Applying Melendez: Briscoe and Beyond

Wed, 06/15/2011 - 2:25pm
Ronald K. Bullis, Ph.D., J.D.

A look at the effects of Briscoe v. Virginia and subsequent case law on the enforcement and application of Melendez-Diaz v. Massachusetts.

A look at the effects of Briscoe v. Virginia and subsequent case law on the enforcement and application of Melendez-Diaz v. Massachusetts.Forensic Magazine has closely followed Melendez-Diaz v. Massachusetts1 [hereinafter Melendez] and has monitored its impact to forensic professionals.2 Melendez held that the Confrontation Clause of the 6th Amendment requires that experts who write forensic reports be available for cross-examination when their reports become evidence. Now the issues are whether Melendez will be modified or even overturned and how prosecutors and statutes will comply with its requirements. State prosecutors, concerned with shrinking budgets and high costs of prosecutions, assert that Melendez will result in a backlog of cases, dismissed or plea-bargained cases, crippling prosecutorial costs, and additional training and time required for forensic scientists as they prepare for court testimony.

Many viewed Briscoe v. Virginia3 [hereinafter Briscoe] as just such a case. On appeal to the U.S. Supreme Court from the Supreme Court of Virginia, the case was widely viewed as a case that could either modify or reverse Melendez. After all, Melendez was a 5-4 decision and the newest member, Justice Sonia Sotomeyer, was a former district attorney.

The stage was set, and the actors were ready. The audience arrived expectantly, but the play never started. Two weeks after oral argument, the U.S. Supreme Court handed down its one-paragraph decision vacating the judgment of the Virginia Supreme Court and sending the case back for further proceedings consistent with Melendez.4

Yet, even a Supreme Court remand is worth discussing. Reviewing the facts and briefs of Briscoe reinforces current Melendez requirements and explores how Melendez may later be applied.

Brief Facts and Significance of the Briscoe Case5
The case at issue in Briscoe was originally a consolidated, drug-related case addressing the cases of Mr. Briscoe and Mr. Cypress. In Briscoe’s case, Alexandria, VA, police found what they claimed were drug-related supplies and what appeared to be cocaine in his apartment. This substance was tested for content and weighed by a state forensics lab finding that he possessed 36.578 grams of cocaine. The resulting report, a “certificate of analysis” was used to convict Mr. Briscoe. He was sentenced to 20 years, but served less than 6 years.

In Cypress’ case, Chesapeake, VA, police allegedly found illegal substances after stopping his vehicle. A forensic scientist signed a “certificate of analysis” stating that the substances amounted to 60.5 grams of cocaine. Cypress was also convicted and served 5 of his 15-year sentence. Both men objected to the certificates of analysis being used at trial without the personal testimony of the forensic scientist involved, asserting that their Confrontation right was abridged and appealed.6

The Virginia Supreme Court made its decision using post-Melendez standards, but applied it to the pre- Melendez statute7 under which the defendants were tried. The Court held that their trial did not conform to the Melendez standards and remanded Cypress’ case back to the Virginia Circuit Court. Even so, it upheld Briscoe’s conviction, saying that other evidence was sufficient to establish his guilt beyond a reasonable doubt. The Virginia Supreme Court held that the “harmless error” standard would be met if his guilt would likely be proven beyond a reasonable doubt even without the lab analysis. Finding that Briscoe made incriminating statements to police upon arrest and that there were numerous physical items corroborating the presence of illegal substances, the Court held that the “harmless error” standard was met. So, even though Cypress and Briscoe won, neither was set free.

Proper “Notice and Demand” Statutes
A central issue in Briscoe was Virginia’s old statute detailing how lab results may be used in court. The Melendez decision noted that some state statutes have acceptable provisions called “notice and demand” statutes that outline the procedure by which lab analyses are entered as evidence when forensic scientists must take the stand. The Supreme Court held that, at the very least, “notice and demand” means that the prosecution must notify the defendant of its intention to use the lab analysis report in the trial and then the statute must provide the right of the defense to object to the report if the forensic scientist does not testify in-person at trial. This objection amounts to a “demand” that the live scientist testify if the prosecution wants to place the report into evidence.8

The statute under which Cypress and Briscoe were convicted allowed them the “right” to call the forensic scientist, but did not require the prosecution to do so. According to Melendez, this requirement shifted the burden of the defendant to prove innocence, as opposed to the prosecution’s burden to prove guilt.

