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Schulze on the Confrontation Clause in Massachusetts Courts

From Crawford v. Washington, 541 U.S. 36 (U.S. 2004) to Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (U.S. 2009) and beyond, courts redefine the scope of the Confrontation Clause. Practitioners are pressed to adapt their litigation strategies to recent and future decisions. In this Analysis, Professor Louis N. Schulze Jr. provides practical guidance on the ever-evolving subtleties governing the admissibility of out-of-court statements in Massachusetts courts. He writes:
II. Massachusetts Cases after Crawford.
A. Confrontation and Scientific Evidence.
     The first, most pressing, issue facing Massachusetts practitioners is the future of the Confrontation Clause in the context of lab eports and other scientific evidence. In Melendez-Diaz v. Massachusetts, 174 L. Ed. 2d 314, 2009 U.S. LEXIS 4734 (2009) the Court took up the issue whether admission of an unconfronted lab technician's drug analysis certificates (stating that the drugs confiscated from defendant were, in fact, cocaine) violated the Confrontation Clause. In a 5-4 decision announced on June 25, 2009, the Court invalidated this common practice, holding that these "certificates" were really nothing more than affidavits whose sole purpose was to provide testimony. As such, admitting the certificates absent live testimony of the technician offended a core ideal of the Sixth Amendment. Justice Kennedy authored a lengthy dissent. Among other arguments, he noted that lab technicians are not "accusatory" witnesses as contemplated by the Sixth Amendment. See Prof. Daniel Capra on Admissibility of Records and Certificates in Criminal Cases After Melendez-Diaz, 2009 Emerging Issues 4017 (2009).
     But, on June 29, 2009, the Court granted certiorari in Briscoe v. Virginia (see Magruder v. Commonwealth, 275 Va. 283 (2008)), a case very similar to Melendez-Diaz. The question presented is whether a state may satisfy the Confrontation Clause by providing the defendant the right to call the lab technician by a "notice and demand" scheme. On its face, the case seems already to have been decided by Melendez-Diaz. There, the majority decision explicitly stated that "[t]he Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court." So, what gives?
     Some commentators posit the following. The Court granted certiorari in Briscoe just four days after deciding Melendez-Diaz and two months after Justice Souter (who joined the majority decision in Melendez-Diaz) announced his retirement. Since then, former prosecutor Justice Sonya Sotomayor has joined the Court. Because she is replacing a member of the Melendez-Diaz majority, her vote could alter the balance. All this, of course, is speculative, but granting review in Briscoe seems to suggest that the scope of the Melendez-Diaz opinion might be in question.
     A somewhat more likely interpretation is the following. In Melendez-Diaz, the defendant could not examine the lab technician. By contrast, in Briscoe, Virginia law provided that a defendant could call the lab technician as a witness in his or her case-in-chief after giving sufficient pre-trial notice to the prosecution of the intent to do so. Although the statute permitted the defendant to treat the technician as an adverse witness (and thus truly "confront" the testimony), it nonetheless relieved the prosecution of any duty to call the technician in its case. Some commentators contend that this distinction is the purpose for granting certiorari in Briscoe: to resolve whether a burden-shifting scheme is constitutional, or whether confrontation requires any notice-and-demand statute to require the prosecution to call the lab technician. Tellingly, Virginia has since amended its statute to require the testimony in the Commonwealth's case.
Practice Tip # 3: Assume that the Confrontation Clause compels live testimony.
     In light of the Court's holding, prosecutors should assume that the Confrontation Clause compels the live testimony of forensic analysts in the Commonwealth's case-in-chief. Until Briscoe resolves this issue, protect your appellate record by briefly calling the lab technician thus preserving defendant's right of confrontation.