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High Court Lab Analyst Case Fizzles Out

Publication Date: 
January 29, 2010
Lawyers USA
Kimberly Atkins

Professor Jeffrey Fisher, Co-Director of the Supreme Court Litigation Clinic, is quoted in Lawyers USA on satisfying the Confrontation Clause in the case of Briscoe v. Virginia:

It looked like a potential blockbuster.

Just four days after handing down a closely-split ruling - complete with an emphatic dissent - requiring forensic lab analysts to be available to testify in criminal trials if their lab reports are entered into evidence, the U.S. Supreme Court granted certiorari in another case that promised to test the limits of that ruling.

The first case, Melendez-Diaz v. Massachusetts, sparked protests from prosecutors who said the ruling would allow criminals to walk free because it would be impossible to produce every lab analyst as a trial witness.

The defense bar, on the other hand, praised the decision as a safeguard against violations of defendants' Confrontation Clause rights.


"My guess is that they thought the Virginia state law worked differently than it turned out to work," said Jeffrey Fisher, a Supreme Court litigator and professor at Stanford University Law School who successfully argued the Melendez-Diaz case. "It just so happened that, as a practical matter, once you dig into it the argument in Briscoe was almost identical to the argument made in Melendez-Diaz. "


But Fisher said he doubts that, noting that one thing the justices share is a strong respect for the doctrine of stare decisis.

Fisher said the case could simple be an example of something that is not at all unusual at the Court.

"Every year the Court grants cert in a couple of cases that end up not being the case they thought they were getting," Fisher said. "This usually ends up with a case being dismissed as improvidently granted, or in a GVR," shorthand for a case that is granted, vacated and remanded to a lower court to decide - usually in light of recent High Court precedent.


"Whether it was misinformation or going too fast or hoping that something would happen after [oral arguments], who knows?" Fisher said.