Team 5
CASE NO. 09-_____
IN THE SUPREME COURT OF THE UNITED STATES
STATE OF SETONIA,
Petitioner,
v.
JACK BAUER,
Respondent.
On Writ of Certiorari to the Supreme Court of Setonia,
Case No. 009-0024
BRIEF FOR RESPONDENT
ORAL ARGUMENT REQUESTED
Attorneys for the Respondent
QUESTIONS PRESENTED
I.
During police interrogation, must a suspect receive express advisement of his right to the
presence of counsel, and if not, does Setonia Standard Police Department Form 311
violate the requirements of Miranda?
II.
If a state statutory procedure allows a prosecutor to introduce forensic laboratory
certificates without producing the analyst, providing instead that the accused may call the
analyst as his own adverse witness, does such a burden-shifting scheme violate the
Confrontation Clause of the Sixth Amendment?
i
TABLE OF CONTENTS
QUESTIONS PRESENTED............................................................................................................ i
TABLE OF CONTENTS................................................................................................................ ii
OPINIONS BELOW....................................................................................................................... v
STATEMENT OF JURISDICTION............................................................................................... v
CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED ......................................... v
STATEMENT OF THE CASE....................................................................................................... 1
SUMMARY OF THE ARGUMENT ............................................................................................. 4
ARGUMENT.................................................................................................................................. 7
I. THIS COURT SHOULD AFFIRM THAT FORM 311 FAILED TO SATISFY
MIRANDA AND BAUER’S FIFTH AMENDMENT RIGHT TO LEGAL
COUNSEL WAS VIOLATED ........................................................................................... 7
A.
B.
C.
Miranda Requires That Police Warnings Convey the Fully Effective
Equivalent of an Individual’s Fifth Amendment Right to Legal Counsel..................7
Form 311 is a Misleading Warning That Runs Afoul of Miranda and
Fails to Clearly Advise of the Right to Legal Counsel ...............................................8
The Ambiguous Final Sentence of Form 311 Does Not Overcome the
Constitutional Deficiencies Previously Contained in the Warning ..........................11
II. THIS COURT SHOULD AFFIRM THE SETONIA SUPREME COURT’S
RULING, AS SETONIA’S STATUTORY PROCEDURE PLAINLY
VIOLATES THE CONFRONTATION CLAUSE OF THE SIXTH
AMENDMENT AND RECENT SUPREME COURT DECISIONS .............................. 12
A.
B.
A Defendant's Ability to Subpoena Analysts Cannot Abrogate Setonia's
Confrontation Clause Obligation to Produce Them for CrossExamination ..............................................................................................................15
Setonia’s Procedure Unconstitutionally Prioritizes Prudential Concerns
Over Rights of the Accused ......................................................................................16
CONCLUSION............................................................................................................................ 27
APPENDICES .............................................................................................................................. A
APPENDIX 1.......................................................................................................................... A
APPENDIX 2........................................................................................................................... B
ii
TABLE OF AUTHORITIES
CASES
Berger v. California, 393 U.S. 314 (1969) ....................................................................................25
Bridgers v. Texas, 532 U.S. 1034 (2001).......................................................................................12
Briscoe v. Virginia, 129 S. Ct. 2858 (2009)...................................................................................20
California v. Prystock, 453 U.S. 195 (1989) ...................................................................................9
Chambers v. Mississippi, 410 U.S. 284 (1973) .......................................................................24, 25
Crawford v. Washington, 541 U.S. 36 (2004) .............................................................15, 16, 17, 18
Davis v. United States, 512 U.S. 452 (1994) .................................................................................13
Dickerson v. United States, 530 U.S. 428 (2000) ..........................................................................14
Florida v. Powell, 129 S. Ct. 2827 (2009).......................................................................................8
Lave v. Dretke, 444 F.3d 333 (5th Cir. 2006) ................................................................................18
Magruder v. Commonwealth, 657 S.E.2d 113 (Va. 2008) ......................................................20, 21
Mattox v. United States, 156 U.S. 237 (1895) ...............................................................................24
Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009)..................................................... passim
Minnick v. Mississippi, 498 U.S. 146 (1990).................................................................................14
Miranda v. Arizona, 384 U.S. 436 (1966) ...........................................................................7, 13, 14
New York Life Insurance Company v. Taylor, 147 F.2d 297 (1944) .............................................18
Ohio v. Roberts, 448 U.S. 56 (1980)........................................................................................15, 17
State v. Belvin, 986 So. 2d 516 (Fla. 2008)....................................................................................18
State v. Snowden, 867 A.2d 314 (Md. 2005) .................................................................................18
Thomas v. United States, 914 A.2d 1 (D.C. Cir. 2006) .................................................................18
United States v. Adams, 484 F.2d 357 (7th Cir. 1970) ....................................................................9
United States v. Anthon, 648 F.2d 669 (10th Cir. 1981)................................................................10
United States v. Bland, 908 F.2d 471 (9th Cir. 1990)....................................................................11
United States v. Caldwell, 954 F.2d 496 (8th Cir. 1992).....................................................9, 10, 11
United States. v. Frankson, 83 F.3d 79 (4th Cir. 1996).............................................................9, 10
United States v. Hagege, 437 F.3d 943 (9th Cir. 2006).................................................................18
United States. v. Lamia, 429 F.2d 373 (2d. Cir. 1970) ..............................................................9, 11
United States. v. Noti, 731 F.2d 610 (9th Cir. 1984) .....................................................................10
United States v. Peters, 435 F.3d 746 (7th Cir. 2006) ...................................................................13
United States v. Tillman, 963 F.2d 137 (6th Cir. 1992).................................................................10
Windsor v. United States, 389 F.2d 530 (5th Cir. 1968)..........................................................10, 12
STATUTES
U.S. Const. amend. V.......................................................................................................................7
U.S. Const. amend. VI ...................................................................................................................16
Setonia Code § 18.2-248 (2008) ....................................................................................................20
Setonia Code § 18.2-250 (2008) ....................................................................................................20
Setonia Code § 19.2-187 (2008) ......................................................................................................2
Setonia Code § 19.2-187.1 (2008) .................................................................................................17
iii
SECONDARY SOURCES
Brief of Petitioners, Briscoe v. Virginia, No. 07-11191 (U.S. argued Jan. 11, 2010) .............21, 24
Brief of Petitioners, Florida v. Powell, No. 08-1175 (U.S. argued Dec. 7, 2009) ..........................8
Barbara Bergman, Criminal Jury Instructions for the District of Columbia, Instruction
No. 2.08 (4th ed. Rev. 2004) ........................................................................................... 18, 19
iv
OPINIONS BELOW
The Memorandum Opinion of the Superior Court of Setonia (September 15, 2009) is
unpublished; it can be found in the Record on Appeal at pages 4-5. The Opinion of the Supreme
Court of Setonia (2009) can be found in the Record on Appeal at pages 1-14.
