Briscoe v. Virginia

The Supreme Court has agreed to take a case that tests the limits of a Confrontation Clause case, Melendez-Diaz v. Massachusetts, decided late last term.

In June 2009, a 5-4 Supreme Court held that the information in lab technician reports can only be introduced against a criminal defendant if the person has had the opportunity to cross-examine the lab tech who conducted the testing.

Briscoe v. Virginia concerns two consolidated criminal cases where a certificate of forensic lab analysis was admitting without the testimony of the analyst who prepared the certificate.

Both convictions were affirmed by Virginia's intermediate appellate court.

The Court of Appeals of Virginia denied Sheldon Cypress' appeal in an unpublished order. Cypress was charged with possession of cocaine with the intent to distribute, having previously committed the offense of distribution or possession with the intent to distribute.

The Court of Appeals of Virginia affirmed Mark Briscoe's convictions by an unpublished per curiam order. Briscoe was charged with possession of cocaine with the intent to distribute, conspiracy to distribute cocaine, and unlawful transportation of cocaine into the Commonwealth.

In February 2008, after their appeals were consolidated with another appeal, the Supreme Court of Virginia, by a vote of 4-3, affirmed the decisions of the Court of Appeals of Virginia.

The court found no error, even assuming that the lab certificates were testimonial. It found that the state statute that allowed the opponent of a lab report to call the lab analyst as the defendant’s own witness satisfied the Sixth Amendment’s Confrontation Clause:

"Because the procedure provided in [Va.] Code § 19.2-187 adequately protects a criminal defendant's rights under the Confrontation Clause and because the defendants in these appeals failed to utilize that procedure, we conclude that they waived the challenges under the Confrontation Clause to the admissibility of the certificates of analysis."

Question presented: If a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the state avoid violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness?