Briscoe v. Virginia, a case on Confrontation Clause rights in criminal trials, has been one of the most closely-watched criminal law cases at the Supreme Court this Term. As detailed here, the Court’s decision to take the case suggested that it might use the case to overrule or sharply limit last Term’s major decision in Melendez-Diaz v. Massachusetts in light of the departure of Justice Souter and arrival of Justice Sotomayor. (See also my discussion of Briscoe here starting at the 5:30 mark.) Briscoe was argued just 2 weeks ago, and today the Court handed down a short one-paragraph decision that stated in its entirety:
PER CURIAM.
We vacate the judgment of the Supreme Court of Virginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts, 557 U. S. ___ (2009). It is so ordered.
Having already granted the petittion in Briscoe, this was the “VR” part of the “GVR” that folks were originally expecting when Melendez-Diaz came down.
Its not entirely clear to me what happened. Off the top of my head, I would guess his means that Justice Sotomayor agreed with (or at least didn’t want to mess with) Melendez-Diaz, and therefore there was no point in spending the time writing a new decision to essentially reaffirm what the Court had said just last Term. But whatever happened, the result is to leave Melendez-Diaz intact.
Soronel Haetir says:
More to the point, I’m not sure what actually happened in Virginia was inconsistent with MD. MD said that procedures requiring the defendant to insist sometime before trial that the lab techs testify were okay.
What am I missing?
January 25, 2010, 11:38 amJohn Thacker says:
AIUI, the difference is that M-D held that the prosecution has to call the lab tech as its witness to present testimony if the defendant insists, whereas the (since amended anyway) Virginia statute held that the prosecution had to give defendants a list of witnesses, but the defense had to call the lab tech as its own witness to testify.
There was an interesting engage where the assistant to the U.S. Solicitor General, Leondra R. Kruger, said that it would be surprising for M-D to go that far, and Justice Scalia insisting that, yes, his opinion did go that far.
January 25, 2010, 11:48 amTamerlane says:
It seems reasonable to infer from this that it is unlikely Sotomayor leans more to the right on CJS issues than Souter, as some have suggested.
January 25, 2010, 11:50 amCVMe says:
Or that SS is unwilling to be the fifth vote to overturn or severely limit a case that came down last year for chrissakes.
January 25, 2010, 11:54 amruuffles says:
I thought this was obvious at the start of the term when Sotomayor routinely joined Stevens (sometimes others) in death penalty dissents.
Pro-tip to Alito: If you want the new justice to immediately vote opposite the justice she replaced to reverse a 5-4 decision, you might not want to author a concurrence in another case around the same time, just to criticize her lower court decision. (shades of O’Connor).
January 25, 2010, 12:00 pmJay says:
Tamerlane, ruuffles–Yeah, but the 6th Amendment cases produce some pretty strange bedfellows generally, so I’m not sure how much can really be inferred about a Justice’s view of crim law generally from what that Justice does in a 6A case.
January 25, 2010, 12:29 pmVasco says:
Actually, from the oral argument, I’d say that it’s most likely that Breyer changed his mind than that Sotomayor would come out in favor of M-D.
January 25, 2010, 12:37 pmLTR says:
Breyer is from my impression Justice most likely to respect precedent he dissented against originally. This is just a hunch, not a scientific observation though. Someone should keep score of such things.
January 25, 2010, 12:48 pmBored Lawyer says:
Maybe I am missing something as one who does not regularly practice criminal law, but does the Confrontation Clause require that the prosecution put on the witness to testify in its case in chief, as opposed to putting in a report and then making the author available for cross?
It is common in civil bench trials for witnesses to put in their testimony in an affidavit or declaration, and then the party who is the proponent produce the witness for the other side to cross-examine.
Why would that not work in a criminal trial? Prosecution puts in a report by an ME or other expert, then defense can call him as a witness to cross-examine him on the contents of the report. Where is the deprivation of the right to “Confront” the witness against you?
January 25, 2010, 12:50 pmFedya says:
Why is it 557 US [blank]? (I’m not a lawyer, so if this is some legal convention and not just a typo, I’d be interested to find out.)
January 25, 2010, 1:33 pmBored Lawyer says:
Because the case has not yet been assigned a page number. 557 is the Volume number in that reporter (the U.S. reporter). The number afterwards is the first page of the opinion. Since the case is recent, it has not yet been assigned a number.
January 25, 2010, 1:35 pmEric says:
Fedya – the blank is the page number. The case just came down and has not been added to the reporter yet.
January 25, 2010, 1:37 pmJohn Jenkins says:
@ Bored Lawyer: Where the confrontation clause applies, it requires the accuser (in this case the lab tech) to be called. Affidavits and hearsay don’t cut it. See the second-to-last paragraph of Crawford v. Washington, 541 U.S. 36 (2004).