STATEMENT OF JURISDICTION
A formal statement of jurisdiction has been waived in accordance with the Rules of the
2010 John J. Gibbons Criminal Procedure Moot Court Competition.
CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED
The text of the following constitutional and statutory provisions involved is provided in
the appendices: Fifth Amendment to the United States Constitution; Sixth Amendment to the
United States Constitution; Setonia Code § 18.2-248 (2008); Setonia Code § 18.2-250 (2008);
Setonia Code § 19.2-187 (2008); Setonia Code § 19.2-187.1 (2008).
v
STATEMENT OF THE CASE
Jack Bauer (hereafter “Bauer”) was arrested following a warranted search of the
apartment he shared with his mother, Teri Bauer, and his younger sister, Kim Bauer. R. 2.
Neither Teri Bauer nor Kim was home at the time of the search and arrest. R. 3. The police of
Brick City, Setonia executed the search warrant on Bauer’s residence on December 1, 2008 at
3:00 p.m. Id. During the ensuing search, police officers Tony Almeida and Chloe O’Brian
seized several items, including a white substance suspected to be cocaine, two scales, a
razorblade, a 100-gram weight, a box of plastic sandwich bags and a plate that the officers
suspected to contain drug residue. Id.
Upon arrest, Bauer was transported to Brick City Police Headquarters, where Bauer’s
person was subsequently searched. Id. Officer Almeida seized a white, rock-like substance
wrapped in plastic from Bauer’s front pants pocket, believing the substance to be cocaine. Id.
Following the search of his person, Bauer was taken into a small, cramped interrogation
room where Officer Almeida read him Setonia Standard Police Department Form 311, which
purported to advise Bauer of his Miranda rights. Id. Form 311 states:
You have the right to remain silent. If you give up the right to remain silent,
anything you say can be used against you in court. You have the right to talk
to a lawyer before answering any of our questions. If you cannot afford to
hire a lawyer, one will be appointed for you without cost and before any
questioning. You have the right to use any of these rights at any time you
want during this interview.
Id.
The officers asked Bauer if he understood the rights as they have been read to
him. Bauer responded, “Yes,” and nodded his head. Id. He then signed a release form
restating the warnings contained in Form 311. Id. Officers Almeida and O’Brian then
began a full-bore interrogation, during which Bauer claimed possession of the seized
1
articles.
Bauer was arraigned on December 2, 2008. Renee Walker, Esq. appeared on Bauer’s
behalf. Bail was set for $50,000 and paid by Teri Bauer. Id.
The seized items from the Bauer family apartment were sent to the Setonia Forensic
Science Division for analysis. R. 4. The laboratory issued certificates reporting the findings.
The certificates indicated they accurately reflected the test results and were signed by the lab
analyst (unnamed in the record). Id.
These bare bones certificates identified the tested samples as cocaine, “approximately
260 grams.” Id. The certificates failed to indicate receipt or testing of two separate samples, or
to identify the methods used to test and weigh the contraband. Setonia submitted the two
certificates of laboratory analysis seven days prior to trial in accordance with Setonia Code
§ 19.2-187, but did not notify Bauer. Id.; Setonia Code § 19.2-187 (2008). Consequently, Bauer
failed to object to the admission of the certificates prior to trial.
Judge Allison Taylor heard Bauer’s jury trial in the Superior Court of Setonia. Id.
Officers Almeida and O’Brian testified regarding the execution of the search warrant, the seizure
of items from Bauer’s home and person, and Bauer’s statements made during his interrogation at
police headquarters. Id.
Bauer objected to the admission of the custodial statements, as the insufficient Form 311
warnings violated Miranda v. Arizona by failing to adequately apprise him of his Fifth
Amendment rights. Id. The State countered that Form 311 sufficiently meets the requirements of
Miranda, and Bauer was therefore adequately advised of his right to counsel. R. 5.
The prosecution introduced the two analysis certificates from the forensic lab, but did not
produce the analyst. R. 4. Bauer objected, arguing that Setonia Code § 19.2-187 and § 19.2-
2
187.1 failed to protect his right to confront witnesses against him under the Sixth Amendment.
Id.
Assistant District Attorney Bill Buchanan responded that Setonia Code § 19.2-187 and
Setonia Code § 19.2-187.1 preserve, rather than violate, Bauer’s constitutional right to crossexamine the laboratory analyst. R. 5. The prosecution also argued Bauer waived that right by
failing to object to the admission of the certificates during the statutory seven-day window
between submission of the certificates and trial commencement. Id.
Judge Taylor overruled both of Bauer’s objections. Id. Bauer renewed these objections
after closing arguments, and Judge Taylor again overruled both. Id.
Bauer presented no evidence at trial. Id. Following only one hour of deliberation, the
jury convicted Bauer of possession with intent to distribute under Setonia Code § 18.2-248, and
possession of a controlled substance under Setonia Code § 18.2-250. Id. Judge Taylor sentenced
him to ten years of incarceration for felony intent to distribute, to be served concurrently with a
one year sentence for misdemeanor possession. Id.
Bauer appealed to the Supreme Court of Setonia, which vacated his conviction and
remanded the case. R.10. The Court found that Bauer was not clearly informed of his right to
counsel during interrogation, thus rendering Form 311 constitutionally deficient. R. 7-8. The
Court further held Setonia Code § 19.2-187.1 neglected to provide adequate constitutional
protection of Bauer’s confrontation right under the Sixth Amendment. R. 10.
3
SUMMARY OF THE ARGUMENT
I.
The Supreme Court of Setonia properly ruled that Bauer’s constitutional right to counsel
was violated. The Fifth Amendment requires that upon arrest, an individual receive warning that
conveys the full extent of the right to counsel in a clear manner. By failing to inform the accused
of the right to legal counsel during police questioning, Form 311 improperly placed limitations
on the rights guaranteed under the Fifth Amendment. As a result, Bauer was not fully informed
of his right to a lawyer, which conflicts with the requirements this Court prescribed in Miranda.
Additionally, Form 311 contains misleading language, which violates the Miranda
requirement that warnings must clearly inform the accused of the right to consult with an
attorney and to have the attorney present during interrogation. While this Court clarified in
Prystock that police warnings do not require a rigid structure, the inadequate and misleading
statements contained in Form 311 failed to fully inform Bauer of his right to counsel.