The former Virginia statute required the accused to request the lab report and did not allow the defense to object to the report unless the prosecution called the forensic scientist to testify. The Virginia Supreme Court held that its former statute did not comply with the kind of so-called “notice-and-demand” statutes allowed under Melendez. That decision noted three “notice-and demand” statutes with favor. Among them is Georgia’s statute9 requiring the prosecution to inform the accused that the report will be used against them if they do not object within the timeframe outlined in the statute. If the defense objects, then the judge orders the scientist to testify.

The discredited Virginia statute also required that the accused call the forensic scientist as though he or she were an adverse [author’s emphasis] witness. This means that the scientist would be called upon after the prosecution has presented its main case and when the defense had begun theirs. Briscoe’s Petitioner’s Brief10 argued that this interval deprived it of its significant power to immediately refute a prosecution’s witness and do so10 “while the iron is still hot.”11

On the other side, the U.S. Government,12 the National Association of District Attorneys,13 and 27 states and the District of Columbia14 [hereinafter States’ Brief] submitted amici briefs supporting either a loosening of the Melendez standards or reversing them before they “thoroughly wreak havoc” on criminal justice systems.15 The havoc noted here includes guilty freed on technical grounds, dropped charges, acquittals, and reversed convictions not on the merits, but because of an overwhelmed and under-budgeted criminal justice system.16

The states’ brief argues that they should be given latitude to craft Confrontation Clause provisions that “balance” such demands with “the efficient allocation of scarce resources.” Since the year 2000, state and federal prosecutors have arrested 11 million people for drug-related crimes. These arrests resulted in a corresponding volume of substances analyzed.

The states demonstrated how Melendez specifically increased the costs and backlog in Virginia state courts. The number of subpoenas increased from 43 in July of 2008 to 925 in July of 2009 (Melendez was decided in June, 2009). The brief concludes that such subpoenas lead to increased costs for personal testimony and a backlog of drug-related cases (6,100 in July of 2009).17

Massachusetts asserts similar struggles, reporting continuances and trial delays to allow their 35 chemists to testify in court. The turnaround time for an analysis issued by that state has risen from 83 days in July of 2008 to 169 days only one year later.18 Even overtime might be prohibitively costly, the states’ brief cited an article, in Forensic Magazine showing that Michigan forensic scientists use 15 hours a week of overtime since Melendez was decided.19 New York State invokes similar issues. That state reports so much employment turnover in the Manhattan office that many times the scientist who performed the initial analysis is no longer employed at the lab when the case comes to trial.

Additionally, New York uses an “assembly-line” of up to 40 analysts to analyze a single DNA sample. Who, then, is to testify? Certainly not all 40. While costs alone are unlikely to amend otherwise constitutional guarantees, costs are legitimate public policy concerns in public policy decisions. Costs often translate into defense and prosecutorial strategies and decisions that may neither serve society, the criminal justice systems, or defendants.

Conclusion: Briscoe’s Impact upon Forensic Scientists and the Law
Legal soothsaying is folly, but Briscoe’s facts and remand still have something to tell us. While another “test” case will undoubtedly arise to offer the Supreme Court a chance to elaborate on Confrontation Clause requirements, Melendez seems in no imminent danger of being overturned or seriously modified. In the meantime, state and lower federal courts will look to the “notice and demand” statutes, suggested in Melendez (Georgia, Ohio, and Texas), as models for their own statutes. Thus, forensic scientists will continue to be ordered to testify as to the procedure and accuracy of the results in their reports. They will also be cross-examined. While this role is not new for many forensic scientists, this role is likely to affect more forensic scientists and will require additional training just as it surely will result in a loss of lab time. Articulating and explaining lab analyses procedures and the scientific choices attending test conclusions requires different skills than making the analysis itself. Finally, an intriguing and related question is: which scientist will testify to what? As we have seen, some state laboratories have several scientists working on the same sample. Other labs have turnover rates such that some scientists will be employed elsewhere when a sample upon which they worked is admitted at trial. That singular issue requires its own article to address.

