U.S. Supreme Court revisits Melendez-Diaz ruling re: right of defendant to confront forensic experts – States seek to shift burden to Defendant to call government witness for cross-examination


Washington Post Staff Writer  Tuesday, January 12, 2010

It was just a little more than six months ago that the Supreme Court decided that defendants must have the opportunity to challenge those who prepare forensic reports before they are admitted into evidence. So Justice Antonin Scalia, who wrote that opinion, wanted to know why his colleagues were debating it once again Monday.

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“Why is this case here, except as an opportunity to upset Melendez-Diaz?” Scalia thundered, referring to the opinion the court rendered at the end of its term last June.

That is exactly what 26 states and the District of Columbia want the court to do, saying the ruling imposes a debilitating procedural and financial requirement on prosecutors. There is at least a theoretical possibility that the 5 to 4 decision will not stand. Now-retired Justice David H. Souter was part of the majority, and he has been replaced by Justice Sonia Sotomayor, a former prosecutor the states hope will be more receptive to their arguments.

So Sotomayor, the last to vote when justices meet in their private conferences to discuss cases, was at the forefront of Monday’s arguments. She and Scalia dominated questioning, but Sotomayor gave no indication she was ready to overturn the court’s earlier decision. She seemed more interested in finding a way to implement the decision in a way that helps prosecutors without offending the Constitution’s guarantee that the accused be able to question those who testify against them.

Sotomayor asked Virginia Solicitor General Stephen R. McCullough what kind of rule would allow prosecutors to present the forensic reports without the proceeding becoming a “trial of affidavits.”

The case at hand is in an unusual posture. Two men, Mark A. Briscoe and Sheldon A. Cypress, were indicted on charges of cocaine possession in separate incidents. Each objected to the admission of a state lab report identifying the white substance in their possession as cocaine, because the person who conducted the test was not called to testify.

The Virginia Supreme Court combined their cases and turned down their appeals, saying the men could have called the analysts on their own.

But Scalia said that was not good enough, and read from his own decision in Melendez-Diaz: “The Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court.”

Last term’s decision scrambled the court’s normal ideological teams: Scalia was joined by the court’s most conservative member, Justice Clarence Thomas, as well as liberals Souter, John Paul Stevens and Ruth Bader Ginsburg.

Justice Samuel A. Alito Jr. was the toughest questioner for University of Michigan law professor Richard D. Friedman, who represented Briscoe and Cypress. Alito said there was only a “slight difference” between whether the lab analyst was called in the prosecution’s part of the trial or the defendant’s, so long as the accused had a chance to question.

Friedman said placing the responsibility on the defendant would be a “transformation in the Anglo-American trial” and would mean that the analyst’s failure to show at trial would hurt the defendant, not the prosecution. Friedman warned that the principle could be expanded to audiotapes, videotapes or other kinds of witness testimony.

“Let’s just not get beyond the facts of this case,” Alito said. “All that we are dealing with is an analyst’s report relating to the nature of the substance that was tested and, if it’s a controlled substance, the amount. That’s it.”

Alito also disputed Friedman’s contention that the Melendez-Diaz ruling was not imposing an undue burden on prosecutors. Alito pointed to the brief by the states and the District, which called the decision “unworkable.”

“If it is not a burden on these 26 states plus the District of Columbia, why are they bothering to make this argument?” Alito asked. “Just for amusement?”

Arguments about costs did not move the majority justices last term. And Scalia noted that less than two months after the Melendez-Diaz decision, Virginia amended its law so that it “complies completely.”

“So we are pronouncing on the validity of a Virginia statute that is now gone, right?” Scalia asked Leondra R. Kruger, a federal assistant solicitor general who was supporting Virginia.

Told that Virginia was trying to protect convictions that came between the court’s decision and the new law, Scalia replied: “I’m not criticizing Virginia; I’m criticizing us for taking the case.”

The case is Briscoe v. Virginia.

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