CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, September 4, 2009

Previewing the Coming Term (Part 14): Briscoe v. Virginia

StockburgerPeter [This is the fourteenth in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties and the petition for certiorari to provide an overview of the case and the advocates’ arguments. Links to the briefs appear at the end of the summary.This case was previously the subject of a guest post on CrimProf by Professor James J. Duane.]

Case: Briscoe v. Virginia
Docket No.: 07-11191
Oral Argument Date: not yet assigned

Issue:  Whether, 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, the state avoids violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness?

Factual and Procedural History:  Petitioners, Mark A. Briscoe and Sheldon A. Cypress, were charged and convicted on charges relating to the distribution of cocaine.  At trial, the key issue was whether the substances seized and introduced by the police and prosecution did actually contain cocaine.  The principal evidence introduced to establish this fact was a certificate of analysis prepared by a forensic analyst of the department of Criminal Justice Services.  The certificate had test results purporting to show that the seized substances contained large quantities of cocaine. 

Petitioners objected to the introduction of the certificate, arguing it was a violation of the Confrontation Clause.  The trial court overruled the objection and admitted the certificate.  Consequently, petitioners were convicted and sentenced in state prison. 

Petitioners appealed to the Supreme Court of Virginia, which affirmed their convictions.  The majority opinion found that the certificates were testimonial in nature, but held that Virginia’s statutory scheme that permits them does not violate the Confrontation Clause.  Petitioners filed a petition for writ of certiorari with the U.S. Supreme Court, which was granted.   Oral argument has not yet been scheduled.

Summary of Petitioner’s Argument:  No merit brief filed yet.

Summary of Respondent’s Argument:  No merit brief filed yet.

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Here is a link to petitioners brief:

SCOTUSWiki is up on this case also, but does not yet have the brief:

Here is a link to the Joint Appendix:

And here is a link to Prof. Friedman's blog. Unfortunately, but I think correctly, he's not commenting on Briscoe.

Cheers, great site.

Posted by: Phil Cave | Sep 4, 2009 11:05:51 AM

The point stated is a bit off: The Confrontation Clause requires the prosecution to produce a witness in court before the jury, subject to cross examination. If Briscoe is stated as the proposition that the defendant has the obligation to call the witness then we are back to Melendez-Diaz v. Mass which already decided the issue. We will see what Briscoe brings, most likely a new vote to replace Souter and join in the 'sky is falling dissenters'. The new vote is a former prosecutor and will in the long run dissappoint her supporters and be a 'pull the ladder up minority' (voting for the majority).

Posted by: mpb | Sep 5, 2009 12:25:51 AM

You can find the Petitioner's Brief and Appendix at Prof. Friedman's "confrontation blog." He's the lawyer on the case.

Posted by: Anon | Sep 5, 2009 7:23:06 PM

I disagree with the statement that "df has the obligation to call the witness" was settled in Melendez. Shifting that "obligation" is a compulsory clause and burden shifting issue. The only question the court answered in Melendez was whether the reports are testimonial for purposes of the confrontation clause.

Posted by: Anon | Sep 5, 2009 7:29:16 PM

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