Briscoe v. Virginia

Amici curiae brief of the Public Defender Service for the District of Columbia and the National Association of Criminal Defense Lawyers in support of Petitioner.

Brief filed: 09/09/2009


Briscoe v. Virginia

United States Supreme Court; Case No. 07-11191

Prior Decision

Case below, 657 S.E.2d 113 (Va. 2008).


Virginia’s statutory subpoena alternative is not justified by a “sky-will-otherwise-fall” rationale requiring forensic lab technicians and other prosecution experts to testify in open court, as the Supreme Court specified last term in Melendez-Diaz v. Massachusetts,129 S.Ct. 2527 (2009). The requirement that the defendant call a prosecution witness, rather than the state, is no substitute for the Sixth Amendment right to confrontation, because the Confrontation Clause procedure promotes justice in the manner in which it allocates burdens to the prosecution and opportunities to the defense. In addition, the statutory subpoena alternative is an entirely different and less effective means of adversarial testing that diminishes accuracy and reliability in the criminal justice system.

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Timothy P. O’Toole, Miller & Chevalier, Washington, DC.