Briscoe petitioner’s brief filed.

Here is a link to the brief in Briscoe v. Virginia.  The case is a follow on to Crawford and Melendez-Diaz

Here is the Issue as reported by SCOTUSWiki.

Briscoe v. Commonwealth of VA:  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?

This is a procedure and motion I have followed in a number of military urinalysis cases.  Only once have I had a military judge order the lab personnel to appear.  Some years ago I had a Marine military judge order that the chemist operating the GC/MS machine be brought as a witness for defense cross-examination.  The usual military judge denial is because calling the witness isn’t necessary and that I’ve not met a threshold to show some possibility of error with the potential test/witness/litigation package.  The client was acquitted in the Marine case so there’s no “record” of that.  Interestingly, I raised that issue again at trial in United States v. Blazier, now at CAAF, but I see it wasn’t briefed or granted on.

Here is a link to my fairly standard motion.  Prior to the motion I made a witness request of the government.  It seems to me that Briscoe institutes by rule what I was trying to get at by motion.  Blazier will likely be decided before Briscoe.  I would note that I am absolutely certain that even if Briscoe comes out in favor of a ‘notice and demand’ rule, the DoD will never propose such a rule for courts-martial.

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