The United States Supreme Court addressed the right of confrontation in a case called Briscoe v. Virginia. In Melendez Diaz v. Massachusetts, the United States Supreme Court held that the Commonwealth of Massachusetts could not offer a drug certificate of analysis without providing the defendant with an opportunity for cross examination. This decision ended the practice of trial by affidavit where prosecutors would prove that drugs were illegal narcotics by offering an affidavit from the chemist who conducted the analysis. The United States Supreme Court's Melendez-Diaz decision resulted in many drug convictions and gun charges being overturned by the court, though many were affirmed as the court found that the lack of confrontation to be harmless error.
Briscoe raised the issue of what type of notice and demand statute would satisfy the confrontation clause. At the time the United States Supreme Court granted cert in Briscoe, the Virginia notice and demand statute required the Government to give the defendant seven days notice of its intent to rely on the affidavit of the chemist and to file the notice with the court. The defendant is given an opportunity to call the chemist as an adverse witness with the state paying the cost for the subpoena. Since the United States Supreme Court granted review, Virginia amended its statute requiring the State to provide 28 days notice to the defendant and requiring the defendant to object 14 days prior to trial. Further, the new statute states that if the defendant properly objects the certificate is inadmissible without live testimony. Under the earlier statute at issue in the Briscoe case, the defendant would be allowed to call the chemist in the defendant's case in chief, which appear contrary to the holding of Melendez-Diaz and an attempt to shift the burden to a defendant in a criminal case.
Rather than address the issue, the court vacated the decision of the Virginia court and remanded the case for a decision not inconsistent with the Melendez-Diaz decision. The Briscoe decision is interesting as the court essentially declined to expand upon the Confrontation clause jurisprudence of the court. Instead, the court left the issue to be addressed by the lower courts.
The issue of the scope of the 6th Amendment confrontation clause will continue to be raised as a defense in DUI cases, to exclude breathalyzer test results and evidence of prior convictions.
Attorney DelSignore represents defendant's charged with Massachusetts OUI offenses. Attorney DelSignore will answer your call at any time to discuss your case. Many OUI in Massachusetts can be defended, even with failed breathalyzer test results or failed field sobriety tests. Call for a free consultation and schedule an immediate appointment.