January 25, 2010, 2:07 pmPostscript says:
As Scalia notes in Melendez-Diaz, the language of the Sixth Amendment provides a defendant the right “to be confronted with the witnesses against him,” not “to confront” the witnesses. The language thus indicates that the Amendment imposes the burden of calling the witness on the prosecution.
January 25, 2010, 2:08 pmDonald says:
@Bored Lawyer
Agree w/ Postscript – and more generally, due process requires the state to prove guilt in a criminal case. This means the burdens of production and persuasion, for each element of the alleged offense, fall on the state.
Or in other words, the defendant must be afforded the choice to sit silent, and rely on the presumption of innocence – and (legally at least) no inference may be drawn as to guilt or inference from such a choice.
January 25, 2010, 4:10 pmBored Lawyer says:
I understand the textual inference, but my question is, as interpreted by Scalia, what interest of the accused is that protecting? I understand that the defendant may wish to cross-examine the witnesses against him. Assuming they show up at trial for cross-examination (regardless of who calls them), then that interest has been taken care of.
I guess one interest is who has the burden of making sure the witness appears. Suppose the witness is unavailable for some reason. I understand in that situation putting the burden on the defendant may mean that he loses his chance to cross-examine the witness.
But the issue is moot where the witness is available and does show up at trial. My point is, how is the defendant disadvantaged if his lawyer issues a subpoena and the witness actually shows up at trial and defendant’s counsel cross-examines him. What interest has he been deprived of?
Let me put it this way. The general practice in civil bench trials that I referenced is to allow direct by affidavit, but require the side putting in the declaration to make the witness available for cross at trial upon demand of the other side. There is no “unavailable” excuse. You cannot produce him, you cannot put in the affidavit. Would that past muster in a criminal trial under Melendez? If not, why not?
(Or, change the procedure slightly. Prosecutor calls the witness and marks his report as Exhibit A. “Dr. X, is this your report? Did you author it? Do you stand by its content and conclusions?” Then Prosecutor introduces the report into evidence, subject to cross on the contents.
Does that work? Why not?)
January 25, 2010, 4:26 pmBored Lawyer says:
First of all, this is a Sixth Amendment, not Fifth Amendment case.
Second, the prosecution here has introduced evidence: a sworn report. If not for the hearsay rule, it would be competent evidence against the defendant.
I understand, of course, that in criminal cases the hearsay rule has a Constitutional dimension in the Sixth Amendment. But, I would submit, if the witness actually shows up at trial and is cross-examined, that has been taken care of.
January 25, 2010, 4:29 pmMike says:
Not one comment on how the initial grant shows a complete disregard for stare decisis?
January 25, 2010, 4:47 pmJohn Thacker says:
IANAL, but would not this argument lead to the one, made by Leondra R. Kruger at oral argument in Briscoe, that the government could submit any testimony by affidavit and that would be okay so long as the government witness were available for cross-examination? You seem to be making the argument for all government witnesses, whether lab techs or police officers.
Testimony by affidavit may be possible without too much of a disruption of justice, but I don’t believe that American jurisprudence has traditionally allowed such.
January 25, 2010, 5:07 pmNunzio says:
It would be rather embarrassing to over-rule a case that does not yet even have a pin-point cite in the U.S. Reports.
January 25, 2010, 5:13 pmBored Lawyer says:
I violated my own rule about not commenting until I read the relevant cases. Shame on me.
In Melendez-Diaz, Scalia dealt with something similar to what I propose, which he terms “Notice and Demand” statutes. At least in their simplest form, they do pass Constitutional muster:
So as long as the prosecution can be required to produce the witness for cross-examination on timely demand of the defendant, the Sixth Amendment has been satisfied.
January 25, 2010, 5:19 pmBored Lawyer says:
True enough, but the question is whether there is a Constitutional problem with it.
The reality is that you usually want your witnesses to testify live in Court. It has more impact with the jury. Putting aside constitutional issues, as an advocate I would not want my side of the story told by an affidavit and the other side (cross) told by a live witness.
It is only the more ministerial or boring parts (lab analysis) that you might want to put in by affidavit.
January 25, 2010, 5:22 pmJohn Thacker says:
Except that he very specifically at oral argument for Briscoe disagrees with your interpretation of what he wrote there. You may think that he was unclear, but at the very least you must concede that Justice Scalia knows what he meant. He very clearly during orals said that that discussion in M-D meant that statutes that gave the defense time enough to insist that the prosecution call the witness to present the testimony were acceptable, not statutes that gave the defense time to call the witness as their own.
Your argument is one that the government made, but not one that the author of Melendez-Diaz agreed with. The minority, granting cert, presumably wanted such a narrowing (or clarifying) ruling, though.
Would not the common law understanding of hearsay and of what it means to confront a witness at the time of drafting the Constitution be part of the Confrontation Clause, at least under some theories of jurisprudence?
January 25, 2010, 6:35 pmJohn Thacker says:
Bored Lawyer:
See for reference pages 33-40 or so of the oral argument transcript.
