The remand of the ruling of the Virginia Supreme Court in the case of Magruder v. Commonwealth appeared to be the most likely result of the U.S. Supreme Court’s June 25 ruling on the application of the Confrontation Clause to lab reports.
Essentially, the U.S. Supreme Court said that having an affidavit from a lab technician is not a substitute for having a live technician appear in court. However, the court described a constitutionally acceptable procedure to present the testimony by affidavit unless the defense insists upon a personal appearance by the technician. At first glance, the system in Virginia seemed short of the court’s standard.
However, on the last day of its term on June 29, the high court agreed to hear the Magruder case, which had been renamed Briscoe v. Virginia, Record No. 07-11191, due to Magruder, the first of three defendants in separate cases decided by the Virginia Supreme Court, decided not to file an appeal.
The grant of certiorari was particularly surprising due to the U.S. Supreme Court remanding cases to courts in Ohio and California for consideration in light of the June 25 decision, Melendez-Diaz v. Massachusetts.
According to speculation by veteran Supreme Court observer and analyst Lyle Denniston, the dissenters in the Melendez-Diaz case could be setting up a quick reversal.
The case was decided 5-4, and one of the five, Justice David Souter, will be leaving the court soon.
Denniston believes Souter’s likely successor, Judge Sonia Sotomayor, could side with the dissenters.
The alliance to rewrite the Confrontation Clause jurisprudence of the court is different from the high court’s predictable division. Three members of the court usually considered to be part of the “liberal wing,” Souter, John Paul Stevens, and Ruth Bader Ginsburg, joined with conservatives Antonin Scalia and Clarence Thomas on the decision, while liberal Stephen G. Breyer going with conservatives John G. Roberts, Samuel A. Alito Jr. and Anthony M. Kennedy in dissent.
The office of the Virginia attorney general has a view of the case that is less conspiratorial, saying that the court’s decision signaled its approval of “notice-and-demand” statutes. They also said the next logical step would be to decide which of the “notice-and-demand” statutes would be permissible.
