The Supreme Court took up the issue of a defendant’s right to confrontation earlier this year in Melendez-Diaz v Massachusetts. In this case, the Court held that a crime laboratory report can only be used against a criminal defendant at trial when the analyst responsible for creating the report gives testimony and subjects him or herself to cross-examination.
This ruling has had particularly noteworthy consequences for DUI prosecutions in Virginia. In July 2008, prior to the Melendez-Diaz ruling, Virginia's technicians were subpoenaed only 43 times; in contrast, technicians were summoned 925 times in July 2009. When specialists are required to testify in court on such a regular basis, they are unable to spend time in the lab completing the necessary analysis.
Following Melendez-Diaz, the Virginia legislature took action almost immediately. Governor Tim Kaine of Virginia called a special session of the legislature to amend the state's statute governing the use of crime laboratory reports.
Now the appointment of Justice Sonia Sotomayor to replace former Justice David Souter has the potential to mitigate the effects of the Melendez-Diaz ruling. “Her views could lead to the narrowing of the last term's decision holding that crime lab analysts must provide live testimony concerning lab tests and results,” Bradford A. Berenson told The Washington Post. “This term, Briscoe v. Virginia provides an opportunity to limit the scope of that ruling.”
At issue in Briscoe v. Virginia is whether the state can avoid violating the Confrontation Clause of the Sixth Amendment by providing the accused the opportunity to call the analyst as his own witness.
“The case will give an early indication of whether Justice Sonia Sotomayor, the court’s newest member and a former prosecutor, will diverge from the approach that her predecessor, Justice Souter, took to criminal cases,” The New York Times reported.
