In a 5-4 decision written by Justice Antonin Scalia on June 25, 2009, the Supreme Court of the United States confirmed that the Right of Confrontation contained in the Confrontation Clause of the Sixth Amendment to the United States Constitution means exactly what it says:  criminal defendants have the right to confront witnesses against them. 

In this case, Luis Melendez-Diaz, was accused of a drug offense and at trial the prosecution sought to introduce an affidavit from the lab analyst stating the substance tested was cocaine.  Melendez-Diaz’s criminal defense lawyer objected because the analyst was not present in court and could not be cross-examined.  The lawyer for Melendez-Diaz argued that allowing the affidavit to substitute for live testimony from the analyst violated the client’s right to confront the witnesses against him.   The Massachusetts trial court rejected the argument, allowed the affidavit to be used and Melendez-Diaz was convicted.  

In deciding Melendez-Diaz, the Supreme Court of the United States rejected the numerous arguments which had surfaced in various state courts, including Virginia, since Crawford v. Washington was decided in 2004.  In addition, the Court seemed a bit hostile and irritated with the prosecution, and perhaps with the various state courts which had made rulings seemingly designed to dodge Crawford, as is evidenced by Justice Scalia’s comment that Melendez-Diaz involved a rather straightforward application of the holding in Crawford.  

The Supreme Court says:
*Analysts are accusatory witnesses

*Analysts, like other expert witnesses, are subject to confrontation

*There is no Confrontation Clause exception for volunteered testimony, and by the way, these affidavits were prepared in response to a police request

*Forensic evidence is not immune from manipulation and has problems of subjectivity, bias and unreliability

*Affidavits made for use at trial are not traditional business records

*It is the government’s duty to produce witnesses to prove the case at trial and that duty cannot be shifted to the accused

*The Confrontation Clause is binding and cannot be disregarded because it makes prosecuting cases more burdensome for the government

What does the Melendez-Diaz Supreme Court decision mean for the state of Virginia?