Briscoe v. Virginia


When entering a certificate of forensic laboratory analysis as evidence, does a state sufficiently satisfy the Confrontation Clause by allowing the defendant to call a forensic analyst who prepared the report as an adverse witness, or must the forensic analyst be presented for cross-examination during the prosecution’s case?

Oral argument: 
January 11, 2010
Court below: 

This case involves how a state can comply with the Confrontation Clause when presenting certificates of forensic analysis into evidence, rather than having the forensic analyst testify to the results of the evidence testing. In June 2009, the Supreme Court held in Melendez-Diaz v. Massachusetts that certificates of analysis must be accompanied by an opportunity to cross-examine the forensic analyst who prepared the report. However, Virginia Code Sections 19.2-187 and 19.2-187.1 allow for a defendant to question a forensic analyst at trial by calling him as a defense witness. Petitioners Mark Briscoe and Sheldon Cypress argue that this violates Melendez-Diaz and the Confrontation Clause by shifting the burden to the defendant and creating a waiver of a constitutional right through inaction. Virginia claims that the scheme is constitutional because the defendants are on notice of the charges against them and may still call the forensic analyst as a witness themselves. This case could affect trial strategy and the cost of presenting forensic evidence, as well as provide an opportunity for the Court to examine the recent 5-4 Melendez-Diaz v. Massachusetts decision, where recently retired Justice David Souter cast a deciding vote.

Questions as Framed for the Court by the Parties 

If a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the state avoid violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness?


Statutes at issue

Virginia Code Sections 19.2-187 and 19.187.1, as they were written before August 21, 2009, governed the admissibility into evidence of certificates of analysis. Virginia Code §§ 19.2-187, 19.187,1 (displaying the 2009 amendments to original version of the statute). These certificates allowed a forensic expert to submit an analysis of evidence, such as DNA or drugs, without having to testify in person. The certificate must have been attested to by the analyst and must have been filed with the court at least seven days prior to trial. Until August 21, 2009, once a prosecutor submitted a certificate of analysis into evidence, the defendant could only challenge that evidence by calling the forensic analyst as a witness at trial.

Facts of the Plaintiffs’ cases

Sheldon Cypress was arrested for drug possession after police found what appeared to be cocaine in a car in which he was a passenger. In a completely unrelated incident, Mark Briscoe was arrested for drug trafficking offenses after police found a rock-like substance in his shorts while executing a search warrant.

Although the incidents were completely unrelated, the trials of both Cypress and Briscoe concerned the application of Virginia Code § 19.2-187. In both cases, a forensic scientist determined that the confiscated substance was cocaine: Cypress possessed 60.5 grams, whereas Briscoe possessed 36.578 grams. In both cases, the state forensic scientist prepared a written certificate of analysis confirming the amount of narcotics, which the prosecution then entered into evidence in compliance with Section 19-187.1.

Both Cypress and Briscoe made the same objection at their trials, arguing that the evidence was “testimonial” in nature, and thus the evidence was inadmissible without testimony from the forensic analyst. Both relied on the Supreme Court’s decision in Crawford v. Washington, which held that the Sixth Amendment’s Confrontation Clause required cross-examination of a witness producing “testimonial” evidence. Both trial courts denied the motion, noting that Section 19.2-187.1 allowed the defendant to call the forensic scientist as a witness. Neither Cypress nor Briscoe called the forensic scientist who submitted the certificate of analysis, and both were found guilty.

Decision of the Supreme Court of Virginia

The Supreme Court of Virginia consolidated the appeals by Cypress, Briscoe, and Michael Magruder challenging Section 19.2-187. Magruder is not part of the appeal to the United States Supreme Court.

On February 29, 2009, the Virginia Supreme Court denied the appeal. The court held that Section 19.2-187.1 adequately protected the defendants’ Sixth Amendment rights because they could either object under the statute or call the forensic analyst as a witness for the defense. The court also ruled that the defendants could waive the right to confront the witness because the statute adequately put the defendants on notice of the charges against them.

Cypress and Briscoe appealed their convictions to the United States Supreme Court, and the Court granted certiorari on June 29, 2009.



This case concerns three Virginia statutes: Virginia Code §§ 19.2-187, 19.2-187.01 and 19.2-187.1, as they stood prior to their amendment on August 21, 2009. Virginia Code § 19.2-187 provided that in a criminal trial, in authorized circumstances, some certificates of analysis reporting laboratory results will be admissible into evidence, as evidence of the facts stated in the report. (displaying the 2009 amendments to the original version of the statute). Virginia Code § 19.2-187.01 allows prosecutors to prove the chain of custody of the report without the need for live testimony. Virginia Code § 19.2-187.1 provided that the accused in any hearing or trial in which a certificate of analysis is admitted into evidence will have the right to call the person who performed the examination as a witness and examine him in the same manner as if he had been called as an adverse witness. The General Assembly of Virginia amended Virginia Codes §§ 19.2-187 and 19.2-187.1 following the Supreme Court’s decision in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009).

