Cert petition on "Who must testify?"

Sooner or later, the Supreme Court will have to resolve the question of who must testify to the substance of a lab test. Indeed, with Briscoe now safely off the Supreme Court's docket, this would be a logical next issue for the Court to tackle; the justices were interested in it both in Melendez-Diazand in Briscoe. Jeff Fisher has just filed a cert petition raising this issue in Pendergrass v. Indiana, seeking review of Pendergrass v. State, 913 N.E.2d 703 (Ind. 2009). You can read it by clicking here.

G . . . VR in Briscoe

One June 25, the day the Supreme Court decided Melendez-Diaz, most observers -- including me -- confidently predicted that it would GVR Briscoe -- that is grant the petition, vacate the case, and remand it to the Virginia Supreme Court for further consideration in light of Melendez-Diaz. Well, now that has happened, in a rather odd way. The Court granted the petition on June 29. And, as many readers already know, today -- after full briefing and argument -- it vacated and remanded. You can find the per curiam opinion -- and the Court is listing it as an opinion, rather than as an order -- by clicking here, and you need not budget more than a few seconds to read it.

Thus, we have the result that most observers fully expected right after the Melendez-Diaz decision in June. We will probably not know, at least for a long time, why the Court decided to take the case. But there has been considerable speculation that it did so to give it an opportunity to reconsider Melendez-Diaz, or cut back on it, given the replacement of Justice Souter by Justice Sotomayor. A comment by Justice Scalia at argument lent some force to this theory.

Twenty-five states and the District of Columbia, as amici, explicitly asaked the Court to overrule the case. That didn't happen.

The essence of the argument presented by Virginia and the United States was implicitly that the Court should overrule Melendez-Diaz to the extent that it held that a state violates the Confrontatin Clause if it presents testimony in written form, leaving it to the defendant, if he wishes, to put the witness on the stand. (Virginia contended that the now defunct statute involved in the case required the prosecution to guarantee the presence of the witness, a reading of the statute that I believe is unjustified, and both Virginia and the United States conceded that this would be required to make the statute valid.) That didn't happen.

Instead, we have a per curiam decision, for a unanimous Court that now includes Justice Sotomayor rather than Justice Souter, treating Melnedez-Diaz without question as good law, as one would expect the Court should do.

I hope that states and prosecutors that have been waiting in hopes that somehow the Court would go back on what it just decided seven months ago today will now get on with what they should do. They should recognize that numerous states have long acted in a way that fully complies with the Confrontation Clause as it is so well applied in Melendez-Diaz, and that they can do the same.

No doubt, the issue of who must testify with respect to lab results will have to be resolved by the Court. In fact, Jeff Fisher has just filed a cert petition on this issue, and I will post that soon. Eventually, perhaps, the Court will also adress the lower-significant issues of whether a state may require a defendant who demands live testimony to assert a good faith reason or an intent to cross-examine.

But for right now, on an issue that is -- pardon the expression -- orthogonal to those, the issue of how must a prosecution witness testify, the critical point confirmed by Melendez-Diaz remains the law: A prosecution witness must testify live, face to face with the accused, and not in writing.

Top 50 Criminal Justice and Criminology Blogs

I just received word that Justice City, USA, another blog, listed the Confrontation Blog as one of the top 50 Criminal Justice and Criminology Blogs. I didn't even know there were 50 blogs in the field! But it's an interesting list, which you can find at.

http://careersincriminaljustice.net/?p=60

In any event, my thanks to readers. I look forward to being able to comment with (relative) lack of restraint once Briscoe is decided.

Transcript in Briscoe

The Supreme Court heard argument yesterday in Briscoe v. Virginia. You can read the transcript by clicking here. I will hold substantive comments -- including about the exchange on the word "orthogonal" -- until after the decision.

Here are a couple of corrections, though, as to case names. On page 8, line 21, the case I referred to was Learn, not Warren.

On page 50, lines10-11 the cases to which Ms. Kruger referred were Inadi and White v. Illinois.

Reply brief in Briscoe

I have just served and filed the reply in Briscoe. You can read it by clicking here.

The argument will be on January 11, at approximately 11 am. I will argue on behalf of the petitioners. Steve McCullough, who became the Solicitor General of Virginia while the petition in this case was pending, will argue on behalf of Virginia. I want to take this opportunity to say that he has been extremely gracious, as well as professional, throughout the entire matter. The United States has asked for and received 10 minutes of time, from Virginia's allotment; I don't know who will argue.

Briscoe: Bottom side amicus briefs, and argument date

The Solicitor General has filed an amicus brief in support of Virginia in the Briscoe case. You can read it by clicking here. Twenty-six states and the District of Columbia have also filed a brief in support of Virginia, and you can read that one by clicking here.

The argument has been set for January 11.

Respondent's Brief in Briscoe

The Commonwealth of Virginia has just filed its brief in Briscoe v. Virginia. You can read it by clicking here. The reply brief is due November 25, and I believe the argument will likely be held on January 11.

Joint Appendix in Briscoe

For anybody who might be interested, here is a link to the Joint Appendix in Briscoe