Monday, October 26, 2009

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.

1 comment:

Jigokumimi said...

OK, Prof. Friedman can't really speak to this, but maybe someone else can: Briscoe looks like a pretty straightforward case, so I'm trying to figure out what I'm missing.

Virginia has a notice & demand statute, saying that if the govt intends to introduce "certificate" evidence at trial, it has to tell the defendant in advance.
If D is going to object, it must be before trial -- and if there's a timely objection, it's still on the govt to produce the analyst.
If D does not timely object (as here), that waives the Confrontation right, and the cert itself is admissible.

Scalia already said at least the "simplest form" of N&D statutes were constitutionally valid.
And Sotomayor already approved the broadest reading of "testimonial," in her only published Crawford decision.

So it looks like Briscoe is going to be about the acceptability & limits of N&D statutes -- not reversing M-D, or anything similarly extreme.
Unless I'm missing something. Am I?