The Dog That Didn't Bark

They still actually need something that looks like evidence.

Breathe a sigh of relief.

You'll recall that back in June, in Melendez-Diaz v. Massachusetts, the Supreme Court said that reports of forensic analysts were testimonial and that criminal defendants had a right under the Confrontation Clause of the Sixth Amendment to insist that the people who actually conducted the examinations or did the testing appear in court to present their results. That is, if the government wants to present a lab report as evidence, it has to make the analyst who prepared the report available for on-demand cross-examination.

It was a 5-4 decision (opinion by Scalia), and the four were decidedly unhappy.

Melendez-Diaz came out on June 25. Four days later, June 29, the Court agreed to hear Briscoe v. Virginia, a case asking whether a rule that says the defendant can subpoena in the lab experts as part of its case satisfies the Confrontation Clause. That question might seem worth answering, except that the Court answered it in Melendez-Diaz. No. The state has to prove its case. The defendant doesn't need to disprove it. The Virginia approach satisfied the Compulsory Process Clause of the Sixth Amendment. It did nothing for the Confrontation Clause.

So what was the point? The changing of the guard.

Exit Justice David Souter. Enter Justice Sonia Sotomayor. Souter was in the majority. Perhaps former prosecutor Sotomayor would vote the other way.

Time passed. Briscoe was briefed. It was argued earlier this month. Meanwhile, Viginia changed its law to comply with Melendez-Diaz. And the rest of us sat around waiting to find out if the court would overrule itself in a mere 7 months. Today, we got the answer.

The Court would do nothing. Here, in its entirety, unsigned and without dissent, is the Briscoe 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 v. Massachusetts, 557 U. S. ___ (2009).

It gives away no secret of the criminal defense lawyer fraternity to say that we don't want to fight again battles we've already won. Briscoe offered no opportunity for the law to get better. It gave the Court no means to expand the right of confrontation. All it could do was make things worse. Frankly, it's hard to think that the Court had any reason to agree to hear Briscoe other than to make things worse.

The interesting question now is what went wrong? Why didn't the Court overrule - or at least limit - Melendez-Diaz? And if not that, why didn't the dissenters in that case dissent again?

It's hard to see this as simply the effect of the new Justice refusing to overrule her predecessor. And it's altogether implausible to think it's merely that the Court has too much respect for precedent to overrule - or even speak out against - what it did just last term.*

Here's my guess. The government went too far.

It's always seemed to me that more cases are lost at oral argument than won. There's always the chance that the attorney for the state (which is, after all, usually the winner) will say something so mind-bogglingly stupid that the court just stops and stares. It happens more than you'd think. Mostly, though, nothing comes of it. By the time they vote, they've left the amazement behind.

Still, once in a while, on rare occasions, something just offends, and they can't get past it. So here's my theory.

The Solicitor General shared argument time with Virginia. In response to a string of questions, the Assistant SG, albeit grudgingly, acknowledged that while there might be some undefined due process problem with it, the Confrontation Clause did not actually require the state to present witnesses at trial in order to obtain a conviction. Affidavits would do. If the defendant wanted to cross-examine the authors of the affidavits, the defendant could call them as witnesses.

JUSTICE SOTOMAYOR: Could you -- are you suggesting -- or are you saying even a trial by affidavit is okay under the Confrontation Clause? Is that your position?

MS. KRUGER: Our principal submission is that the Confrontation Clause allows the government to rely on affidavits, so long as it bring the affiants into court, so that the defendant can ask whatever --

(Transcript here.)

At which point, to paraphrase Arlo Guthrie, they all moved away from her from behind the bench.

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*Friday's decision in Citizens United v. Federal Election Comm'n demonstrated just how activist this allegedly minimalist Court can be. It decided to answer a question that had not been presented to it and that was wholly unnecessary to resolution (either way) of the question it had agreed to answer. It ordered the parties to brief the new question. And then it issued an opinion overturning decades of prior law.