Chicken Little Or Canary In The Coal Mine?, Take 3: Could Briscoe v. Virginia Lead To An Immediate Overturning Of Melendez-Diaz?

Last week, I wrote a post about the Supreme Court's new opinion in Melendez-Diaz v.Massachusetts, in which it found in a 5-4 vote that certificates of state laboratory analysts were "testimonial" and thus covered by the Sixth Amendment. One of the five Justices in the majority was Justice Souter, who, of course, will soon be gone from the Court, likely to be replaced by Sonia Sotomayor. What this means is that the Melendez-Diaz opinion could soon be invalidated if the Court hears a case that leads it to reassess Melendez-Diaz, and the new Justice agrees with the four dissenting Justices in Melendez-Diaz. And, as SCOTUS Blog, recently noted, the Court has just granted cert in just such a case. 

The subject case is Briscoe v. Virginia, which will address 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?”

In other words, the Justices in Briscoe v. Virginia will address the Constitutionality of so-called "notice and demand statutes, which, as I noted in my initial post, the majority and dissenting opinions addressed in dicta in Melendez-Diaz. But, you have to imagine that if the four dissenting Justices from Melendez-Diaz can convince the new Justice on the block to join their ranks, we will get not only an opinion dealing with the Constitutionality of notice and demand statutes, but also an opinion striking down Melendez-Diaz. As I learn more about Briscoe v. Virginia, I will write more posts about it. For now, here are links to the opinion of the Supreme Court of Virginia (here; scroll down to 070762); the cert petition; the brief in opposition; and the petitioner's reply.

-CM