Right to Confront Witnesses at Issue

WASHINGTON (CN) - Lawyers argued before the Supreme Court Monday over whether prosecution witnesses in a trial must be called to testify in court or whether an affidavit could suffice.

The case involves two cousins convicted of carrying cocaine who are hoping to invalidate their convictions based on the prosecution's failure to present as a witness the drug analyst who identified the drug.

Justice Sonia Sotomayor appeared skeptical of the drug carriers' argument. "You are asking us now to state something that you admit is in really no constitutional case or historical case, that says the right to confrontation means that the witness has to tell the story, and the form of telling that story has to be a verbal recitation," she said. "Am I hearing you wrong?"

University of Michigan Law School Professor Richard Freidman, the lawyer representing convicted Virginia cousins Mark Briscoe and Sheldon Cypress, replied that she wasn't.

Freidman argued that a decision to place the burden on the defense of calling a prosecution witness to the stand would overturn hundreds of years of Anglo-American precedent. He said Virginia shouldn't just offer to put the witness on the stand, but that it should be required to put the analyst on the stand in each case in order to have a statement under oath.

He said that video-conferencing could be allowed if both sides agreed.

Justice Samuel Alito pointed to Friedman's argument that the drug analyst must be called to the stand and asked if she stands by her data. "What's the difference between that situation and the situation in which the report is admitted, and the analyst is available, and the defense can question the analyst if the defense wishes to?"

Alito also noted the potentially high cost of flying in analysts to appear personally at trials.

Justice Stephen Breyer also appeared skeptical, suggesting that under Freidman's argument, defense attorneys would be able to determine if lab technicians are somehow inaccessible -- like if they move out of state -- then insist that they be present. "That way the prosecution really cannot present the case except at inordinate expense," Breyer said. "And I'm concerned about that."

He then voiced a different concern. "What happens if the lab is divided into four or five parts and there are several different machines and we have different people at different times using these different machines," Breyer asked. "Now, do we have to call all those people?" Friedman did not give a clear answer.

Solicitor General Stephen McCullough defended Virginia and the justices seemed less skeptical of his arguments. He said that the defense just needs to request that the analysts be put on the stand, but argued against the notion that they should be presented on the stand automatically, and said affidavits could suffice.

Justice Antonin Scalia did voice some concern. "It is the prosecution that has had to place the witness on the stand," he said. "It has not been up to the defense to say, 'Oh, no, I object to this affidavit. I would like you to bring,' no."

The certificate identifying the substance the cousins carried as 36 grams cocaine had included the analyst's signature and an affirmation that she analyzed the drugs herself.

The Confrontation Clause mandates that, "In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him." In the 2009 case Melendez-Diaz v. Massachusetts, the Supreme Court ruled that the Confrontation Clause applies to forensic drug analyses.

The trial court found that the certificates did not need accompanying testimony, but that the defense could have called the analyst as a witness if they had wanted and the Virginia Supreme Court agreed.

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