Monday, June 29, 2009

Cert granted in Briscoe

As some readers already know, the Supreme Court granted cert today in Briscoe v. Virginia, on a petition I filed last year. The petition sought review of the decision of the Supreme Court of Virginia in Magruder v. Commonwealth, 275 Va. 283, 657 S.E.2d 113 (2008). You can read the petition by clicking here, the Commonwealth's brief in opposition by clicking here, and my reply brief in support of the petition by clicking here.

I had said that I would comment on the dissent in Melendez-Diaz. In light of the grant in Briscoe, I will not do that.


Anonymous said...

I expected this to be GVR'd for further consideration in light of Melendez-Diaz. Odd.

Steven Yermish said...

Professor Friedman:
I disagree with the comment that Briscoe would be a GVR. It seems to me that Briscoe is the next logical case to take in the Crawford progression.
It will allow the court to address the permissible parameters of "notice and demand" stautes, a topic Justice Scalia discussed in dicta in the Melendez-Diaz opinion. This could be rather timely, since I would expect many state legislatures will enact "notice and demand" statutes or rules in response to Melendez Diaz.
By the way, I noted that the Court issued GVR opinions in several cases at the same time as Melendez Diaz was issued, including cases concerning DNA and ballistics testing certifications.
Your thoughts?

Anonymous said...

Actually, I suspect Richard has very few thought he wants to express publicly on this case now that he's back at the SC. It's too bad. I would have liked a frank discussion but I can understand why that is not prudent at this point in time.

Richard D. Friedman said...

Sorry, I think I had better avoid making public comments on the case or issues closely related to it.

I will say this: The night before I argued Hammon, we ate at Fogo de Chão, a Brazilian steakhouse. i expect we will return. My kids are divided 2-1, in the affirmative, on the question, "Are you more excited to be going back to the Supreme Court to watch Dad argue than to be going back to Fogo de Chão?" Or so they tell me.

Richard D. Friedman said...

I wrote my comment before seeing the one just before. I'll just add: I'd be delighted if others discuss issues related to the case here; I just think I'd better keep mum.

Anonymous said...

A conspiracy theorist might suggest that the four Melendez dissenters were the votes to grant cert in Briscoe, in hopes that by the time Briscoe gets argued and decided, the majority coalition will no longer hold (Souter being gone) with the goal of undoing much of what has been done.

habeaslaw said...

So after combing through Kennedy's dissent, like Yermish, I'm left wondering whether Briscoe was granted so the court could clarify its holding. I apologize in advance for the length of this post. However, I'm preparing to respond to the State in a habeas case where they've argued M-D doesn't apply.

Kennedy aptly points out that the court fails to actually identify who constitutes an "analyst". He seems to diverge from reality, however, is when he adopts the notion that nothing in the Confrontation Clause's text, history, or precedent justifies the Court's decision to expand the definition of "ordinary" or "conventional" witnesses against the defendant to include lab analysts.

The examples Kennedy gives regarding the lab technician, lab supervisors, and the proficiency examiner are not material to proving that the defendant committed the crime in question. Most of the instances he describes are merely relevant to the reliability of the scientific method employed by the examiner. Reliability is often addressed in hearings held to determine whether the expert opinion/testimony is even admissible (a typical Daubert hearing). Such hearings are only held if the Defendant objects to the admission of the expert’s opinion. It necessarily follows that, when challenged, witnesses/analysts who are material to the reliability of the scientific method used by the expert would be required to testify in court before the experts opinion is introduced.

Contrary to Kennedy, I think a material witness who prepares a lab report that identifies the victim, the defendant, or contraband that is material to the offense does have “personal knowledge of an aspect of the defendant’s guilt.” Moreover, I believe the analyst who actually authors the report and conclusions is an adversarial government official who is investigating a crime. In a number of capital cases, I have seen many “Requests for Examination” that infect the methodology surrounding the analysis. For example, a Law Enforcement officer submits a request for examination with the following notation on the cover page -- “child victim and suspect did not bleed, need to tie suspect clothes, car, child’s clothes to adult victim.” Considering Neufields study and the NAS report indicating DNA is the only reliable forensic method, I can’t imagine what would lead Kennedy to believe there might be increasing reliability of scientific testing.

The notion that a FBI forensic examiner is not an adversarial government official who is investigating a crime is an oxymoron.

In sum, when addressing analyst's affidavits prepared for the sole purpose of a prosecution, Kennedy totally ignores the difference between a material witness and a non-material witness. I believe Scalia intended M-D to apply to material witnesses only. That is witnesses who are relevant to the matter at issue and required in order to resolve the matter.

The only part that Kennedy seemed to get right was "The rules of evidence, including those governing reliability under hearsay principles and the latitude to be given expert witnesses; the rules against irrebuttable presumptions; and the overriding principle that the prosecution must make its case beyond a reasonable doubt -- all these are part of the protections for the accused." So, if the court didn’t grant Briscoe to clarify or narrow their holding, I suspect they’ll address whether requiring a defendant to subpoena the analyst as a hostile witness after the burden of persuasion has shifted to the Df violates the Compulsory Clause because it requires a Df to call a witness who is NOT "in his favor"; or whether requiring a defendant to subpoena the analyst as a hostile witness after the burden of persuasion has shifted to the Df deprives him of the presumption of innocence and/or creates a impermissible presumption or inference of guilt.