Finally, the broad, “catch-all” language contained in the final clause of Form 311 fails to
remedy the deficiencies of the unconstitutional warning provided to Bauer. Plain meaning
interpretation reveals such language does not meaningfully clarify Bauer’s right to counsel. The
clause informed Bauer that he could exercise any of the previously listed rights at any time.
However, he was only provided warning of the right to talk to counsel before questioning. Thus,
despite the State’s argument to the contrary, the catch-all language failed to address the right to
counsel during questioning because such a privilege was not contained in Form 311.
Due to the impermissible nature of the Miranda warnings given to Bauer, his statements
made during police interrogation must be suppressed, and the ruling of the Supreme Court of
Setonia affirmed.
4
II.
Setonia’s statutory procedure allows prosecutors to introduce forensic laboratory
certificates without producing the analyst, providing instead that the accused may call the analyst
as his own adverse witness. This arrangement plainly violates both the Confrontation Clause of
the Sixth Amendment and the mandates of Melendez-Diaz v. Massachusetts.
The Sixth Amendment provides in relevant part, “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with witnesses against him [and] to have
compulsory process for obtaining witnesses in his favor.” Last term, this Court held in
Melendez-Diaz v. Massachusetts that the confrontation right is not satisfied by allowing the
accused to subpoena the laboratory analyst who prepared the report.
Setonia’s subpoena procedure provides in relevant part that “[t]he accused, in any hearing
or trial in which a certificate of analysis is admitted into evidence . . . shall have the right to call
the person performing such analysis . . . and examine him in the same manner as if he had been
called as an adverse witness.” Setonia’s statutory substitution of the inferior right to compulsory
process for the right of confrontation directly violates the protections guaranteed in the Sixth
Amendment, and impermissibly impairs the ability of the accused to mount an effective defense.
The burden imposed by the Confrontation Clause to present witnesses against the accused
belongs exclusively to the prosecution, and any arrangement providing otherwise violates both
the Sixth Amendment and Melendez-Diaz. The opportunity to call a forensic analyst to the stand
holds little value compared to the right to cross-examine the prosecution witness.
Allowing Setonia’s subpoena model to stand harms the confrontation right, as there
would be no limit to the applicability of such a ruling. Setonia’s model could extend to any form
of testimonial statement. Prosecutors could introduce affidavits for any and all witnesses,
5
shifting the burden to the defense to call those witnesses during its own case in chief.
Setonia’s statutory procedure seeks to “merely regulate” the means by which the accused
may invoke the confrontation right. However, the procedure instead prioritizes the State’s
prudential concerns over the constitutional right, an arrangement categorically rejected in
Melendez-Diaz.
This Court’s Melendez-Diaz holding plainly demands that the decision of the Supreme
Court of Setonia be affirmed.
6
ARGUMENT
I.
THIS COURT SHOULD AFFIRM THAT FORM 311 FAILED TO
SATISFY MIRANDA AND BAUER’S FIFTH AMENDMENT RIGHT TO
LEGAL COUNSEL WAS VIOLATED.
Bauer was deprived of proper warning regarding his right to an attorney and was
subsequently subject to interrogation resulting in statements that were used to secure his
conviction. This unconstitutional warning, contained in Setonia Standard Police Department
Form 311, advised Bauer of his right to counsel prior to questioning, but failed to mention the
right to have a lawyer present during police interrogation. Because the warning given under
Form 311 was constitutionally insufficient, the incriminating statements made during police
questioning cannot be used as evidence against Bauer.
The United States Constitution provides that “[n]o person . . . shall be compelled in any
criminal case to be a witness against himself.” U.S. Const. amend. V. In Miranda v. Arizona,
384 U.S. 436, 471 (1966), the Supreme Court held that this constitutional guarantee includes the
right to consult with an attorney. Specifically, Miranda ruled that “[t]he Fifth Amendment
privilege comprehends not merely a right to consult with counsel prior to questioning, but also to
have counsel present during any questioning if the defendant so desires.” Id. at 470. Intrinsically
tied to this right is the requirement that prior to questioning, a suspect receive clear instruction
from law enforcement officials regarding Fifth Amendment protection and the right to counsel
before and during interrogation. Id. at 444. Due to the fundamental nature of the right against
self-incrimination, this warning is unequivocally afforded to each suspect prior to questioning
without assumption of the individual’s existing knowledge of his or her rights. Id. at 568-69. As
the Supreme Court of Setonia ruled, Bauer was denied these constitutional guarantees in
violation of the Fifth Amendment.
7
Last term, the Supreme Court granted certiorari and heard oral arguments regarding this
issue in Florida v. Powell, 129 S. Ct. 2827 (2009). The question focuses on whether advisement
of the right to talk to a lawyer before questioning fails to convey a suspect’s right to the presence
of counsel during interrogation. Petitioner’s Brief at 1, Florida v. Powell, No. 08-1175 (U.S.
argued Dec. 7, 2009). This issue necessitates Supreme Court attention due to the current circuit
court split, which calls for varying degrees of explicitness required by Miranda warnings.
While circuit courts have used different standards of explicitness in application of
Miranda, common ground reveals that misleading warnings fall short of the required level of
constitutional protection provided by the Fifth Amendment. The wording contained in Form 311
provides a misleading, and therefore inadequate, disclosure of Bauer’s right to consult with an
attorney.
A.
Miranda Requires That Police Warnings Convey the Fully Effective
Equivalent of an Individual’s Fifth Amendment Right to Legal
Counsel.
Form 311 provides in pertinent part, “[y]ou have the right to talk to a lawyer before
answering any of our questions.” R. 3. This warning, provided to Bauer by the Setonia Police
Department, inaccurately reflects the full scope of the right to legal counsel. Instead, Form 311
limits this right by revealing only that the accused may consult with a lawyer before questioning.
This limitation violates Bauer’s right to be fully informed of the extent of his Fifth Amendment
privilege, which also includes the right to have a lawyer present during questioning.
While the rights afforded under the Fifth Amendment have been clearly delineated to
include a right to counsel and to be properly informed of the right to counsel, the application of
this holding has not been uniform. Currently, a split exists among federal circuit courts
regarding the level of explicitness required under Miranda. Regardless of the standard applied,
8
the issue facing the Court is whether Miranda requires that a suspect receive express advisement
of his right to counsel during interrogation. Analysis of Supreme Court precedent and lower
court rulings reveal Miranda necessitates no formal structure for police warnings. Rather, a
suspect must receive advisement that completely outlines the Fifth Amendment right to counsel
without limitation.
