Q and A on Briscoe v. Virginia with Brooks Holland

Can you briefly review how this case got to the Court?
Two criminal defendants in Virginia state court, Marc Briscoe and Sheldon Cypress, were convicted of drug offenses. In each trial, the State introduced a certificate of drug analysis without calling the analysts who prepared the certificate as a witness. The State argued that the defendants should summon the analysts for cross-examination as an adverse witness. The defendants appealed to the U.S. Supreme Court when the Virginia Supreme Court rejected the defendants’ claim that this procedure violated the Confrontation Clause.

The main issues?
Whether Virginia violated the defendants’ confrontation rights when it introduced the certificates of drug analysis at trial without calling the analysts who prepared the certificates, even though state law permitted defendants to call the analysts as an adverse witness. This issue required the Supreme Court to evaluate a confrontation decision from last Term, Melendez-Diaz v. Massachuestts, 129 S. Ct. 2527 (2009), which held that a certificate of drug analysis constitutes "testimonial" evidence requiring an opportunity for cross-examination.

What happened in the case?
On January 25, 2010, only two weeks after hearing oral argument on January 11, 2010, the Supreme Court issued a one-sentence opinion: "We vacate the judgment of the Supreme Court of Virginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz." This outcome granted a partial victory to the defendants, because it made clear that Melendez-Diaz addressed the issue raised in Briscoe and remains good law. Now Virginia courts will reconsider the defendants’ claim under Melendez-Diaz.

What was the media coverage of the argument and decision like? If there was any do you think it was a fair representation?
This case generated a fair amount of media coverage, from start to finish. The coverage presented the case and issues generally fairly. Much of the coverage, both before and after the decision, attempted to divine why the Supreme Court agreed to review this case. Some observers thought the Court would "GVR" Briscoe immediately following its decision in Melendez-Diaz—grant the petition, vacate the decision of the Virginia Supreme Court, and remand the case for further consideration under Melendez-Diaz. The Court instead accepted the case for full review, prompting some to wonder whether the dissenting Justices in Melendez-Diaz saw Briscoe as an opportunity to unite with Justice Sotomayor and quickly undo Melendez-Diaz. Coverage of the oral argument did not seem to interpret it definitively to eliminate the potential for either outcome, but some thought " [t]here were some clues during oral argument that the case might fizzle rather than sizzle." The Court's summary decision two weeks later confirmed the "fizzle," ending Briscoe with a " whimper." University of Michigan law professor Richard Friedman, who argued the defendants' case before the Supreme Court, characterized this outcome as a " G ... VR."

Nevertheless, some observers still have questioned why the Supreme Court took the case only to write one sentence about it. George Washington University law professor Orin Kerr surmised: " I guess this means that Justice Sotomayor agreed with (or at least didn't want to mess with) Melendez-Diaz, and therefore there was no point in spending the time writing a new decision to essentially reaffirm what the Court had said just last Term." But Stanford law professor Jeffrey Fisher—who argued Melendez-Diaz himself—suggested that Briscoe may not have reflected a plot to overturn Melendez-Diaz, but rather a failure fully to understand the Virginia statute being challenged: " My guess is that [the Supreme Court] thought the Virginia law worked differently than it turned out to work."

What do you think the Court saw as the strongest argument?
Apparently, that the Supreme Court should not overrule Melendez-Diaz. Although some of the dissenting Justices in Melendez-Diaz asked pointed questions during oral argument, no Justice dissented from the Court's per curiam opinion in Briscoe.

Which argument seemed to get the least traction with the Justices?
Not only the argument that the Supreme Court should overrule Melendez-Diaz, but also that Briscoe provided an effective case for the Court to clarify what kinds of trial procedures will or will not comport with Melendez-Diaz—the Court simply remanded the case for application of Melendez-Diaz.

Were there any questions or discussions that surprised you?
Nothing too surprising. Justice Sotomayor, the anticipated tie-breaker in this case, questioned both sides vigorously. Justice Scalia, however, may have predicted the outcome of Briscoe during oral argument when he openly questioned whether the Court had anything to say about this dispute, "except as an opportunity to upset Melendez-Diaz." Justices Scalia stated, "I'm not criticizing Virginia. I'm criticizing us for taking the case."

What, if anything, does this case suggest for the future?
Defense attorneys will continue to press Melendez-Diaz when challenging scientific evidence to ensure " that the government ... has to bring live witnesses to trial to testify and be subject to cross-examination." The Supreme Court, therefore, still may need to explore what trial procedures will comport with this confrontation right. For example, Professor Friedman has noted the recent filing of a cert petition focusing on who must testify to the substance of a lab test to satisfy Melendez-Diaz.