The court’s membership has changed since the 5-to-4 decision in June in Melendez-Diaz v. Massachusetts, which said that the Sixth Amendment’s confrontation clause, which gives a criminal defendant the right “to be confronted with the witnesses against him,” does not allow the mere presentation of a lab report to prove, say, that white powder found with a defendant was cocaine.
Justice Antonin Scalia, who wrote the majority opinion in Melendez-Diaz, said there was only one reason to revisit the issue so quickly.
“Why is this case here except as an opportunity to upset Melendez-Diaz?” he asked. After a lawyer tried to answer what was a rhetorical question, Justice Scalia made his meaning plain: “I’m criticizing us for taking the case.”
Melendez-Diaz involved unusual coalitions on both sides, and Justice David H. Souter, who retired in June, was in the majority. He was succeeded by Justice Sonia Sotomayor, prompting talk that the court could quickly reverse course.
But after Monday’s argument there was little reason to think that Justice Sotomayor was inclined to do anything particularly dramatic. She asked the first 10 questions, but she seemed focused on how to put the earlier decision into effect rather than whether it should be overruled.
“I trust the trial process,” she said, suggesting that the issues raised by Melendez-Diaz will largely be sorted out on the ground. Most prosecutors, she said, would rather put on live testimony from analysts because it tends to be more compelling than paper records.
Richard D. Friedman, a lawyer for two Virginia men convicted of drug crimes, said the law there placed an unfair burden on defendants regardless of the tactical decisions prosecutors may generally be expected to make.
The new case, Briscoe v. Virginia, No. 07-11191, involved two prosecutions. In one, prosecutors offered proof that the “off-white, chunky solid material” and “white, rock-like substance” that the police found in Mark A. Briscoe’s kitchen and shorts was cocaine by submitting “certificates of analysis” from a forensic scientist who did not testify. In the other, prosecutors submitted a certificate without testimony about cocaine found in Sheldon A. Cypress’s car after it was stopped for having improperly tinted windows.
The immediate issue in the consolidated cases is whether the prosecutors were permitted to do something short of calling the analysts as witnesses during the prosecution’s case. Under the Virginia law at issue in the case, at least as interpreted by the Virginia Supreme Court, prosecutors were allowed to present paper reports during their case so long as they produced the analysts responsible for the reports during the defense’s case if requested.
Most drug prosecutions do not require testimony from analysts. For starters, some 95 percent of all cases end in plea bargains. Defendants also often have good strategic reasons to stipulate to the accuracy of crime lab reports.
The harder questions involve the burdens that may be placed on defendants who do say they want the opportunity to question analysts. The court’s decision in Briscoe, expected by late June, will probably offer lower courts and state legislatures guidance on that question.
Justice John Paul Stevens, who was in the majority in Melendez-Diaz, asked if prosecutors could initially submit sworn statements instead of testimony from other sorts of witnesses.
“Supposing you have an eyewitness,” Justice Stevens said. “Can you follow the same procedure?”
Leondra R. Kruger, a lawyer for the federal government appearing in support of Virginia, said yes, so long as the defendant later had the opportunity to question the witness.
Justice Scalia called the possibility of this sort of heavy reliance on recorded testimony a “European-type trial” — “trial by affidavit.”
The four dissenters in Melendez-Diaz had warned that the decision would subject the nation’s criminal justice system to a terrible burden, with analysts pointlessly forced to attend trials rather than tend to their forensic responsibilities.
The two sides offered varying evidence about the impact of Melendez-Diaz,
ranging from the inconsequential to the overwhelming. But none of them
pointed to significant empirical studies, raising the question of whether
the Supreme Court acted too fast in returning to the issues in the earlier
case.