The fact that different forms of acceptable warnings exist is not a departure from
Miranda, but comports with Supreme Court rulings. Indeed, the Court held that language used
by arresting officers need only provide a fully functional equivalent of the requirements set forth,
and there is no need to administer “a virtual incantation of the precise language contained in the
Miranda opinion.” California v. Prystock, 453 U.S. 355, 361 (1981). The understanding that
there are no magic words required under Miranda as long as the suspect’s rights are fully
conveyed has contributed to differing circuit applications with varying degrees of required
explicitness. Id. Thus, the question is not the form of the warning, but rather its substance.
Absent a rigid explicitness requirement, Form 311 still fails to satisfy Miranda because of the
inadequate advisement of Bauer’s Fifth Amendment right to counsel.
The standard for Miranda warnings, as recognized by the Second, Fourth, Seventh, and
Eighth Circuits, is referred to as a “general warning,” which indicates a low degree of
explicitness. These circuits hold that simple language, such as, “You have the right to an
attorney,” and, “You have the right to have a lawyer present,” complies with Miranda. See, e.g.,
United States v. Lamia, 429 F.2d 373, 376-77 (2d Cir. 1970); United States v. Frankson, 83 F.3d
79, 82 (4th Cir. 1996); United States v. Adams, 484 F.2d 357, 361-62 (7th Cir. 1973); United
States v. Caldwell, 954 F.2d 496, 502-04 (8th Cir. 1992). Courts applying the general warning
standard conclude that while the warning does not specify a suspect’s right to a lawyer before
9
and during questioning, the language is constitutional because it does not qualify or limit the
right to counsel. See Frankson, 83 F.3d at 82. General warnings allow for natural, accurate
interpretation that the individual can assert his right to a lawyer at any point before or during
interrogation. Courts adopting this standard comply with Miranda because general warnings
contain no limitations and functionally inform of the full extent of the right to counsel.
A separate model, endorsed by the Fifth, Sixth, Ninth, and Tenth Circuits, find general
warnings constitutionally deficient, as individuals must receive specific advisement of their right
to a consult with a lawyer both before and during questioning. See, e.g., Windsor v. United
States, 389 F.2d 530, 533-34 (5th Cir. 1968); United States v. Tillman, 963 F.2d 137, 140-42 (6th
Cir. 1992); United States v. Noti, 731 F.2d 610, 615-16 (9th Cir. 1984); United States v. Anthon,
648 F.2d 669, 672-74 (10th Cir. 1981). A warning that details the right to counsel before
questioning but remains silent regarding the right to an attorney’s presence during interrogation
is deficient and fails to comply with Miranda. See Caldwell, 954 F.2d at 504 (stating, “[i]f there
was a deficiency in the warning, it is in the ambiguity of the warning . . . .”). If a warning
specifies the right to a lawyer prior to questioning, it must also advise of the right to have the
lawyer present throughout the full course of interrogation. Windsor, 389 F.2d at 533; Noti, 731
F.2d at 614-15. Explicit warning of one without the other indicates a missing material element
of Miranda and is a mark of constitutional insufficiency. Id. Such warnings imply a limitation
on the right to a lawyer and fail to fully inform the suspect of the full extent of his Miranda
rights.
Form 311 failed to effectively inform Bauer of the extent of his right to a lawyer. By
advising Bauer of his right to talk to a lawyer before answering any questions, the Setonia police
placed a perceived limit on the right to counsel in conflict with Miranda. To correct this
10
limitation, Bauer should have received explicit notice of his right to counsel during questioning
as well. Because such notice was not given, Form 311 unconstitutionally fails to provide
sufficient warning as to the full extent of the right to counsel.
B.
Form 311 is a Misleading Warning That Runs Afoul of Miranda and
Fails to Clearly Advise of the Right to Legal Counsel.
The explicit ruling in Miranda and supporting circuit court cases require a suspect
receive clear instruction regarding his Fifth Amendment right to consult with a lawyer prior to
and during interrogation. Setonia Standard Police Department Form 311 fails to meet this
standard because it includes misleading and inadequate warnings regarding the right to counsel.
The warnings contained in Form 311, advising Bauer of his Fifth Amendment right, fall
under neither the general warning standard nor the explicit standard adopted by the circuit courts.
Instead, Form 311 contains language courts have characterized as misleading. Caldwell, 954
F.2d at 504. The statement, “You have the right to talk to a lawyer before answering any of our
questions,” does not constitute a general warning due to the presence of qualifying language.
Any suggestion of a limitation to legal consult renders it deficient under the general warning
model. Lamia, 429 F.2d at 377. The language in Form 311 suggests a “restriction of the
attorney’s functioning,” which is constitutionally impermissible and disqualifies Form 311 from
analysis under the general warning standard. Id.
Similarly, the Miranda warnings afforded to Bauer under Form 311 fail to meet the more
explicit requirement model. Informing Bauer only of his right to speak with an attorney before
questioning, without also advising him of the right to have counsel present during interrogation,
falls short of the Miranda standard. United States v. Bland, 908 F.2d 471, 473-74 (9th Cir. 1990).
The Fifth Circuit cautions, “[m]erely telling him that he could speak with an attorney or anyone
else before he said anything at all is not the same as informing him that he is entitled to the
11
presence of an attorney during interrogation . . . .” Windsor, 389 F.2d at 533.
This Court has offered limited but telling guidance on how this issue should be
addressed. Justice Breyer, joined by Justices Stevens and Souter in denying certiorari, remarked
that a Miranda warning which says nothing about an individual’s right to a lawyer during
questioning leaves out an essential Miranda element. Bridgers v. Texas, 532 U.S. 1034, 1034
(2001). Justice Breyer noted that if this dilemma proves to be recurring, the Court’s attention
may become necessary. Id. Nine years later, Form 311 is precisely the problem Justice Breyer
predicted.
Regardless of whether this Court adopts the general or explicit model, Form 311 contains
misleading language. The important distinction is the presence of misleading terms that place
implied limitations on the right to counsel. Miranda requires clear warning, yet Form 311
explicitly mentions the right to counsel before questioning, but misleadingly remains silent
regarding the right to a lawyer’s presence during interrogation.
C.
The Ambiguous Final Sentence of Form 311 Does Not Overcome the
Constitutional Deficiencies Previously Contained in the Warning.
The final sentence of Form 311 states, “[y]ou have the right to use any of these rights at
any time you want during this interview.” R. 3. Petitioners contend, and the dissent of the lower
court suggests, that this “catch-all” clause sufficiently summarizes an individual’s right to
counsel. However, plain meaning interpretation and a common sense understanding of Miranda
and its progeny show that such language fails to overcome the deficiencies of the warning
contained in Form 311.
