Monday, December 07, 2009

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.

4 comments:

Greg Jones said...

Re Footnote 9: Professor, from your bar number, I infer you are too young to remember the days when Michigan required the prosecution to endorse, and produce, all "res gestae" witnesses in a criminal trial. Essentially, those were the persons present at the time and place of the alleged crime, either as eyewitnesses, or those who professed to have seen no offense. However, the term included, among others, the examining physician in sex offense cases, and the lab tech in drug cases. After presenting about three eyewitnesses, and before resting the government's case, the usual practice was to announce that the additional witnesses (whose names would be read into the record) were present, and ask if the defense wished any of them called. Usually the defense did not. Occasionally defense counsel would ask for one or two, by name, to be called, for the material the defense hoped to elicit on cross examination. The prosecutor then called the witness and asked the witness to state his or her name. Although the prosecutor might then ask a few more questions, the usual practice, after asking the name of the witness, was just to turn the witness over to the defense for cross examination.

The burden of 'no-show" witnesses in that scheme rested entirely on the prosecution. At the beginning of the case, when the judge asked the prosecutor if he was ready to begin the trial, the answer was "yes" if all the res gestae witnesses were present, or readily available. However, if one had not appeared in response to the subpoena, the usual practice was to ask for a bench warrant for that witness's arrest, and for an adjournment. The witness's failure to appear was usually regarded as good cause for the adjournment, even as to incarcerated defendants. I have prosecuted, and defended, under that system, and have seen all the scenarios above play out.

At oral argument, if posssible, you might also want to hit the point of "confirmatory bias" with regard to lab techs in drug cases. If they are told by the police that the police suspect the substance is cocaine, the lab tech is much more likely to report the presence of whatever substance the police suspect is present, than if the police simply say they don't know what the stuff is, and want it analyzed.

k.nishell said...

I would like to say that I am enjoying your posts on this subject. I first read about you ( or your comments rather) in the ABA Journal (1/2010) "Taking Techs to Trial" article. Interesting and intriguing...

Susan Bird said...

We, Alot In America, Appreciate You. My Thoughts, With You, Monday. Thanks for Helping the United States.

Anonymous said...

A recent New York case finding breath-test machine certifications to be nontestimonial. People v. Kelly, No. 2007NY078228, 2009 WL 5183779 (N.Y.City Crim.Ct. Dec. 22, 2009). Despite Melendez's dicta that such certifications may not be testimonial, how are the tests not "affidavits . . . made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial”?