Briscoe v. Virginia

PETITIONER: Mark A. Briscoe and Sheldon A. Cypress
RESPONDENT: Virginia
LOCATION: Circuit Court, Alexandria Virginia

DOCKET NO.: 07-11191
DECIDED BY: Roberts Court (2009-2010)
LOWER COURT: Supreme Court of Virginia

CITATION: 558 US 1316 (2010)
GRANTED: Jun 29, 2009
ARGUED: Jan 11, 2010
DECIDED: Jan 25, 2010

ADVOCATES:
Leondra R. Kruger - Assistant to the Solicitor General, Department of Justice, for the United States, as amicus curiae
Richard D. Friedman - on behalf of the petitioners
Stephen R. McCullough - Solicitor General, Virginia, for the respondent

Facts of the case

This appeal is the consolidation of three separate cases that involved defendants' conviction for possession of cocaine in a Virginia state court. On appeal, the defendants argued that the admission into evidence of a certificate of analysis in the absence of testimony at trial from the person who performed the analysis and prepared the certificate, pursuant to Virginia Code Section 19.2-187, violated the Confrontation Clause of the Sixth Amendment. The Supreme Court of Virginia disagreed, holding that the provisions of Section 19.2-187 did not violate a defendant's Confrontation Clause rights. Moreover, the court held that the defendants in these cases knowingly, intelligently, and voluntarily waived their Sixth Amendment rights to confront the forensic analysts when they failed to call them as witnesses at trial.

Question

If a state allows a prosecutor to introduce a certificate of laboratory analysis, without presenting testimony of the analyst who prepared the certificate, does that state avoid violating the Confrontation Clause of the Sixth Amendment by providing the accused the right to call the analyst as his own witness?

Media for Briscoe v. Virginia

Audio Transcription for Oral Argument - January 11, 2010 in Briscoe v. Virginia

John G. Roberts, Jr.:

We'll hear argument next in Case 07-11191, Briscoe v. Virginia.

Mr. Friedman.

Richard D. Friedman:

Mr. Chief Justice, and may it please the Court: We ask the Court in this case to take no new ground beyond that established just last term in the Melendez-Diaz case, but the stakes of this case are high.

If the Court were to reverse Melendez-Diaz and hold that a State may impose on the defendant the burden of calling a prosecution witness to the stand, it would severely impair the confrontation right and threaten a fundamental transformation in the way Anglo-American trials have been conducted for hundreds of years.

Sonia Sotomayor:

The State court has interpreted their provision to give the defendant the choice of subpoenaing the witness or asking the State to bring in the witness.

Why is that overruling Melendez-Diaz?

Richard D. Friedman:

Your Honor, the -- the State courts, since the time of this case -- since the time that these cases were tried, raised the possibility of asking the -- that the defendant could ask the witness to bring -- that the defendant could ask the prosecution to bring in the witness.

It doesn't really change anything from a straight subpoena statute in any -- in either event.

Sonia Sotomayor:

Well, how is that different from a notice statute?

If--

Richard D. Friedman:

Okay.

Sonia Sotomayor:

--If we take the statute as the State supreme court has read it--

Richard D. Friedman:

Right.

Sonia Sotomayor:

--they say: In my mind, it's a notice statute; tell the prosecutor you either want them to call the witness or you subpoena the witness.

That's what the State court has told us.

Whether or not you had notice of that interpretation is a separate question.

Richard D. Friedman:

That--

Sonia Sotomayor:

Let's separate out the two questions.

Richard D. Friedman:

--Okay, fine, fine.

The -- the two aspects that Melendez-Diaz said were wrong with the subpoena statute are both present in this statute even as interpreted by the -- by the State supreme court.

That is, nothing in Melendez-Diaz -- I'm sorry, nothing in the Magruder case -- the opinion here suggests that the prosecution would bear the burden of calling the witness to the stand.

I think the Magruder case, the decision of the State supreme court is very explicit and goes in accordance--

Sonia Sotomayor:

So that's our first question--

Richard D. Friedman:

--That's--

Sonia Sotomayor:

--Does the Confrontation Clause require, not just the ability to cross-examine--

Richard D. Friedman:

--That's right.

Sonia Sotomayor:

--but an affirmative obligation to place the witness on the stand?

Richard D. Friedman:

That's correct.

Sonia Sotomayor:

Could I just ask you one--

Richard D. Friedman:

Yes.