Petitioners, Mark Briscoe and Sheldon Cypress (“Briscoe”), allege that the Virginia statutes at issue violate the Confrontation Clause of the Sixth Amendment. The Sixth Amendment to the U.S. Constitution provides in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witness against him [and] to have compulsory process for obtaining witnesses in his favor.” This is the time-honored common law right of the defendant to cross-examine witnesses who are testifying against him or her. However, the Supreme Court of Virginia held that the Virginia statutes did not violate the defendants' Confrontation Clause rights, because they afforded the defendants the opportunity to call the analysts as defense witnesses, and the defendants knowingly, intelligently, and voluntarily waived their Sixth Amendment rights to confront the forensic analysts by not calling them as defense witnesses.

The Confrontation Clause and the implications of the recent Melendez-Diaz v. Massachusetts decision

The Supreme Court recently considered a similar issue in Melendez-Diaz. There, the Court determined that the “power [to subpoena analysts]—whether pursuant to state law or the Compulsory Process Clause—is no substitute for the right of confrontation.” Briscoe argues that Melendez-Diaz resolves the question presented in this case in his favor, as this statement of the Court was holding, and not dictum.

However, the Respondent, Commonwealth of Virginia (“Commonwealth”), contends that Melendez-Diaz did not resolve whether the Confrontation Clause additionally requires the prosecution to present the witness's testimony during the prosecution's case-in-chief. The Commonwealth believes that Melendez-Diaz did go so far as to hold that allowing a defendant to cross-examine a witness before the prosecution necessarily violated the Confrontation Clause.

Does Virginia’s “subpoena system” shift burdens and risks associated with calling a witness from the prosecution to the defense?

Briscoe argues that Virginia's subpoena system shifts the burden and risk that a witness will not appear at trial onto the defendant. Therefore, it does not guarantee that the defendant will be able to confront the witness at all. Briscoe notes that the Court determined in Melendez-Diaz that “the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court.”

The Commonwealth counters by noting that the Virginia statutes in question require the prosecution to produce the analyst upon demand of the defendant. The Commonwealth argues that once the analyst is in court, the defendant may be required to question the analyst during its case-in-chief, or the prosecution may take the initiative and question the analyst during its case-in-chief. Either way, the Commonwealth believes this structure does not violate the Confrontation Clause, because even when the defendant cross-examines the witness before the prosecution examines the witness, the defendant is still receiving all the protections offered by the Confrontation Clause: the oath, the opportunity to question the witness, and the opportunity for the jury to observe the witness' demeanor. Moreover, the Commonwealth believes that Melendez-Diaz did not mean to hold that having the defendant cross-examine a witness before the prosecution examined the witness violate the Confrontation Clause.

However, Briscoe argues that cross-examining a witness, without the prosecution first examining the witness, is a risky and unattractive tactic for the defense. Briscoe notes that there may be a gap between the time when the written testimony has been presented and the time when the analyst is cross-examined, undermining the effectiveness of the questioning. Also, Briscoe argues that if this gap exists, the defense may have to remind the trier of fact of the adverse statement, thereby reiterating the damaging information.

The Commonwealth responds to these arguments by pointing out that the purpose of the Confrontation Clause has nothing to do with who questions a witness first or at what time during a trial evidence is introduced. The Commonwealth cites historical records to demonstrate that the Confrontation Clause is not concerned with the structure of criminal trials and the order with which witnesses are examined, but rather with ensuring that defendants have an opportunity to cross-examine adverse witnesses. The Commonwealth believes that the Virginia statutes adequately protected this right.

Did Briscoe, in fact, waive his Sixth Amendment rights?

The lower court determined that Briscoe waived his Sixth Amendment right by failing to utilize the procedures provided by the Virginia statutes. The Commonwealth agrees, arguing that Briscoe waived his confrontation rights by failing to demand production of the analyst by the prosecution and that Briscoe is now trying to secure an advisory opinion from the Court concerning "what may have happened had the analyst been present." The lower court noted that the Virginia statutes adequately inform a defendant of the consequences of not utilizing the right to produce the analyst at trial, as defendants are conclusively presumed to know the law.

