Last June, the Supreme Court ruled in Melendez-Diaz v. Massachusetts (discussed here) that results of laboratory tests were testimonial evidence under Crawford, and thus the person who performed those tests had to be subject to cross-examination at trial.  On Monday, the Supreme Court had oral argument in Briscoe v. Virginia, and it may wind up taking another look at Melendez-Diaz.

The statute in Melendez-Diaz had presented a relatively stark issue for Confrontation Clause analysis:  in a drug case, it allowed the prosecution to introduce an affidavit from the analyst stating the quantity and composition of the substance at issue.  In striking down the Massachusetts law, however, the majority gave approval to “notice and demand” statutes, which allow the state to introduce the report, but give the defendant the right to demand live testimony by the analyst.

Virginia’s statute is — or more precisely was; more on that in a minute — a hybrid:  It permitted the report to be introduced, but gave the defense the right to subpoena the analyst and cross-examine him as an adverse witness.  While there are problems with that procedure, the bigger concern in defense circles, as I explained when the Court granted cert, was that the replacement of David Souter, part of Melendez-Diaz’s five-man majority, by former prosecutor Sonia Sotomayor could result in a narrowing or even reversal of last year’s decision.  (Twenty-six states and the District of Columbia have filed amicus briefs in Briscoe asking for reversal.)

One of the problems with Briscoe is that the Virginia statute has undergone a complete reworking.   Subsequent to Briscoe’s trial, the state supreme court interpreted the statute as meaning that the defense could demand that the state subpoena in the witness and present him in the state’s case.  This goes a long way toward solving some of the practical problems which had been raised, such as the defense being forced to put on an adverse witness in its case-in-chief.  Briscoe’s attorney had barely gotten to the podium before Sotomayor quizzed him extensively on the interpretation, asking him how the law now differed from a “notice and demand” statute.  Complicating the matter even further was the fact that even the reinterpreted Virginia statute is no more:  it was amended last August to be fully Melendez-compliant, leaving Scalia, the author of the latter decision, to wonder why the Court had even bothered to hear the case. 

The possibility of the Court deciding, after oral argument, that it shouldn’t have taken the case in the first place is rather remote.  (Actually, that’s already happened twice this term, once in the case involving the reach of criminal forfeiture statutes, and the other in whether prosecutors should receive immunity from suit for presenting falsified evidence.  Both cases, though, were dismissed because the parties had reached settlements.)  But the oral argument did settle some things.

First, if there was any lingering doubt that Ohio’s “notice and demand” statute, RC 2925.51, was constitutional, the argument dispelled them.  Briscoe’s attorney specifically cited Ohio’s law as an example of one which passed muster under Melendez-Diaz. 

Secondly, the minority in Melendez-Diaz  had raised the spectre of already-overworked laboratory staffs being inundated with requests to appear to testify at trial.  The majority had found those concerns unwarranted, but the evidence to date is decidedly mixed.  Counsel for Virginia claimed that after the new statute went into effect in August,

what we have seen. . . is rampant demands for the witness to appear, followed by, “oh, well, he’s here; I will stipulate,” or no questions of the witness. So our experience under this old statute compared to our new one is that we had far more — or far less under our old statute of this sort of tactical demands for confrontation.

Whether that will continue to be a problem is open to debate; Scalia noted that the evidence showed that a similar spike occurred in other jurisdictions after Melendez-Diaz, but went back down after a short while.  The experience in Ohio would seem to corroborate that:  Briscoe’s counsel indicated that in Ohio, BCI’s statistics show that it has on average less than one court appearance per analyst per month.

Last, the argument showed that the Court is still wrestling with the scope of the confrontation right post-Crawford.  Several justices focused on the practical issue.  Kennedy posed the question of what happens if one person isn’t responsible for the entire procedure:  ”One person prepares the sample, another person puts it on the paper, another person reads the machine, another person calibrates the machine.”  Do all of them have to testify?  Others framed the issue in more hypothetical terms:  Does the Confrontation Clause guarantee anything more than the opportunity for cross-examination?  Would it be satisfied if the state were to put a witness on the stand, have him simply identify the report or statement he’d made about the incident, and then turn to defense counsel and say, “You’re witness”? 

It’s highly unlikely that the Supreme Court would overrule a decision it made just seven months ago; Sotomayor’s questions betrayed no proclivity to do so, and in other oral arguments in criminal cases she has appeared decidedly liberal.  One of the problems in coming up with a “clarifying” decision is that it would be mostly dicta, given the changes in the Virginia statute.  But some clarification is likely, because it appears that the Court is just coming to terms with what Melendez-Diaz, and perhaps Crawford itself, really means.