Thoughts? Comments?

Joe Bourne said...

Since Richard is inviting comments, I was struck by the Melendez-Diaz dissent's near-insistence that the Court really hadn't meant it when it held in Crawford (and reaffirmed in Davis) that testimonial hearsay is the touchstone of Confrontation Clause analysis.

The cert grant on Briscoe is interesting. It plainly should be a case in which the Court starts to define the permissible parameters for notice-and-demand statutes. But if Justice Sotomayor is not on board, the Court can easily reverse Melendez-Diaz. Then we're left with something approximating Kennedy's dissent as the new law of the land: Crawford applies to "traditional witnesses," Roberts is revived to apply to at least forensic scientists, and it's not clear what the rule is for any other nontraditional witnesses (if there are any who don't fit into the Melendez-Diaz category).

Joe Bourne said...

Also on the dissent, I don't want to accuse anyone of being disingenuous, but pace Kennedy, I really don't think it's that hard to figure out who the constitutional "analyst" is in these cases.

Kennedy gives four examples of who might be considered the analyst in Part I.A.1.: (1) The person who takes the sample, runs tests on it, and retrieves the computer printout; (2) the person who interprets the graph that was printed out; (3) the person who will certify that he calibrated the machine; and (4) the lab supervisor who will certify that his subordinates followed correct procedures.

The testimonial statement at issue is the lab report identifying the drug as cocaine. (1) is analyst. (2) also has to be cross-examinable, but because he is an expert witness interpreting the report. (3) and (4) are too far removed -- they didn't have anything to do with running the tests or creating the report that identifies the cocaine as cocaine. Indeed, (4) lacks personal knowledge of anything.

habeaslaw said...

Thanks for your comments Joe.

Anonymous said...

To the extent we know what testiminial means, I'm not sure "being too far removed" will suffice to make machine certifications non-testimonial. Clearly, an objective witness would reasonably believe that the statement (the certification) would be available for use at a later trial.

user said...


Anonymous said...

What does this list think of Melendez Diaz and its use with regard to Breathalyzer tests in DUI cases?

habeaslaw said...

Anon-I don't think Prof Friedman is commenting considering the cert grant. However, here is an old post from him that you might find helpful.

Anonymous said...

(from Andrew Fine):

Scalia's opinion in Melendez-Diaz strongly suggests that documents attesting to the functionality of breathalyzers would be non-testimonial:

"Additionally, documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records." 129 S.Ct. 2527, 2532 n. 1.

If the poster is referring to a document reporting the result of a breath-test of a suspected drunk driver, I think it's basically self-evident under Melendez-Diaz that such a document would be testimonial.

Anonymous said...

Scalia's dicta contradicts, or at least is not completely consistent with, his statement that lab reports are testimonial because an objective witness would reasonably believe that the statement would be available for use at a later trial. Broadly construed, this would encompass breathalyzer certifications. The person certifying the machine certainly knows that the only reason for the certification is to lay the foundation - at trial - for the admissibility of the breath test.

Ryan S said...

Regarding the intoxylizer certification, Scalia's dicta is arguably at odds with the analysis of his opinion. Note also that in his gun control opinion, his dicta regarding the rights of felons is inconsistent with the holding of the case. See Sentencing Law and Policy blog for a thorough discussion of that issue. What I wonder -- pure speculation of course -- is if such dicta is Scalia's way of holding together a very tenuous majority. I don't normally think of Scalia as a horsetrader, in order to make sure his opinion carries the day, but perhaps in light of those two decisions that opinion will need to be revised.

Anonymous said...

(from Andrew Fine)

At least one NY trial judge apparently agrees that breathalyzer operability certificates are testimonial. See portion of article pasted below. The opinion is as yet unpublished.

(from New York Law Journal,8/7/09p. 1, col. 3):

Citing 'Melendez-Diaz,' Judge Calls Technicians to Testify in Person

By Vesselin Mitev
August 07, 2009

A recent U.S. Supreme Court decision may mean more travel time for New York state police lab technicians.

A Long Island judge last month agreed with a defense attorney in a drunken-driving case that two technicians based in Albany were required to testify in person about the maintenance of equipment used to test a defendant's blood alcohol level. (People v. Drew Mineo, Supreme Court, Nassau Co., David J. Ayres, J.)

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Peter said...

Most people using the services of a Utah DUI attorney plead not guilty and schedule their cases for pre-trial conferences. If your attorney has a different strategy,

Marlena said...

It won't succeed as a matter of fact, that's exactly what I think.

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I had said that I would comment on the dissent in Melendez-Diaz. In light of the grant in Briscoe, I will not do that.
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