the defense. Under Melendez-Diaz it might still be necessary to object at trial to the use of a report, rather than a witness.

The court could also be using Briscoe v. Virginia to address retroactivity.

Sotomayor certainly could vote for a summary disposition, or disposition on the briefs, as well.

Posted by: ohwilleke | Aug 18, 2009 1:04:22 PM

I think they granted cert in Briscoe to address two things that Kennedy touched on in his M-D dissent and the compulsory/confrontation distinction that Scalia touched on in the opinion.

1) Whether a notice statute that authorizes a Df to subpoena that expert treat him/her as an adverse witness shifts the burden of persuasion and/or production to the defendant?
2) Whether a notice statute that authorizes a Df to subpoena that expert treat him/her as an adverse witness creates a presumption of guilt?

The "demand" part of the Briscoe statute isn't really a demand, it is merely a subpoena provision. In other words, nothing in the statute allows the DF to demand that the State produce the witness against him so he can confront that witness.

Posted by: Anon | Aug 18, 2009 3:12:55 PM

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