A look at the effects of Briscoe v. Virginia and subsequent case law on the enforcement and application of Melendez-Diaz v. Massachusetts.

DFI News has closely followed Melendez-Diaz v. Massachusetts¹ [hereinafter Melendez] and has monitored its impact to forensic professionals.² Melendez held that the Confrontation Clause of the 6th Amendment requires that experts who write forensic reports be available for cross-examination when their reports become evidence. Now the issues are whether Melendez will be modified or even overturned and how prosecutors and statutes will comply with its requirements. State prosecutors, concerned with shrinking budgets and high costs of prosecutions, assert that Melendez will result in a backlog of cases, dismissed or plea-bargained cases, crippling prosecutorial costs, and additional training and time required for forensic scientists as they prepare for court testimony.

Many viewed Briscoe v. Virginia³ [hereinafter Briscoe] as just such a case. On appeal to the U.S. Supreme Court from the Supreme Court of Virginia, the case was widely viewed as a case that could either modify or reverse Melendez. After all, Melendez was a 5-4 decision and the newest member, Justice Sonia Sotomeyer, was a former district attorney.

The stage was set, and the actors were ready. The audience arrived expectantly, but the play never started. Two weeks after oral argument, the U.S. Supreme Court handed down its one-paragraph decision vacating the judgment of the Virginia Supreme Court and sending the case back for further proceedings consistent with Melendez.⁴

Yet, even a Supreme Court remand is worth discussing. Reviewing the facts and briefs of Briscoe reinforces current Melendez requirements and explores how Melendez may later be applied.