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January 25, 2010

SCOTUS decides to dodge reconsideration of big confrontation clause issues

Many criminal justice court-watchers were keeping a close eye on this term's seemingly big Sixth Amendment confrontation clause case, Briscoe v. Virginia, based on the notion that the case would give the Justice a new opportunity to examine la st year's controversial, 5-4 decision in Melendez-Diaz v. Massachusetts.  But SCOTUS issued an opinion in Briscoe this morning that suggests that the Justices decided a dodge rather than a reconsideration is more appropriate right now.  Here is the full text of today's per curiam opinion in Briscoe:

We vacate the judgment of the Supreme Court of Virginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts, 557 U. S. ___ (2009).

Of course, as astute readers know, the Sixth Amendment's confrontation clause does not even technically apply in sentencing proceedings, so this is not formally a sentencing issue.  But it does provide another interesting tea leaf concerning how the addition of (former state prosecutor) Justice Sotomayor to the Supreme Court may (or may not) change how the Court does criminal justice business.

January 25, 2010 at 10:27 AM | Permalink


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I've argued that the CC applies at sentencing, and there are a number of courts that apply it to death penalty sentencing. I think the text says that it applies in all "criminal prosecutions."

Posted by: Carl | Jan 25, 2010 11:16:43 AM

This is a face-saving move for the four dissenters in MD. If she would have voted to overturn it we would have had a full set of opinions. I think it is quite reasonable to say there is fifth vote for MD now.

Posted by: Daniel | Jan 25, 2010 11:38:28 AM

Regardless of Justice Sotomayor's opinions on the merits prior to M-D, she had good reason not to establish oneself as someone who reverses recent precedent without regard to stare decisis. A more oblique attack on M-D's reasoning (as opposed to this case which was almost precisely on point to the prior precedent) might have been a better strategic approach for someone seeking to test the long term viability of the M-D majority.

Posted by: ohwilleke | Jan 25, 2010 2:10:51 PM

Too bad...I really wanted to see the word "orthogonal" in the opinion.

Posted by: DEJ | Jan 26, 2010 11:42:14 AM

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