Note that the government side, taking your view, argues that there’s no distinction between evidence by affidavit in any sort of case, losing Justice Breyer, whose dissent in M-D depending on there being such a distinction.
On a Justice Scalia “bright line” note, the government does agree that there would be Due Process and Confrontation Clause violations if affidavits were just suddenly introduced day of the trial, or if a subpoena were issued and the witness failed to show, but the fact that the witness failed to show wasn’t known in advance, so the affidavit was already read into evidence. Then there’s a big argument about what the Virginia statute implies happens (whether the prosecution loses the evidence or the case) if the witness fails to show up for any reason. (Pages 42-44) The statute says that the prosecution shall issue a subpoena and the witness shall show up, but doesn’t mention what the prosecution will face if the witness does not show up.
Justice Scalia also hits on another point in regards to what you’ve mentioned– was the Confrontation Clause designed to go beyond the hearsay rule?
Also, you keep talking about cross-examining the witness. However, the Virginia Statute does not actually say, though it permits, that the lab tech or other government witness would be automatically called as an adverse witness subject to cross-examination (and leading questions and so forth). (page 40-41)
Mr. McCullough also makes the argument about live witnesses being more persuasive that you do, at page 45, offering that for this reason trial by affidavit would not become common.
January 25, 2010, 6:51 pmJohn Thacker says:
And finally, page 46:
And Ms. Kruger has the unenviable task of arguing with Justice Scalia about what Justice Scalia wrote.
January 25, 2010, 6:53 pmJohn Thacker says:
January 25, 2010, 6:54 pmJeff Walden says:
Fedya: semi-trivia, but since it’s a term you’ll probably run across at some point if you follow this for long, preliminary opinions/notes with precise references not provided are also known as slip ops (opinions). (I think the final versions also occasionally correct typographical errors in the preliminary opinion, but I’m not certain.) You’ll sometimes see opinions refer to a page in a very recent decision using a phrase such as “slip op., at x-y”, as in this example from Heller:
9-10 referring to the pages in the preliminary opinion, the blanks to be filled in when the opinion goes to press. (I copied the above from LII, which posts slip ops immediately. I’m not sure if they go back and update when the final version is published nor not [guessing not if Heller hasn't been updated yet].)
January 25, 2010, 7:02 pmSoronel Haetir says:
John,
I think you and Bored Lawyer are talking past each other terminology wise. At least after BL went and read the cases. After that point I don’t see anything that BL said that requires that the witness be called by the defense.
Certainly his bit about the prosecutor asking “Is this your report? Do you stand by what it says?” would be questions I would expect to be asked in a direct examination when the witness is produced.
January 25, 2010, 7:49 pmDisplaced Midwesterner says:
Isn’t relying on Scalia’s interpretation of his opinion a bit like relying on statements in the legislative record by a handful of those who voted for a bill?
January 25, 2010, 9:46 pmJeff Walden says:
Touché. Very well played, especially given the justice in question. Still, I’ll give a shot at defending it.
First, there’s a fair amount of quantitative difference between one of five and one of fifty in the Senate or a hundred-plus in the House (or whatever else the numbers might be for other legislatures).
Second, legislation is usually not written by a single legislator; it’s the product of an extensive series of compromises, exchanging of clauses of interest, and so on. This is probably still true to some degree in the Supreme Court, but I would guess it’s to a significantly lesser degree than in a legislature for any number of reasons: lifetime appointment intentionally precluding electoral accountability, the less open-ended nature of the decisions made (versus a far more vast range of policy choices), and constraint to “mere” interpretation of a couple laws at issue and the Constitution versus considering a blank slate upon which to work filled with dozens or hundreds of pages of law, to name a few. Scalia is much more the primary producer of his own opinion than lawmakers generally are of their legislation.
I think these arguments begin to break down not a whole lot above the Supreme Court’s size, at least when considering a down-the-middle split as in Melendez-Diaz. For example, I don’t think I’d account it much with respect to a statement of the author of a reasonably close super-en-banc Ninth Circuit opinion. At this size or smaller, however, I think I might be comfortable accepting them.
January 26, 2010, 12:56 amakumal vacation says:
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January 26, 2010, 3:34 amsubpatre says:
Orin Kerr says “Its not entirely clear to me what happened.”
It is entirely clear to Virginians. After Melendez-Diaz v Mass came down, one of its candidates (R) for Attorney-General held a press conference announcing Virginia had to change its law. For this he was denounced as “grandstanding” by his (D) opponent. The law was changed by the (R) legislature during a special called by the (D) Governor, bringing Virginia procedure into compliance.
In the election the candidate calling for change slam-dunked his opponent, making it appear Virginians care about legal acumen in legal officers.
So what happened is that Virginia reformed and made the reform leader into it’s chief legal officer. The case itself is realistically moot and —still considering politics here— the Court doesn’t want to be seen forcing a decision upon a cooperative state.
January 26, 2010, 10:11 am