The fundamental nature of the Fifth Amendment requires that a suspect receive clear and
adequate warning regarding his rights. Miranda, 384 U.S. at 468-69. A suspect need not
interpret his rights from ambiguous warning. Instead, the burden rests on the government to
12
inform individuals of the guarantees provided in the Fifth Amendment. Anything less than clear
instruction fails to satisfy Miranda and represents constitutional violation. Id.
Despite the breadth of the final sentence of Form 311, plain meaning interpretation of the
clause reveals that it attaches to the previous insufficient warning. Broad terminology cannot
possibly serve to clarify a right when Form 311 contains no functional warning regarding the full
extent of the right to counsel. Form 311 relies on a misleading warning regarding the right to
counsel, and a single ambiguous concluding clause containing linguistic qualifiers does not
rectify this constitutional inadequacy.
Notwithstanding the dissent of the lower court, the contention that such catch-all
language can correct a previously inaccurate statement defies logic. Any interpretation that
upholds Form 311 is misplaced, because the final clause refers to misleading and inadequate
warnings. Additionally, implication that an individual must read between the lines in order to
divine constitutional guarantees represents a dangerous shift in jurisprudence that threatens to
weaken rights this Court has consistently reinforced since Miranda.
Further, individuals under interrogation from law enforcement are held to a strict clarity
requirement in order to invoke their right to an attorney. See, e.g., Davis v. United States, 512
U.S. 452, 455 (1994); United States v. Peters, 435 F.3d 746, 751-52 (7th Cir. 2006). This,
coupled with the Miranda requirement to clearly inform, indicates that officers have a reciprocal
obligation to suspects and cannot avoid constitutional requirements through overly broad,
supplemental language such as the final sentence of Form 311.
Miranda warnings cannot assume pre-existing knowledge of rights. Assurance of rights
is only guaranteed through proper warning. Miranda, 384 U.S. at 471-72. This Court has
repeatedly emphasized the importance of informing individuals of their rights when they are
13
taken into police custody. Id. at 461. In the forty years since Miranda, this concern has not
diminished. The inherently coercive nature of custodial interrogation “blurs the line between
voluntary and involuntary statements, and thus heightens the risk that an individual will not be
accorded his privilege under the Fifth Amendment.” Dickerson v. United States, 530 U.S. 428,
435 (2000) (internal quotation omitted).
Constitutional guarantees, as well as effective police interrogation, rest on proper
application of Miranda. The presence of counsel stands as “the adequate protective device
necessary to make the process of police interrogation conform to the dictates of the Fifth
Amendment privilege. [A lawyer’s] presence . . . insure[s] that statements made in the
government-established atmosphere are not the product of compulsion.” Minnick v. Mississippi,
498 U.S. 146, 152 (1990) (quoting Miranda, 384 U.S. at 466). Additionally, Chief Justice
Warren emphasized the right to an attorney as an “absolute prerequisite” to police interrogation
in order to balance the rights of individuals against the coercive pressure law enforcement has
proven to exert. Miranda, 384 U.S. at 470-71. Police interrogation inherently carries the
pressure for a suspect to speak, possibly at the expense of his right against self-incrimination. Id.
at 461. The presence of an attorney reduces the likelihood of police coercion. Id. at 469-70.
Similarly, an individual’s right to counsel promotes the accuracy of statements made to the
police as well as a greater likelihood that these statements are mirrored at trial. Id.
For these reasons, the government holds the burden to fully explain rights, and cannot
assume that an individual can derive their rights from confusing, catch-all language in an
unfamiliar environment. Bauer’s Fifth Amendment rights cannot hinge on the final clause of
Form 311, which, despite its broad language, does not overcome the insufficient wording
contained in the rest of the warning.
14
II.
THIS COURT SHOULD AFFIRM THE SETONIA SUPREME COURT’S
RULING, AS SETONIA’S STATUTORY PROCEDURE PLAINLY
VIOLATES THE CONFRONTATION CLAUSE OF THE SIXTH
AMENDMENT AND RECENT SUPREME COURT DECISIONS.
Setonia Code § 19.2-187 and Setonia Code § 19.2-187.1 allow a prosecutor to introduce a
certificate of forensic laboratory analysis without presenting analyst testimony, providing instead
that the accused has a right to call the analyst as his own witness. These statutes inarguably
violate the Sixth Amendment and recent Supreme Court rulings.
Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), resolved this case just last term.
Setonia’s statutory scheme subordinates the Sixth Amendment confrontation right to the far
inferior compulsory process right. Melendez-Diaz unequivocally found that a defendant’s
subpoena power under the Compulsory Process Clause cannot provide equivalent protection to
that of the Confrontation Clause. Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2534 (2009).
This impermissible substitution deprives the defendant of his right to cross-examine the
state’s witnesses, shifts the state’s production burden to the defendant, and blurs the presumption
of innocence by asking the defense to call prosecution witnesses during its own case in chief.
If Setonia’s procedure stands, the damage to the confrontation right could spread to a
wide range of testimony. Prosecutors could present ex parte affidavits in lieu of any live
testimony they desire, leaving the accused with the burden to call the State’s witnesses against
him, if he dares. Such an arrangement gravely weakens Crawford v. Washington, 541 U.S. 36
(2004), and regresses the state of the confrontation right to the rejected regime of Ohio v.
Roberts, 448 U.S. 56 (1980).
Additionally, Setonia’s procedure prioritizes prudential concerns over rights of the
accused, also contrary to Melendez-Diaz. States need not assume a crippling burden in order to
preserve the confrontation right, and convenience cannot justify eroding it.
15
In light of the statutes’ myriad failures, this Court should affirm the ruling of the Supreme
Court of Setonia, which vacated Bauer’s conviction.
A.
Defendant's Ability to Subpoena Analysts Cannot Abrogate Setonia's
Confrontation Clause Obligation to Produce Them for CrossExamination.
Setonia Code § 19.2-187 and Setonia Code § 19.2-187.1 provide constitutionally
inadequate protection to the accused. This subpoena system allows the prosecution to present a
laboratory analyst’s affidavit without producing the analyst. This procedure then purports to
satisfy the defendant’s confrontation right by permitting the accused to invoke the inferior
protection of the Compulsory Process Clause by calling the analyst as an adverse witness. The
language of the Sixth Amendment and this Court’s contemporary interpretation of that language
patently distinguish between the Compulsory Process and Confrontation Clauses, and reject any
arrangement substituting the former for the latter.
The Sixth Amendment provides, “[i]n all criminal prosecutions, the accused shall enjoy
the right . . . to be confronted with the witnesses against him [and] to have compulsory process
for obtaining witnesses in his favor . . . .” U.S. Const. amend. VI. (emphasis added). The
Compulsory Process Clause allows the defendant to produce witnesses in his favor to support
claims of innocence or affirmative defenses. In sharp contrast, assuring the accuracy of evidence
against the accused constitutes the core of the confrontation right. Crawford v. Washington, 541
U.S. 36, 61-62 (2004).
