Well, that may be anti-climatic? I think the Supremes punted. Here’s a link to the Briscoe memorandum opinion, more later.
PER CURIAM. We vacate the judgment of the Supreme Court of Vir-ginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massa-chusetts, 557 U. S. ___ (2009).
Here is a case from federalevidence.com:
Supervisor expert testified about his role in the peer review process; passing reference to the testing chemist’s conclusion did not violate the Confrontation Clause; circuit also distinguishes Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S.Ct. 2527 (2009), in United States v. Turner," _ F.3d _ (7th Cir. Jan. 12, 2010) (No. 08-3109)
A recent Seventh Circuit case revisits the issue of expert testimony which refers to the analysis of another expert. Is the Confrontation Clause violated when a supervisor testifies about the peer review process, his role in confirming reviewing the test results, and the initial results of another chemist? On the fact of the case, the circuit concluded there was no constitutional violation.
Here is a link to today’s oral argument in Briscoe v. Virginia, the post Crawford and Melendez-Diaz case.
While I’m not convinced the decision will have much meaning in military cases, there are others who believe it will. So it does behoove us to monitor the case.
FederalEvidence blog has posted:
Fifth Circuit addresses an open issue concerning admission of medical statements under the Confrontation Clause; circuit also notes that “there is no constitutional right to confront the victim of a crime” where the government elects not to call the victim at trial, in United States v. Santos, _ F.3d _ (5th Cir. Dec. 2, 2009) (No. 08-31225).
On the issue of “whether out-of-court statements made during medical treatment are testimonial,” the circuit was guided by two recent Supreme Court decision. The first case involved dicta from the Court’s most recent Confrontation Clause decision in Melendez-Diaz v. Massachusetts, noting that “medical reports created for treatment purposes . . . would not be testimonial.” Melendez-Diaz v. Massachusetts, 129 S. Ct. at 2533 n.2.
Briscoe v. Virginia, a post Crawford and Melendez-Diaz case is scheduled to be argued at the U. S. Supreme Court on 11 January 2010. Professor Friedman will argue for petitioner Briscoe.
Professor Friedman notes that, “I have just served and filed the reply in Briscoe. You can read it by clicking here.”
All of the prior documents about this case can be found at SCOTUSWiki. This case is of importance to military justice practitioners. There are several cases pending within military appellate courts that might be affected by Briscoe, as well as some cases pending at court-martial. Some of my prior comments are here.
Court-Martial Trial Practice Blog