The Briscoe case raised more issue than answers. But even these issues, and the accompanying Briefs, sharpened the kinds and quality of answers the next Melendez application the Supreme Court will be asked to address.


  1. Melendez-Diaz v. Massachusetts, 557 U.S. ____, 1295 S. Ct. 2527 (2009).
  2. See Waters, R. From the Editor: “Forensics in the News” and King, C. Confronting Science: Melendez-Diaz and the Confrontation Clause.
  3. Cypress v. Virginia; Briscoe v. Virginia, 699 S.E.2d 206, Va. Lexis 225 (2010). This is a consolidated case of these two defendants.
  4. Briscoe v. Virginia, 130 S. Ct. 1316, 175 L.Ed.966, U.S. Lexis 767 (2010).
  5. The defendants appealed their convictions to the Virginia Supreme Court, but were unsuccessful in Magruder v. Commonwealth, 275 Va. 283, 657 S.E.2d 113 (2008).
  6. The basic facts of this case are taken from the recitation from the Virginia Supreme Court’s decision, supra, note 3 (above).
  7. The Briscoe trial was held under Va Code § 19.2-187 (2008) which, in part, provided that “The accused in any hearing or trial in which a certificate of analysis was admitted at trial as evidence… 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.” After the Melendez decision, Virginia amended the former code to the following, in relevant part, to: “The accused may object in writing to admission of the certificate of analysis, in lieu of testimony, as evidence of the facts stated therein and of the results of the analysis or examination… If timely, objection is made, the certificate shall not be admissible into evidence unless (i) the testimony of the person who performed the analysis or examination is admitted into evidence describing the facts and results of the analysis or examination during the Commonwealth’s case-in-chief at the hearing or trial and that person is present and subject to cross-examination by the accused, (ii) the objection is waived by the accused… or (iii) the parties stipulate… to the admissibility of the certificate.”
  8. Cypress v. Virginia; Briscoe v. Virginia, supra.
  9. Melendez, supra, at 129 S. Ct. at 2540-41).
  10. See cite at note 7 and Ga. Code Ann. § 35-3-154.1(e); and Ga. Code Ann. § 35-3-154.1 (e); Ohio Code Ann. 2925.9 (A)-(C); Texas Code of Criminal Procedure Ann. §§ 1 &4 of Article 38.41.
  11. Friedman, R. (counsel of record). Brief of Petitioners. Ann Arbor, Michigan., at 18-19.
  12. Brief of Petitioners here quotes State v. Saporen, 285 N.W. 898, 901 (Minn. 1939.)
  13. Brief for the United States as amicus curiae. Washington, D.C.
  14. Heck, M. (counsel of record). Amici Curiae in support of respondent from the National District Attorneys Association and District, Prosecuting and County Attorneys. Alexandria, Virginia.
  15. Fisher, T. (counsel of record). Amici Curiae in Support of Respondent. Brief of the states of Indiana, Massachusetts, Alabama, Arizona, Colorado, Connecticut, Delaware, Florida, Idaho, Iowa, Kansas, Maryland, Michigan, Minnesota, New Jersey, New Mexico, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Washington, Wisconsin, Wyoming, and the District of Columbia. Indianapolis, Indiana.
  16. States’ Brief, at 4.
  17. Id. at 2-4.
  18. Id. at 7-8. The Brief cites here, Conery, B. (2009, August 31). Scramble to keep techs in labs, out of courts. Washington Times, A1.
  19. Id. at 9. The Brief cites here, Waters, R. (2009, July 24). Supreme Court requires lab analysts to testify: now what? Forensic Magazine.

Ronald K. Bullis, Ph.D., J.D.,
teaches law at Averett University and is a practicing psychotherapist. He writes on law, malpractice, forensics, and the use of narratives in the courtroom. He conducts seminars on law, professional liability, and ethics and can be reached at


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