In June of 2009, the Supreme Court held in Melendez-Diaz v. Massachusetts that forensic lab reports are testimonial, and thus subject to the Confrontation Clause of the Sixth Amendment (Crawford v. Washington (2004) held that the Confrontation Clause applies to all statements that are testimonial in nature, i.e., statements made "under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.").

Justice Scalia, writing for the majority, also addressed Massachusetts' argument that the Confrontation Clause permits a state to refuse to call a forensic expert during its case if the state allowed the defendant to subpoena the forensic to testify during the defendant's case (some states support this system because it saves resources by not requiring the forensic to always appear at trial in when a lab report is entered).  Rejecting this claim, Justice Scalia, a champion of Confrontation Clause rights, noted, "Converting the prosecution's duty under the Confrontation Clause into the defendant's privilege under state law or the Compulsory Process Clause shifts the consequences of adverse-witness no-shows from the State to the accused. More fundamentally, the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court. Its value to the defendant is not replaced by a system in which the prosecution presents its evidence via ex parte affidavits and waits for the defendant to subpoena the affiants if he chooses."  Thus, it appeared that under Melendez, a state could not merely provide a defendant the right to subpoena a forensic.

Responding to this part of Melendez, University of Michigan Professor Richard Friedman wrote on his blog, "I confess I was a little sorry to see this part of the opinion; my petition in Briscoe v. Virginia, which has been held pending this decision, had raised this issue, and I would have loved to argue it. Instead, we get handed a victory without argument. Darn."

Apparently Professor Friedman was wrong - the issue was not settled.  The Supreme Court granted certiorari on the subpoena substitute issue four days after his blogpost, and he will be arguing the issue before the Supreme Court in Briscoe v. Virginia on Monday, January 11.

The first issue that will dominate the arguments on Monday is whether Melendez, and particularly Scalia's statement cited above, is controlling.  The Virginia Attorney General's office contends that it is not: "The point of that section of the [Melendez] opinion, of course, was to make clear that a defendant's 'ability to subpoena the analyst' under the Compulsory Process Clause 'is no substitute for the right of confrontation.' Therefore, the prosecution had to 'present' or produce" its witnesses to provide the defendant with an opportunity to cross-examine them, rather than falling back on the defendant's right to compulsory process. Melendez-Diaz did not purport to hold that permitting a defendant to cross-examine a witness before the prosecution examined the witness necessarily violated the Confrontation Clause."

The problem with this argument is that it ignores Scalia's language in Melendez.  Yes, Scalia did hold that the subpoena replacement was insufficient because the forensic might not appear to testify for the defendant.  However, Scalia also held more generally that the Confrontation Clause does not tolerate the introduction of affidavits instead of human beings ("More fundamentally, the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court. Its value to the defendant is not replaced by a system in which the prosecution presents its evidence via ex parte affidavits and waits for the defendant to subpoena the affiants if he chooses.")  In the end, it appears that the Court will not be persuaded by Virginia's effort to dodge Melendez's explicit language.

Putting precedent aside, the Supreme Court will also likely consider the interesting question of whether there is a meaningful and constitutional difference between grilling a forensic on cross-examinination and questioning a forensic as an adverse witness in the defendant's case.  Leading authorities clearly state that Virginia's system is insufficient (Professor Friedman's reply brief cites Wigmore on Evidence which states "the opponent is entitled to this immediate sequence, in order to expose without delay the weak points of the testimony against him") and Professor Friedman's original brief lists multiple tactical reasons why a defendant should have the right to cross during the prosecution's case.  These include, inter alia, the fact that immediate cross-examination is more effective than the defendant's impeachment of an adverse witness; there is a large time gap between the state's introduction of damaging evidence and the defendant's challenge of that evidence; and the defendant will not have the benefit of hearing the witness' testimony before questioning the witness.

Ultimately, however, Professor Friedman will likely prevail because, as he aggressively presses in his papers, a subpoena substitute rule will transform the government's case into "a presentation of affidavits."  And there is no limit to the extension of this new system.  What is to prevent all prosecutors throughout the nation from simply introducing affidavits for all statements? A witness tells a cop in the police station that he saw the defendant at the 7-11 at 6 p.m., just introduce the affidavit, and the state has a prima facie case.

The result of this transformation will be that the government can satisfy its burden, and threaten a person with incarceration, without even bringing a living person into court.  This throws the burden of proof principle into disarray.  If the government aims to incarcerate, it should be required to present, in its own case, a live witness who is willing to testify before a jury, a judge, and the public.  If the government fails to do so, a person should not have to lift a finger in his defense.