Monday, January 11, 2010

Chicago Criminal Lawyer comments on Supreme Court case Briscoe v. Virginia and the Confrontation Clause

This Chicago Criminal lawyer, like many, was heartened when Justice Anton Scalia wrote the majority opinion last summer in Melendez-Diaz v. Massachusetts. That case stands for the proposition that the accused has a right to confront those who would testify against him. In that case, Melendez-Diaz was found guilty after lab reports were submitted. There was no opportunity to ask questions of those who wrote the reports.

The Sixth Amendment guarantees a defendant the right “to be confronted with the witnesses against him.” (Emphasis added.) To the extent the analysts were witnesses (a question resolved above), they certainly provided testimony againstpetitioner, proving one fact necessary for his conviction—that the substance he possessed was cocaine. The contrast between the text of the Confrontation Clause and the text of the adjacent Compulsory Process Clause confirms this analysis. While the Confrontation Clause guarantees a defendant the right to be confronted with the witnesses “against him,” the Compulsory Process Clause guarantees a defendant the right to call witnesses “in his favor.” U. S. Const., Amdt. 6. The text of the Amendment contemplates two classes of witnesses—those against the defendant and those in his favor. The prosecution must produce the former;3 the defendant may call the latter. Contrary to respondent’s assertion, there is not a third category of witnesses, helpful to the prosecution, but somehow immune from confrontation.

It is often, indeed perhaps usually, the case that an adverse witness’s testimony, taken alone, will not suffice to convict. Yet respondent fails to cite a single case in which such testimony was admitted absent a defendant’s opportunity to cross-examine

The shocker is that the Supreme Court decided to revisit Melendez-Diaz so quickly. Over 20 states submitted amicus briefs to indicate that complying with Melendez-Diaz was too onerous for prosecutors. So today there were oral arguments presented in Briscoe v. Virginia.

Just last June, the Supreme Court decided that when prosecutors rely on lab reports they must call the experts who prepared them to testify. It was an important ruling, based on a defendant’s right to be confronted with witnesses against him, but the court is about to revisit it. The justices should reaffirm that the Sixth Amendment requires prosecutors to call the lab analysts whose work they rely on.

On Monday, the court hears arguments in Briscoe v. Virginia, in which a man was convicted on drug charges. The prosecutors relied on certificates prepared by forensic analysts to prove that the substance seized was cocaine. They did not call the analysts as witnesses.

The defendant should be able to get his conviction overturned based on Melendez-Diaz v. Massachusetts, the ruling from last June, which held, by a 5-to-4 vote, that using lab reports without calling the analysts violates the Sixth Amendment.

Today, the inquiry was animated. It actually included an admission from the Respondent that testimony in a trial could indeed be provided by affidavit, completely thwarting the basis of the Confrontation Clause.

JUSTICE SOTOMAYOR: Could you -- are you suggesting -- or are you saying even a trial by affidavit is okay under the Confrontation Clause? Is that your position?

MS. KRUGER: Our principal submission is that the Confrontation Clause allows the government to rely on affidavits, so long as it bring the affiants into court, so that the defendant can ask whatever -

JUSTICE SOTOMAYOR: So you are absolutely saying that, under the Confrontation Clause, trial by affidavit of any witness would be okay.

MS. KRUGER: That is a principle -

JUSTICE SOTOMAYOR: So are you -- are you then saying that there is some other constitutional limit to that choice outside of the Confrontation Clause? And if you are, what would be that other constitutional limit?

MS. KRUGER: We do think that there are constitutional limits in the Due Process Clause, and it's guaranteeing the right to -

JUSTICE SCALIA: How many hundreds of cases will it take to identify those limits under that very clear Due Process Clause?

Who says lawyers don't have a sense of humor? All kidding aside, do we really want to deny defendants, who face prison time, or worse, an inability to question those who provide evidence against them?

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