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.