Writing for the majority in Melendez-Diaz, Justice Scalia found that the Sixth
Amendment’s language “contemplates two classes of witnesses—those against the defendant and
those in his favor.” Melendez-Diaz, 129 S. Ct. at 2534. Justice Scalia noted that the prosecution
must produce the former, the defendant may call the latter, and there exists no “third category of
16
witnesses, helpful to the prosecution, but somehow immune from confrontation.” Id.
Setonia Code § 19.2-187.1 provides that the accused “shall have the right to call the
person performing such analysis or examination . . . and examine him in the same manner as if
he had been called as an adverse witness.” Setonia Code § 19.2-187.1 (2008). Melendez-Diaz
expressly rejected this arrangement, holding that when the accused is permitted to exercise his
affirmative Compulsory Process Clause right to subpoena the analyst, “that power—whether
pursuant to state law or the Compulsory Process Clause—is no substitute for the right of
confrontation.” Melendez-Diaz, 129 S. Ct. at 2540.
Melendez-Diaz established that when a state introduces a forensic laboratory certificate
without producing its author, allowing the defendant to subpoena that analyst fails to satisfy
Confrontation Clause. Id. The State of Setonia now asks this Court to dispose of the
fundamental requirement that the prosecution to call all prosecution witnesses to the stand.
However, the evolution of contemporary Confrontation Clause interpretation irrefutably supports
this key aspect of last term’s decision.
In 2004, Crawford v. Washington overruled Ohio v. Roberts, the decision previously
governing Confrontation Clause interpretation. Crawford, 541 U.S. 36. Under Roberts, the
confrontation right did not bar admission of statements that bore adequate “indicia of reliability,”
a test met when the evidence either fell within a hearsay exception or bore “particularized
guarantees of trustworthiness.” Ohio v. Roberts, 448 U.S. 56, 66 (1980).
The Court emphasized the ultimate goal of the clause, ensuring the reliability of
evidence, demands testing that reliability in the “crucible of cross-examination.” Crawford, 541
U.S. at 61. Crawford additionally found that where testimonial statements are at issue, “the only
indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution
17
actually prescribes: confrontation.” Id. at 69.
State and federal courts grappled with Confrontation Clause interpretation following
Crawford’s sea change. However, courts overwhelmingly limited such examinations to
determining retroactivity for collateral review, or to refining Crawford’s definition of testimonial
evidence. See generally Lave v. Dretke, 444 F.3d 333 (5th Cir. 2006) (holding Crawford should
not apply retroactively); United States v. Hagege, 437 F.3d 943 (9th Cir. 2006) (finding foreign
bank records outside Crawford’s definition of testimony); State v. Belvin, 986 So. 2d 516 (Fla.
2008) (holding breath test affidavits subject to Crawford).
By contrast, the U.S. Circuit Court of Appeals for the District of Columbia provided a
predictive, Crawford-based analysis to forensic affidavits, incorporating many of the tenets
underpinning Melendez-Diaz three years later. In Thomas v. United States, 914 A.2d 1 (D.C.
Cir. 2006), the court examined a number of state court decisions, both before and after Crawford,
and found laboratory analyst certificates naturally fell under Crawford’s purview.
Thomas held that the availability of the adverse witness "unfairly requires the defendant
to choose between his right to cross-examine a complaining . . . witness and his right to rely on
the State's burden of proof in a criminal case." Thomas v. United States, 914 A.2d 1, 16 (D.C.
Cir. 2006) (quoting State v. Snowden, 867 A.2d 314, 332-33 (Md. 2005)). Further, Thomas
found the right to present adverse witnesses for impeachment far inferior to the right of
immediate cross-examination, which “has always been regarded as the greatest safeguard of
American trial procedure." Id. (quoting New York Life Ins. Co. v. Taylor, 147 F.2d 297, 305
(1944)). Finally, a lack of confrontation eases the government's burden of proof, and the
“ultimate effect could be to blur the presumption of innocence and the principle that the burden
of proof on the prosecution never shifts throughout the trial.” Id. at 17 (citing Barbara Bergman,
18
Criminal Jury Instructions For The District Of Columbia, Instruction No. 2.08 (4th ed. rev.
2004)).
On June 25, 2009, Melendez-Diaz v. Massachusetts, in a straightforward application of
Crawford, reinforced the rule that a criminal defendant’s power to subpoena the preparing
analyst as an adverse witness cannot substitute for the right of confrontation. Melendez-Diaz, 129
S. Ct. at 2533.
Bauer’s case illustrates the potentially devastating impact of Setonia’s inadequate
procedural protections. Officers Almeida and O’Brian seized two samples of suspected cocaine
from Bauer. R. 3. One sample, seized from his residence, consisted of a “white substance.” Id.
The other sample, seized from Bauer’s person, consisted of a “white, rock-like substance.” Id.
The officers sent the two samples of suspected contraband to Setonia’s Forensic Science
Division for analysis. R. 4.
Setonia submitted two certificates reporting the results of the sample analysis. Id.
Inexplicably, the lab certificates admitted into State’s evidence failed to differentiate between the
two samples or to provide any evidence outside one simple conclusion—cocaine, approximately
260 grams. Id.
Bauer had every reason to question the accuracy of the certificates admitted in the State’s
case against him. The certificates contained the same sort of bare-bones statement challenged in
Melendez-Diaz, providing only that the confiscated substances were cocaine, weighing
“approximately 260 grams.” Id. (emphasis added). The certificates lacked any indication of tests
the analyst performed, how they arrived at this approximate weight, whether the analyst followed
correct procedures, or whether “interpreting their results required the exercise of judgment or the
use of skills that the analyst[] may not have possessed.” Melendez-Diaz, 129 S. Ct. at 2537.
19
Based on the sample weight identified in the certificates, Setonia charged Bauer with
possession with intent to distribute cocaine. R. 4. As defined in Setonia Code § 18.2-248,
possessing cocaine, “when the weight exceeds 250 grams, is punishable by a sentence of no less
than five (5) years but not to exceed forty (40) years.” Setonia Code § 18.2-248 (2008). The
threshold weight of 250 grams creates a grave distinction between simple possession’s maximum
sentence of one year under Setonia Code § 18.2-250 and the forty-year maximum under § 248.
Id. § 18.2-250.
