Here is the QP is Briscoe, a VA case which addresses one of the points raised in Melendez-Diaz. I have done this in drug urinalysis cases – asked for production of the lab witnesses as defense witnesses – and been refused.
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?
Professor Friedman is counsel of record. He was amicus in M-Diaz and it looks like the Supreme Court in M-Diaz accepted his general approach to the issues in M-Diaz. If the Sixth Amendment means anything, then the witness has to be produced and saying that the defense can call the witnesses themselves is not the same as confrontation. It seems to me that the Briscoe issue ought to be resolved in the same manner as for a witness. The prosecution can’t offer witness statements and then retreat to a rule that says the defense has the right to supoena the witnesses for cross-examination. So why should the result be the same with forensic reports.
This case will be argued when – and if – Justice Souter’s replacement is on the bench.