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U.S. Supreme Court to hear Virginia confrontation case

The remand of the Supreme Court of Virginia’s ruling in Magruder v. Commonwealth appeared to be the most likely result of the U.S. Supreme Court’s ruling on Thursday on the application of the Confrontation Clause to lab reports.

The U.S. Supreme Court said, in essence, that an affidavit by a lab technician is no substitute for a live technician in court but described a constitutionally acceptable procedure for presenting the testimony by affidavit unless the defense insists on a personal appearance. At first glance, Virginia’s system appeared to be short of the standard set by the court.

But on the last day of its term today, the high court agreed to hear Magruder, now styled Briscoe v. Virginia, Record No. 07-11191, because Magruder, the first of three defendants in separate cases decided by the Virginia Supreme Court, did not appeal.

The grant of certiorari was especially surprising because the U.S. Supreme Court remanded cases to courts in Ohio and California for consideration in light of the Thursday opinion, Melendez-Diaz v. Massachusetts.

Veteran Supreme Court observer and analyst Lyle Denniston speculates on Scotusblog.com that the dissenters in Melendez-Diaz may be setting up a quick reversal of the case.

It was decided 5-4, and Justice David Souter, one of the five, is leaving the court.

His likely successor, Judge Sonia Sotomayor, could side with the justice who dissented in the Massachusetts case, Denniston says.

The alliance to rewrite the court’s Confrontation Clause jurisprudence differs from the high court’s predictable division. Three members usually considered part of the court’s liberal wing – Souter, John Paul Stevens and Ruth Bader Ginsburg – joined conservatives Antonin Scalia and Clarence Thomas, while the liberal Stephen G. Breyer sided with conservatives John G. Roberts Jr., Samuel A. Alito Jr. and Anthony M. Kennedy in dissent.

The Virginia attorney general’s office has a less conspiratorial view of the situation. “In Melendez-Diaz, the Court signaled its approval of ‘notice-and-demand’ statutes. The next logical step in the Court’s jurisprudence is to decide which ‘notice-and-demand’ statutes are permissible, and which are not. We did not expect a remand in light of Melendez-Diaz, because the Supreme Court of Virginia expressly declined to hold whether certificates of analysis were testimonial – the core holding of Melendez-Diaz.”

By Alan Cooper

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