The amount of cocaine involved constitutes an element of the crime charged under
Setonia Code § 18.2-250. Therefore, the prosecution must establish its weight beyond a
reasonable doubt. The analyst certificate pegged the sample’s weight at 260 grams—
approximately. Id. Ten grams, a meager 3.85% percent of the total sample, elevated the charge
against Bauer from misdemeanor possession of a controlled substance to felony intent to
distribute, carrying a maximum penalty of forty years incarceration. That minute percentage
arguably falls within the margin of error for a sample weight, particularly one qualifying that
weight as “approximate.” Despite glaring indicators of the affidavits’ questionable reliability,
Bauer could not subject the test results, which constituted a dispositive element of the charged
crime, to adversarial questioning to ensure their accuracy.
Four days after deciding Melendez-Diaz, this Court granted certiorari to hear Briscoe v.
Virginia, 129 S. Ct. 2858 (2009), granting cert. to Magruder v. Commonwealth, 657 S.E.2d 113
(Va. 2008). Briscoe bears striking resemblance, in both law and fact, to Bauer’s case.
Like Bauer, Mark Briscoe and Sheldon Cypress were tried on charges related to the
distribution of cocaine. Brief of Petitioners at 4, Briscoe v. Virginia, No. 07-11191 (U.S. argued
Jan. 11, 2010). The Virginia statutes at issue implemented procedures identical to Setonia Codes
20
§ 19.2-187 and § 19.2-187.1.
As with Bauer, the court admitted the prosecution’s principle evidence, consisting of
bare-bones certificates of analysis purporting to identify the seized substances as large quantities
of cocaine. Id. Unlike Bauer’s certificates, however, the certificates listed sample weights in
exact, not approximate, terms. Magruder, 657 S.E.2d at 116-17. When each petitioner objected
at trial on Crawford grounds, the trial courts overruled those objections, admitting each
certificate into evidence. Id. Cypress and Briscoe declined to call the analysts as adverse
witnesses and presented no evidence at trial, also like Bauer. Id.
While the dissenting Setonia Supreme Court justices conceded the certificates constitute
testimonial evidence under Crawford, the Virginia Supreme Court declined to address this point
in Magruder, which was decided pre-Melendez-Diaz, in affirming both convictions. R. 12;
Magruder, 657 S.E.2d at 118. The Supreme Court of Virginia held the certificates’ admission
acceptable, as the procedure adequately protected the rights of the accused by allowing them to
call the analysts as adverse witnesses. Brief of Petitioners at 5, Briscoe, No. 07-11191. Virginia
rejected the contention that the procedure shifted the burden of producing evidence, and found
both men waived their confrontation rights when they failed to object prior to trial. Id. Virginia
affirmed both convictions in a consolidated appeal. Id.
The two cases present minor distinctions of disposition and timing. Nevertheless, the
question presented remains the same—does such a burden-shifting scheme violate the
Confrontation Clause of the Sixth Amendment?
Melendez-Diaz plainly resolves both cases. The burden imposed by the Confrontation
Clause rests on the prosecution to present its witnesses. Melendez-Diaz, 129 S. Ct. at 2534. Both
statutory schemes fail to require the prosecution to produce laboratory analysts, and ask the
21
defendant to present the live testimony of prosecution witnesses. If a procedure leaves it to the
accused to call State’s witnesses, the burden of witness production unconstitutionally shifts from
the prosecution to the accused. Id. at 2540. This burden of production additionally transfers the
risk of witness no-shows to the accused. Id. The prosecution must present any and all evidence
implicating the defendant’s guilt, and to suggest otherwise flies in the face of that fundamental
principle of criminal trials.
Calling an adverse witness during the defense’s case in chief could prove disruptive to its
presentation, blur the presumption of innocence, and further shift the prosecution’s burden of
proof. If the defense must call not only his own witnesses in his favor, but also the prosecution’s
witnesses against him, the ultimate effect could gravely impact the defendant’s ability to mount
an effective defense.
Envisioning Bauer’s trial with his full confrontation rights preserved (the Melendez-Diaz
model), versus Bauer’s trial had he called the lab analyst as an adverse witness during his case in
chief (the Setonia model), illustrates the impediments defendants suffer under Setonia’s
configuration.
First, under the Melendez-Diaz model, the prosecution calls the analyst during his case in
chief, establishes the witness’s credentials, and develops the picture of how the analyst identified
and weighed the cocaine samples for the fact-finder. The defense cross-examines the analyst
immediately following the prosecution’s direct examination. This natural order subjects that
testimony to meaningful, adversarial challenge, while the direct examination remains fresh in the
fact-finder’s mind, the context of questioning unbroken. Bauer fully leverages the adversarial
advantages of cross-examination, aggressively challenging the analyst on the laboratory’s means
of weighing the contraband samples and the margin of error inherent to the process.
22
Under the Setonia model, Bauer inexplicably calls the analyst during his own case in
chief. Having openly identified the analyst as a hostile witness, the court permits the defense to
pose leading questions that challenge the previously-unseen analyst’s credibility. Absent cues
from the prosecution’s direct examination, defense counsel risks violating the cardinal rule of
examination—never ask a question without knowing its answer. Even absent a surprise
revelation that irrevocably harms his case, the leading questions may strike the fact-finder as
rude and unnecessary. More importantly, should counsel fail to develop information sufficient to
defeat the jury’s natural presumption that lab certificates accurately report sample weight and
composition, the examination only serves to highlight the State’s strongest evidence against his
client.
From the jury’s perspective, the analyst’s testimony under Setonia’s model prolongs the
trial, perhaps unnecessarily, and his aggressively challenging the lab analyst out of context and
without explanation may paint defense counsel in a negative light. The Melendez-Diaz model
follows the natural rhythm of a criminal trial—the prosecution produces evidence, the defense
challenges that evidence.
Setonia’s subpoena procedure additionally shifts the risk of analyst no-shows from the
prosecution to the accused. Melendez-Diaz, 129 S. Ct. at 2550. Under the Melendez-Diaz model,
the prosecution’s requirement to present the live witness or exclude the lab certificate guarantees
Bauer the right to cross-examine immediately following the introduction of the forensic
evidence. If the analyst fails to appear, Bauer cannot cross-examine, and the prosecution cannot
introduce the certificate. Under Setonia’s model, however, if Bauer subpoenas the witness and
he fails to appear, the prosecution gains the advantage of introducing the unchallenged forensic
certificate.
23
Setonia’s subpoena procedure, if permitted to stand, threatens to substantially erode the
Confrontation Clause in an untold number of criminal trials. Shifting the prosecution’s burden to
affirmatively produce witnesses required for its prima facie showing of the defendant’s guilt
carries grave practical implications that would surely not end with certificates of forensic
analysis. Under this arrangement, prosecutors could introduce the testimony of any witness by
affidavit, leaving the accused, “if he was able and if he dared, to call the witnesses to trial
himself.” Brief of Petitioners at 27, Briscoe, No. 07-11191.
