Online

The Confrontation Clause and the High Stakes of the Court’s Consideration of Briscoe v. Virginia

IN October Term 2008, the Supreme Court handed down Melendez-Diaz v. Massachusetts—the latest case in the Crawford line under the Confrontation Clause. In Melendez-Diaz, the prosecution sought to introduce an affidavit by a forensic analyst that stated a given substance was cocaine. The defendant objected, arguing that the Confrontation Clause required that the analyst testify in person. Justice Scalia, writing for a five-Justice majority that included Justices Ginsburg, Souter, Stevens, and Thomas, held that the reports of forensic analysts are “testimonial,” and thus a prosecutor can only introduce such a report if the analyst is subject to “confrontation,” or if the defendant waives that right.

The Court handed down Melendez-Diaz on a Thursday. The following Monday, the Court granted certiorari in Briscoe v. Virginia. In that case, the Supreme Court of Virginia—writing one year before Melendez-Diaz—had assumed that an analyst’s report was “testimonial,” but it held that the confrontation right was satisfied by a Virginia statute that allowed the defendant to call the analyst as an adverse witness during the defense phase of trial. The Court heard arguments in Briscoe on January 11, 2010.

This essay will explore the options and compromises available to the Court in Briscoe. Moreover, it will explore how these various options can be used as a vehicle to shape future jurisprudence under the Confrontation Clause.

Clear Rules—Not Necessarily Simple or Accessible Ones

In The Complexity of Jurisdictional Clarity, Professor Dodson argues that the traditional call for clear and simple rules über alles in subject matter jurisdiction is misplaced. With his typical aplomb, Dodson disentangles the concept of clarity from the analytically distinct, though often conflated, debates over rules versus standards and mandates versus discretion. He critically examines the many difficulties that render the creation of clear and simple jurisdictional rules utopian. And he tallies the traditionally uncounted costs of jurisdictional clarity. Dodson’s piece is perceptive, challenging, and thought provoking.

In this response essay, I begin by arguing that Dodson, while offering many valuable insights, does not adequately distinguish between the separate notions of simplicity, clarity, and accessibility. Second, I note that crafting a clarity-enhancing rule, even if complex and inaccessible, may be a more promising endeavor than the search for a regime that is at once clear, simple, and accessible. In the third section, I contend that a focus on clarity in isolation, in lieu of simplicity or accessibility, both furthers Dodson’s project of illustrating that the value of clarity is often a false idol and reveals the inherently empirical nature of the question. I close by noting that although Dodson’s piece importantly demonstrates that jurisdictional clarity comes at a cost, his inability to resolve these underlying empirical questions makes it unlikely that he will quiet those advocating clarity-based jurisdictional reform.

Don’t Tilt the Playing Field: A Response to Polsky and Markel

From modest beginnings in eighteenth-century England, punitive damages have developed into a potent legal weapon. Professors Polsky and Markel would now make that weapon even more powerful by allowing expert testimony concerning the deductibility of punitive damages from taxable income. The Professors envision an expert explaining to the jury the rule regarding deductibility and explaining how the jury could increase the amount of a punitive damages award to offset the effect of the deduction. Their principal rationale is that, otherwise, the defendant’s true cost will be less than the jury intended and less than it deemed necessary for punishment.

This is a solution in search of a problem. As the Professors acknowledge, plaintiffs “have not been seeking to introduce tax evidence against defendants when seeking punitive damages.” The probable explanation is that plaintiffs’ attorneys would prefer to appeal to jurors’ anger rather than their intellect. That preference is not likely to disappear.

But even if some plaintiffs were to offer expert testimony of the kind that the Professors contemplate, such testimony should be excluded. First, receiving testimony about deductibility would tilt the playing field in favor of plaintiffs, since juries usually are not informed either (a) that compensatory damages based on lost wages are not included in determining plaintiffs’ taxable income, even though the wages they replace would have been taxed, or (b) of collateral sources of compensation such as health insurance and disability benefits. Second, admitting expert testimony about the deductibility of punitive awards would exacerbate the distorting effects of admitting evidence of the wealth of corporate defendants. Third, giving effect to the jury’s intent is less significant with respect to the amount of punitive damages than with respect to most other issues submitted to the jury.

©Virginia Law Review Association. All rights reserved.