Violation of Confrontation Rights

In Briscoe v. Virginia, 130 S.Ct. 1316 (2010) Mark Briscoe was convicted in a Virginia court for possession with the intent to distribute cocaine and unlawful transportation of cocaine into the Commonwealth with the intent to distribute. The Supreme Court of Virginia affirmed, MacGruder v. Commonwealth, 275 Va. at 290 (Va. 2008). The United States Supreme Court granted certiorari.

Briscoe is an odd case in that the issue raised appeared to be quite clearly settled by the Court's opinion in Melendez-Diaz, yet the Court nevertheless granted certiorari, accepted briefs, and held oral arguments before issuing its one-sentence opinion vacating and remanding the Virginia decision. The following paragraph in the Melendez-Diaz opinion seemed to squarely answer the question raised in Briscoe: "Respondent asserts that we should find no Confrontation Clause violation in this case because petitioner had the ability to subpoena the analysts. But that power-whether pursuant to state law or the Compulsory Process Clause-is no substitute for the right of confrontation. Unlike the Confrontation Clause, those provisions are of no use to the defendant when the witness is unavailable or simply refuses to appear… ("[The witness] was subpoenaed, but she did not appear at ... trial"). 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."