Last week, I discussed the Supreme Court’s ruling in Melendez-Diaz v. Massachusetts, in which the Court held that reports of laboratory tests were “testimonial” under Crawford v. Washington, and could not be submitted at trial without the live testimony of the person who conducted the test.  I’d noted that the Ohio Supreme Court had come to the opposite conclusion last year in State v. Crager.  The Ohio Public Defenders Office sought a writ of certiorari in Crager, and any lingering doubts as to the continued vitality of that decision were put to rest by an entry in the US Supreme Court’s docket in that case on Monday: 

Motion to proceed in forma pauperis and petition for a writ of certiorari GRANTED. Judgment VACATED and case REMANDED for further consideration in light of Melendez-Diaz v. Massachusetts, 557 U.S. ____ (2009).

On that same day, the Supreme Court also granted cert in another case involving the same subject, and the change in the composition of the Court when it hears that case next year gives some observers concerns about the continued vitality of Melendez-Diaz.

There are two statutory procedures in Ohio for the introduction of laboratory tests that are expressly implicated by Melendez-Diaz.  RC 2925.51 permits the introduction of reports of drug tests, and RC 4511.19(E) does the same for alcohol tests in drunk driving prosecutions.  Both of them spell out the procedure for introducing the report, and both contain the same caveat:  the defendant is entitled to live testimony by the person who conducted the test by demanding it within seven days of getting the report.  Five months ago, in State v. Pasqualone, the Ohio Supreme Court held that this procedure did not unconstitutionally burden a defendant’s confrontation rights.  But on Monday, the US Supreme Court granted review in Briscoe v. Virginia, which involves a similar Virginia statute. 

Similar, but not identical:  the Virginia statute permits the lab report to be  introduced regardless of what the defendant does, but allows him to call the lab technician as an adverse witness if he desires to.  As I’d noted, Scalia’s opinion in Melendez-Diaz clearly upheld the validity of notice-and-demand statutes, such as Ohio’s.  Rejecting the dissent’s claim that these statutes constitute “burden-shifting” and would thus be rendered unconstitutional by the Court’s decision, Scalia replied that

The defendant always has the burden of raising his Confrontation Clause objection; notice-and-demand statutes simply govern the time within which he must do so.

Virginia’s statute arguably does shift the burden, if not of proof, then certainly of producing witnesses.  The Sixth Amendment provides that a defendant has the right “to be confronted with the witnesses against him”; that language doesn’t indicate that he has to take an active role in ensuring that happens.  The Virginia statute on lab reports seems to be no different than a statute permitting the State to introduce witness statements at trial, and leaving it up to the defense to subpoena the witnesses if they want to cross-examine them.

But here’s where it gets tricky:  when the Court considers Briscoe next term, Justice Souter, who was in the five-member majority in Melendez-Diaz, will have been replaced (barring some unforeseen circumstance) by Sonia Sotomayor, and there are concerns from several quarters that Sotomayor is more conservative than Souter in criminal cases.  As this article from the Wall Street Journal indicates, “New York criminal-defense lawyers say she is surprisingly tough on crime for a Democratic-backed appointee,” and “on the trial bench, she was not viewed as a pro-defense judge.” 

Much of this is based on a misreading of a key decision of Sotomayor.  This past year, the Court ruled in Herring v. US (discussed here) that a police error in failing to detect that a warrant had been withdrawn didn’t call for the application of the exclusionary rule.  The Journal article notes that Souter dissented in that case, while Soutomayor had “ruled in favor of the police in a similar case 10 years ago.”  In fact, it wasn’t a similar case; it involved a clerical error by a court clerk, which the Supreme Court had previously held in Arizona v. Evans didn’t call for exclusion of the evidence, either.  Herring simply extended the Evans rule instances of police error as well.  Evans predated Sotomayor’s case, so she was simply following precedent, not charting new territory in anticipation of a Supreme Court decision that wouldn’t come for another decade.

Still, there are legitimate concerns, indicated by the White House’s attempted packaging of Sotomayor as a moderate, and this article about Sotomayor’s key role in getting her colleagues to throw out a $600,000 jury verdict against a police officer in a civil rights case.  It’s highly doubtful that Sotomayor would vote to reverse Melendez-Diaz a year after it was decided — I’m not sure that any justice would that dismissive of the concept of stare decisis – but Briscoe could give us a good, and early, indication of where Sotomayor stands on criminal issues.

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I’m taking the day off tomorrow, and so is The Briefcase.  Have a good holiday, and I’ll be back on Monday with the Case Update.