Monday, January 25, 2010

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.


Anonymous said...

My first reaction on hearing the news was, "At least he got to argue a case before the Supreme Court".

I hope you cherish the opportunity rather than lament the time lost.

Richard D. Friedman said...

Thanks. Yes, this was very exciting -- no less so the second time than the first. And I am very glad, given the speculation that the Court had taken Briscoe to undermine Melendez-Diaz, that this one-line decision reaffirms and strengthens that decision.

Anonymous said...

One observation that I didn't see come up in the conversation re costs of subpoenaing a live witness involves the pressure on states to higher more reliable lab technicians. In New Orleans, Louisiana, the lead crime lab guy was named Joe Tafaro. If all the govt. had to do was send his report, they were fine. But when he showed up its clear that he was nothing more than a cop with a BS degree in worms who had gotten moved off the force. And when he actually testified, he'd say stuff like -- i can tell the woman was screaming as she died based upon the hair fiber I analyzed. The specter of having to call a live witness drives labs to get rid of folks like Tafaro, who couldn't properly id a bag of weed unless he was smoking it. I imagine every city in the country has lab techs it wouldn't let near a court room . . . and now we get to find out whether they can hide them behind a boss or have to get rid of them.

MPB said...

I enjoyed reading the transcript of the oral argument and commend advocate Friedman. Some questions.
Does the witness, the lab tech, have to come live, face to face not on video, to a preliminary hearing?
Can they employ video from a remote location at jury trial?
How would the jury see his/her shaking hands and worts or tatoos on his/her arms if not present?

Did it seem from the get-go that Justice Sotomayor was backing Melendez-Diaz?
What is it like to stand up and see these 9 Justices (8 of whom will ask questions) and respond to their sometimes off the wall questions? Seemed like a lot of ego in that room.

I appreciate this blog.

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