High Court at (Almost) High Noon: Scalia Takes on the Briscoe Kid
The Confrontation Clause rides again – and this time it’s headed back to the Supreme Court for an 11:30am showdown on Monday.
Back in June of 2009, the Supreme Court issued its latest Confrontation Clause pronouncement: in Melendez-Diaz v. Massachusetts, the court prohibited the admission of crime lab reports as evidence in a criminal case unless the scientist who prepared that report is available for questioning by the defense.
In my opinion, it was the right decision. I’ve seen good lab analysts and I’ve seen bad ones, and the defendant has a right to fully question that person’s scientific capabilities. I analogize it to an airplane: while we generally accept that air travel is safe (unless you were recently on NW Flight 253 on December 25), that planes are properly maintained, and that we will get from point A to point B, who among us is going to board a plane with a drunk pilot at the controls?
Same with a lab analyst. The method may well be reliable, the science may be solid, but if that analyst lacks the skill to perform the job, then Houston (literally) we have a problem. Put another way, would you want an unqualified or incompetent lab analyst to confuse or comingle your blood sample that results in perhaps the misdiagnosis of a disease, or, worse yet, no diagnosis of a life-threatening illness? I think not.
We demand comptency, and the same should hold true in a criminal trial where freedom is at stake. Competency does not exist by virtue of a white coat and lab report. It is, in a sense, a personal question that requires bringing the person to court to answer it. The ability to complete what is often times a boilerplate or computer-generated report does not give rise to automatic credibility. There is a reason why the government has the burden to prove guilt beyond all reasonable doubt. The Supreme Court this past June affirmed the obvious: to meet that burden, the lab rat must come to court (having done some time as a lab rat myself, I mean no offense to rodent populations).
In a bit of a surprise move, the Supreme Court will revisit this issue in Briscoe, et al., v. Virginia on Monday. Suprising since the prior decision is still fresh, but yet the Court is already considering whether to limit the scope ofMelendez-Diaz. The issue in Briscoeis whether the prosecution or defense must take the initiative to summon the scientist for questioning. While it sounds like a redux of Melendez-Diaz, Briscoe is a narrow focus on certain state laws (such as Virginia’s) that shift the burden of demanding the appearance of the lab analyst (or other appropriate witness associated with the lab report) in court.
More specifically, prosecutors must give pre-trial notice of plans to offer evidence related to the lab report and/or its results. Virginia law further provides that the prosecution can offer that report without presenting a witness (i.e., putting in the paper without the person). The law then puts the onus on the defense to call that witness – as a defense witness! The state does at least pick up the tab of calling that witness.
It will be interesting to see what comes out of the oral argument. It’s also an interesting question why the Court decided to take this case so soon after Melendez-Diaz.I’m sure that the shrieks of prosecutorial horror when the Court dropped the decision in June had something to do with it. Two things for sure: there will be lively debate and Scalia will be an active participant since the Confrontation Clause is a “pet project” of his. Sotomayor can be the wild card here.
One last word: Virginia changed its law on this subject subsequent to the Supreme Court granting cert. The Supremes could punt the issue back to Virginia Supreme Court to see how it shakes out under the new law.
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