Vol. 4, No. 1 | December 2009

Upcoming Cases: A Virginia Case Will Be Decided by the U.S. Supreme Court This Term

by Jack E. Call
Professor of Criminal Justice
Radford University
E-Mail:  jcall@radford.edu

Briscoe v. Virginia

            This case does not directly affect how the police conduct their investigations, but it relates to a case decided during the just-concluded term of the Court that attracted a great deal of public attention and controversy.  On June 25, 2009, the U.S. Supreme Court issued its opinion in Melendez-Diaz v. Massachusetts.  The Court held that the government may not prove the results of a laboratory analysis of evidence through an affidavit from the laboratory analyst who was not subject to cross-examination at trial.  (In Melendez-Diaz, the prosecution had used a certificate of analysis to prove that a substance found in the defendant’s possession was cocaine).

            The Court held that such a procedure is prohibited by the Confrontation Clause of the Sixth Amendment to the Constitution.  This clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.”  The Court seemed to suggest in the opinion that this constitutional right would be satisfied if the laboratory analyst testified at trial or if the state has what the Court referred to as a “notice-and-demand statute.”  The latter “require the prosecution to provide notice to the defendant of its intent to use an analyst’s report as evidence at trial, after which the defendant is given a period of time in which he may object to the admission of the evidence absent the analyst’s appearance live at trial.”

            The Court also suggested that the Confrontation Clause is not satisfied merely because the defendant “had the ability to subpoena the analysts.”  The Court indicated that the defendant’s power to subpoena is insufficient protection because it is “of no use to the defendant when the witness is unavailable or simply refuses to appear.”

            Va. Code § 19.2-187.1 provides in relevant part:  “The accused in any hearing or trial in which a certificate of analysis is admitted into evidence pursuant to § 19.2-187 . . . shall have the right to call the person performing such analysis or examination or involved in the chain of custody as a witness therein, and examine him in the same manner as if he had been called as an adverse witness. Such witness shall be summoned and appear at the cost of the Commonwealth.”

            The issue in Virginia v. Briscoe is whether this Virginia statutory provision satisfies the requirements of the Confrontation Clause.  Oral argument before the Supreme Court is scheduled for January 11, 2010.

Disclaimer:  The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.