Briscoe contends, however, that because of the opportunity to call a witness to the stand, without the prosecutor first examining the witness, is of so little value, a defendant does not waive his or her Sixth Amendment right by failing to invoke such an inferior alternative. Briscoe characterizes the right to cross-examine an adverse witness during the prosecutor's case-in-chief and the ability to question an adverse witness without the prosecutor first questioning the witness to be entirely different from one another, the latter being far inferior to the former. Therefore, Briscoe contends that the Petitioners did not waive their confrontation right, but instead, they vigorously demanded that right, and at most waived the inferior opportunity supplied to them by the Virginia statute.


In Melendez-Diaz v. Massachusetts, the Supreme Court determined that certificates of analysis, such as lab reports confirming that a seized substance is, in fact, an illegal drug, are “testimonial” and thus must be accompanied by an opportunity to cross-examine the forensic analyst who prepared the report. This case addresses whether Virginia can comply with the Court’s reading of the Confrontation Clause in Melendez-Diaz by allowing the defendant to call the prosecution’s forensic analyst as a witness, rather than making the analyst available for cross-examination during the prosecution’s presentation of its case in chief. The Commonwealth of Virginia (“Commonwealth”) argues that the statute is constitutional because the defendant may still confront his accuser. Petitioners, Mark Briscoe and Sheldon Cypress (“Briscoe”), argue that the statute is unconstitutional because it shifts the burden of calling the analyst to the defendant, whereas the burden imposed by the Confrontation Clause is on the prosecution to present its witnesses, not on the defense to present those adverse to it.

The tactical differences between cross-examination and direct questioning

Briscoe asserts that requiring an analyst to be called by the defense would impose a number of tactical disadvantages on a defendant, as it requires the defendant to bring an adverse witness during his own case, which can be disruptive and damaging. However, the United States, in support of the Commonwealth, counters that these tactical considerations are not rights that are protected under the Sixth Amendment. The United States argues that Briscoe’s concerns are overstated, because there are usually time gaps between testimony due to court recess, sickness, or scheduling issues.

What will be the Cost?

As was the case in Melendez-Diaz, the parties debate whether requiring cross-examination by a forensic analyst will unfairly burden the justice system. According to Adam Liptak of The New York Times, many states argue that Melendez-Diaz was a “costly, disruptive and dangerous misstep” which the Court should reconsider in its entirety, or at least limit its scope, in order to reduce costs. In support of the Commonwealth, the Attorneys General of 26 states and the District of Columbia note that, since 2001, law enforcement officials have analyzed more than 1.7 million substances each year. . The financial cost of this work is high: the States spent $4.5 billion in 2005 fighting drug-related criminal offenses in state courts alone.

The Attorneys General note that, since Melendez-Diaz, forensic analysts have to spend more time away from their work, sitting in court, which creates a backlog of work. They argue that overturning the Virginia statute would threaten many of the cost-saving and time-saving measures introduced by the States in response to Melendez-Diaz, such as video conferencing and testimony by surrogates.

Briscoe asserts that his proposed “notice-and-demand” system, in which the defendant can demand that the prosecutor call the forensic analyst as a witness, is a cost-efficient solution that works under Melendez-Diaz. This is because a defendant will generally not want to call the analyst because live testimony is presented “far more vividly than in a paper report.” Briscoe notes that numerous states require the “notice-and-demand” system proposed by Briscoe with no apparent detriment to the costs or the results of the criminal justice system.

The Public Defender Service for the District of Columbia (“PDS”) argues that, even if there is an increased cost in reversing the Supreme Court of Virginia, it is one that states should be required to bear in order to protect constitutional rights. PDS contends that this is “the cost of doing business in our criminal justice system.” PDS believes arguments about a backlog at crime labs are immaterial because state forensic analysts have a duty to act as professional witnesses when the product of their work becomes evidence at trial.


This case addresses whether Virginia’s practice of allowing the defendant to call the prosecution’s forensic analyst as a witness, rather than requiring the analyst to be available for cross-examination during the prosecution’s case in chief, sufficiently meets the standards of the Sixth Amendment’s Confrontation clause as recently articulated by the court in Melendez-Diaz v. Massachusetts, in which the Court held that the power to subpoena analysts is no substitute for the right of confrontation. The Court’s decision in this case will signal whether the Melendez-Diaz decision will be circumscribed to a narrow holding, or whether it signals a much more strict approach towards safeguarding rights under the Confrontation Clause. The decision will be significant because recently retired Justice Souter cast a deciding vote in the 5-4 Melendez-Diaz decision. The result in this case will thus have an effect on trial strategy and the cost of presenting forensic evidence.

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