Today, SCOTUS heard arguments in Briscoe v. Virginia. Transcript available here.
This case may potentially reverse Melendez-Diaz. Everyone is focused on the vote of Justice Sotomayor, as Justice Souter cast the 5th vote to join Justice Scalia’s Motley Crew supporting his vision of the confrontation clause (Scalia, Thomas, Stevens, Souter, and Ginsburg) while Kennedy, joined by Roberts, Alito, and Breyer, dissented.
Anyway, of note, is that right out of the box, Justice Sotomayor asked the first several questions, specifically testing the outer-bounds of Melendez-Diaz.
Mr. Friedman: If the Court were to reverse Melendez-Diaz and hold that a State may impose on the defendant the burden of calling a prosecution witness to the stand, it would severely impair the confrontation right and threaten a fundamental transformation in the way Anglo-American trials have been conducted for hundreds of years.
JUSTICE SOTOMAYOR: The State court has interpreted their provision to give the defendant the choice of subpoenaing the witness or asking the State to bring in the witness. Why is that overruling Melendez-Diaz?
MR. FRIEDMAN: Your Honor, the — the State courts, since the time of this case, since the time that these cases were tried, raised the possibility of asking the — that the defendant could ask the witness to bring — that the defendant could ask the prosecution to bring in the witness. It doesn’t really change anything from a straight subpoena statute in any — in either event.
Sotomayor continued grilling Friedman until Justice Scalia, the author of Melendez-Diaz, jumped in on page 7 of the transcript. As well, she hit the Respondent with the first several questions.
Sotomayor seemed most interested in the Constitutional implications of Melendez-Diaz, rather than the policy arguments, Kennedy focused on in his dissent in Melendez. Tough call which way this will turn out. It is possible she is questioning the validity of extending Scalia’s majority. It is also possible she doubts Scalia’s view, and is trying to poke holes. We shall see.