Briscoe v. Virginia, Argument Recap

By Lyle Denniston
on Jan 12, 2010 at 10:41 pm

(Restored from Monday post)

Analysis

When the author of a Supreme Court opinion insists that the ruling had already decided an issue raised in a sequel case, the obvious question is: why was the second one granted?  Justice Antonin Scalia, the author of last June’s controversial, 5-4 decision in Melendez-Diaz v. Massachusetts, had an answer on Monday when the Court heard Briscoe, et al., v. Virginia:  “Why is this case here except as an opportunity to upset Melendez-Diaz?”

As Justice Scalia clear, he understands that the June decision laid down the rule that, if the Confrontation Clause is to be satisfied when the prosecution wants to offer a crime lab report as evidence, the prosecution itself must call that witness as part of its own case, not require the defense to do so.  That is precisely the question posed in the Briscoe case.  And Scalia went on to explicitly criticize the Court “for taking the case.”

Scalia’s comments demonstrated that the fate of Melendez-Diaz may well be the critical issue at stake seven months after it was decided. And that, in turn, raised two questions: would the Justices in the majority and in the dissent in that case hold fast to their opposing positions, and, if they did, how would Justice Sonia Sotomayor, newly arrived on the Court, break the tie?  That, predictably, put much of the focus in the Briscoe argument on what Sotomayor had to say.

By the end of the hearing, however, Sotomayor had been on both sides of the issue.  When the lawyer for the drug traffickers involved in the case was at the lectern, she seemed skeptical about the argument that the Constitution required the prosecution necessarily to call to the stand any witness on whose out-of-court statement it intended to rely. But when two lawyers outlining the prosecutors’ view, were arguing, Sotomayor appeared to sense an effort to undermine what Melendez-Diaz had established.

Michigan law professor Richard D. Friedman, arguing for the two convicted men, opened by saying that he was not asking the Court to go beyond what Melendez-Diaz established, and thus suggested what Scalia would later emphasize: that decision, indeed, required the prosecution to summon to the witness stand any witnesses whose statements it was offering as evidence.  Putting the burden of calling that adverse witness during the defense case, Friedman said, would amount to overruling Melendez-Dias and would bring about “a fundamental transformation” of ancient trial practice

Sotomayor immediately suggested that the Confrontation Clause may be only about some chance to cross-examine a prosecution witness, and not “an affirmative obligation” on the prosecution to call that witness.  She also expressed doubt about Friedman’s secondary argument that, once the prosecution did put the witness on the stand, it had a constitutional duty to ask enough questions so that the defense could then have a meaningful chance to challenge the witness’ testimony – a claim that Sotomayor said was not established in history or by any case.   “You are asking us now to state something that you admit is in really no constitutional case or  historical case,” she said.

Friedman also had trouble with Justices Samuel A. Alito, Jr., and Stephen G. Breyer, who, of course, were dissenters last June.  Those two Justices tried to make a point (but it did not much distract Friedman) about the supposedly heave burden Melendez-Diaz was putting upon prosecutors’ ability to try cases in which drugs and other physical evidence would come into a case through crime lab analysis.

Virginia’s solicitor general, Stephen B. McCullough, immediately encountered difficulty with Justice Sotomayor, when he contended that the Virginia Supreme Court had interpreted its law on summoning witnesses in a way that fully protects the accused’s confrontation rights.  And she soon launched into a series of questions that she would pursue through the remainder of the argument, testing just how the Court could write a new ruling that would keep prosecutors from evading the Confrontation Clause by simply putting on a string of affidavits in order to avoid even calling witnesses for live testimony.

In response, she said, defense counsel would then have to summon the witness on their side of the case for a “cold-cross” – a cross-examination without knowing at all what the witness might say.  She seemed skeptical of McCullough’s suggestion that there were constitutional ways to avoid such a trial by affidavit.

Justice Scalia sharply disputed the state lawyer’s argument that the Confrontation Clause was limited to assuring cross-examination, and that the Virginia law satisfied that obligation.  It was apparent that Scalia was launching into assertions about what Melendez-Diaz already had established about who had a duty to call prosecution witnesses.

An assistant to the U.S. Solicitor General, Leondra R. Kruger, arguing for the federal government as amicus on Virginia’s side, would feel the brunt of Scalia’s defense of his interpretation of Melendez-Diaz.  He seemed perturbed about the government lawyer’s argument that a right to confront a prosecution witness – without more – was all that the Constitution guaranteed, and her point that Friedman was simply trying to read into the Constitution a mandate on the “order of proof” at a criminal trial.   He quoted passages from his opinion in Melendez-Diaz to her, with pointed emphasis.

Gamely, Kruger countered that “I think it would be surprising to discover that Melendez-Dias went quite so far” as Scalia was saying it did.  Again, she said that the confrontation right extended only to ensuring that “the witness is available for cross-examination at trial.”  She went further, suggesting that the Court should shy away from inventing “a new body of Confrontation Clause jurisprudence” to govern the order of proof.

She appeared to surprise Justice Sotomayor with the suggestion that the government could rely on affidavits to make its case in virtually any criminal case, so long as the defense could then summon ythe witness for cross-examination on the affidavit.  “So,” Sotomayor said, “ you are absolutely saying that, under the Confrontation Clause, trial by affidavit of any witness would be okay.”  Kruger seemed to backtrack a little, saying there might be Due Process Clause problems with such a proceeding.  Sarcastically, Scalia retorted: “How many hundreds of cases will it take to identify those limits under that very clear Due Process Clause?”

When Kruger returned the emphasis to her argument that the prosecution’s only duty was to make sure that its witnesses could be called at some point to testify, and said that was all that the Court needed to say in this case, Scalia promptly asked: “Why do we have to say anything?”  And that was when he made his point that the case had been granted only to provide a chance “to upset Melendez-Diaz.”