What part of confrontation don't you understand?

Back in June, the U.S. Supreme Court issued an important decision on the scope of the Confrontation Clause.  The Court, in a disturbingly close decision, held that prosecutors could not just put on a lab report to show that the stuff in the defendant's possession was cocaine.  Instead, the state actually had to call the lab analyst to the stand because the defendant had a Sixth Amendment right to confront that accuser.  Before the argument, I called that decision a no-brainer and after the decision came out, I bemoaned the fact that the decision was only 5-4 in favor of confrontation over convenience.

Today, the Court heard arguments in an off-shoot case, Briscoe v. Virginia, to work out some of the details of exactly how states have to handle calling all these lab analysts.  Virginia had a statute putting the burden on the defendant to demand the presence of the lab analyst at trial.  The question for the court, then, was whether states could satisfy the Confrontation Clause with "notice and demand" statutes.  Such statutes allow the state to give notice to the defense that they intend to use a certified lab report in lieu of live testimony, and then put the burden on the defendant to object and demand the analyst's presence.  Some states go further and require the defendant herself to call the witness if the defendant wants to question the witness under oath. 

Today's argument was supposed to focus on those details.  But some watchers thought (in the case of defenders, feared) that the Court might take the opportunity to overrule that June decision and retreat from the clear protection of the right to confront.  Certainly, the state of Virginia and the 20 some other states who filed an amicus brief hoped the Court would reconsider.  Because, gee, it's just so hard and expensive and burdensome to have to provide every defendant the opportunity to confront his accusers.  If we go down that road, of course, states might also think that it's too much trouble to require police officers and detectives to testify in person so they'll want to just put on police reports.  And why mess with the actual eyewitness, who has other places to be after all, when states can just put on the signed photo line-up.  But the state of Virginia and its friends aren't asking the Court to go that far; they just want the Court to pretty please not make them produce lab analysts at trial.  Kind of like a teenager two days into her grounding, asking her parents to reconsider because having her stuck at home all the time is more annoying than Mom and Dad had expected.  
Legal news coverage leading up to today's argument suggested that the Court might really overrule itself, which would be almost unheard of.  After reading today's argument transcript, I think those court watchers thinking Melendez-Diaz could be overruled just a few months after it was issued were off-base.  Instead, I suspect we'll get a decision saying that "notice and demand" statutes are ok.  I'm a little unsure of whether the Court will give the ok to statutes that allow the defendant to call the witness without requiring the state to call the witness first, though I'm optimistic they'll do what I think is right and say the state really does have to call its witnesses to present live, in-court testimony.

But I can't help but fret that the Court still doesn't see this issue as plainly as I do.  Justice Sotomayor asked a telling question on this point, showing that some on the court might be struggling with how to craft a workable rule.  She asked the state's attorney, "How do we articulate a rule, or do we need to, that would take care of the fears of your adversary that trials would become trials by affidavit, that prosecutors will choose to put all witnesses on -- by videotape, by affidavit, by deposition, whatever mode they choose except bringing them into court -- and forcing defendants to call the witnesses?  What rule would we announce in this case that would avoid -- what constitutional construction of the Confrontation Clause would we issue that would protect against that?"

Umm, with due respect, your honor, we have a rule.  It's clear and simple and concise.  It's the Confrontation Clause: defendants have the right to confront their accusers.  How we do that is we make the state call its damn witnesses to the stand at trial.  Those witnesses provide their testimony in open court in front of a jury.  And then the defense gets to cross-examine those witnesses.  See how easy that is?

In my view, it's so simple and obvious.  I'll say it before, and I'll say it again: it's a no-brainer.  The analysts who run the intoxilyzer or do the DNA testing or say the white powder is cocaine are accusers and defendants have an absolute right to confront them, meaning cross-examine them, in court.  Which means the state has to present those live witnesses in court.  It really should be that simple.