Bring Me the Body Holds Firm (or, that other case the Supreme Court decided in the past week)

The most recent installment of the confrontation clause showdown rolled through the Supreme Court on January 11 this year. But just two weeks later, SCOTUS kicked Briscoe v. Virginia to the curb.  While not unexpected, the ruling was a disappointment for advocates (primarily prosecutors) hoping that the Supreme Court would retreat from its decision last year Melendez-Diaz v. Massachusetts. Fortunately, by punting Briscoe, the Supreme Court left the Melendez holding intact. 

In effect, Melendez held that that confrontation clause requires that the lab analyst who performed forensic tests be present and subject to cross-examination (i.e., bring the body). In many states, prior practice was to simply submit the lab report as evidence.  Justice Scalia, in what is perhaps the only issue I agree with him on, wrote the majority for Melendez.

While the result in Briscoe is not unexpected – it presents a bit of a mystery as to why the Court took it so soon after deciding Melendez.  Predictions abound over whether Sotomayor might tilt the 5-4 Melendez split in a different direction. The issue in Briscoe is slightly different from Melendez. Under Virginia law, the burden of subpoening the lab analyst shifted to the defense. As a result, if the defense failed to call the individual who is arguably the State’switness, then the the report was put into evidence and the defendant was out of luck. Other states have this same scheme, but Virgnia has since changed the practice. No doubt that this latter development factored in to the Court’s decision to remand the issue to the Virgnia  Supreme Court.

While the issue is dormant for the time being, I predict we’ll see a challenge to Melendez in the near future.