Setonia’s statutory scheme does not merely implement a procedure by which the accused
may invoke confrontation rights. These statutes purport to protect the right of confrontation, yet
implement a woefully inadequate procedure that both deprives defendants of their right of
confrontation and shifts the prosecution’s burdens of production and proof to the accused.
B.
Setonia’s Procedure Unconstitutionally Prioritizes Prudential
Concerns Over Rights of the Accused.
The requirements of the Confrontation Clause after Melendez-Diaz do not unduly burden
state criminal justice systems. Reasonable notice-and-demand statutory constructions both
preserve the confrontation right, and conserve scant state resources. Setonia’s statutes, however,
fail to comport with the permissible notice-and-demand structure envisioned in Melendez-Diaz.
Admittedly, the accused do not enjoy an absolute right of confrontation. See Chambers v.
Mississippi, 410 U.S. 284, 295 (1973) (finding the confrontation right is not absolute and may
bow to accommodate other legitimate interests); Mattox v. United States, 156 U.S. 237, 243
(1895) (noting that the right to confront a witness "must occasionally give way to considerations
of public policy and the necessities of the case"). In times of declining tax bases and a limping
economy, laboratory analysts embody precious state resources. States understandably seek to
mitigate the strain of live testimony through various procedural means, including notice-and24
demand statutes.
As envisioned by Justice Scalia, these statutes, “[i]n their simplest form . . . require the
prosecution to provide notice to the defendant of its intent to use an analyst's report as evidence
at trial, after which the defendant is given a period of time in which he may object to the
admission of the evidence absent the analyst's appearance live at trial.” Melendez-Diaz, 129 S.
Ct. at 2541 (emphasis added). Setonia’s statute fails to require the prosecution to provide any
notice to the defendant, either of the intent to admit the certificates into evidence, or of the period
of time in which he may object. Yet, the dissenting Setonia justices insist this statue provides
“adequate notice to the defendant.” R. 13.
In accordance with Setonia Code § 19.2-187, Setonia filed the two certificates of analysis
seven days before trial without notifying Jack Bauer of its intent to introduce the certificates, or
of the limited time frame in which he must object. R. 4. Predictably, Bauer failed to object
during the statutory seven-day period. Id. When Bauer twice objected to the certificate’s
admission during his trial, the prosecution made no attempt whatsoever to either produce the
analyst or demonstrate unavailability. R. 4-5. Nevertheless, the court overruled both of Bauer’s
objections to the admission of the certificates, finding he waived his confrontation right by
failing to notify the State he wished to have an analyst present for testimony. R. 5.
Limiting the defendant’s options for invoking the confrontation right certainly preserves
precious state resources. However, the Confrontation Clause, like many other constitutional
protections, “is binding, and we may not disregard it at our convenience.” Melendez-Diaz, 129 S.
Ct. at 2540. The confrontation right’s denial or significant erosion calls into question the
“ultimate integrity of the fact-finding process, and requires that the competing interest be closely
examined.” Chambers, 410 U.S. at 295 (citing Berger v. California, 393 U.S. 314, 315 (1969)).
25
Prudential concerns cannot override the protections of the Confrontation Clause,
particularly when a simple notice-and-demand statute, as envisioned in Melendez-Diaz, could
achieve the same benefit. Under such a structure, the prosecution formally notifies the defendant
of his intent to introduce a certificate of laboratory analysis, apprising him of the time frame in
which he must invoke his confrontation right. The accused then either makes a formal, pre-trial
demand, or affirmatively waives the right to confront the analyst. If so demanded, the
prosecution produces the witness at trial during his case in chief, thereby assuming both the risk
of the analyst’s failure to appear, and the burden to prove every element of his case against the
accused.
This procedure fully preserves the confrontation right, streamlines the process of
producing forensic witnesses, and addresses the state’s interest in conserving resources. It
ensures defendants only demand confrontation when the expense of service is justified.
In the alternative, states could schedule pre-trial depositions of forensic analysts, during
which the accused could cross-examine. Procedures governing confrontation right invocation
need not break state budgets to adequately protect the rights of the accused.
26
CONCLUSION
For the foregoing reasons, this Court should affirm the ruling of the Supreme Court of
Setonia, vacate Bauer’s conviction, and remand the case.
Respectfully Submitted,
Attorneys for the Respondent
March 1, 2010
27
APPENDICES
APPENDIX 1
The Fifth Amendment to the United States Constitution provides:
No person shall be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a Grand Jury, except in cases arising in
the land or naval forces, or in the Militia, when in actual service in time of War or
public danger; nor shall any person be subject for the same offence to be twice put
in jeopardy of life or limb; nor shall be compelled in any criminal case to be a
witness against himself, nor be deprived of life, liberty, or property, without due
process of law; nor shall private property be taken for public use, without just
compensation.
The Sixth Amendment to the United States Constitution provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district wherein the crime shall
have been committed, which district shall have been previously ascertained by
law, and to be informed of the nature of the cause of the accusation; to be
confronted with the witnesses against him; to have compulsory process for
obtaining witnesses in his favor, and to have the Assistance of Counsel for his
defense.
A
APPENDIX 2
Setonia Code § 18.2-248 (2008)
[It is illegal] for any person to manufacture, sell, give, distribute, or possess with
intent to manufacture, sell, give or distribute, a controlled substance or an
imitation controlled substance.
Such a crime, when the weight exceeds 250 grams, is punishable by a sentence of no less than
five (5) years but not to exceed forty (40) years.
Setonia Code § 18.2-250 (2008)
[I]t is unlawful for any person knowingly or intentionally to possess a controlled
substance unless the substance was obtained directly from or pursuant to a valid
prescription.
Such a crime is punishable by a sentence of no more than one (1) year.
Setonia Code § 19.2-187 (2008)
In any hearing or trial of any criminal offense . . . a certificate of analysis of a
person performing an analysis or examination, duly attested by such person, shall
be admissible in evidence as evidence of the facts therein stated and the results of
the analysis or examination rendered to therein, provided (i) the certificate of
analysis is filed with the clerk of the court hearing the case at least seven days
prior to the proceeding if the attorney for the State intends to offer it into
evidence.
Setonia Code § 19.2-187.1 (2008)
The accused in any hearing or trial in which a certificate of analysis is admitted
into evidence pursuant to § 19.2-187 shall have the right to call the person
performing such analysis or examination or involved in the chain of custody as a
witness therein, and examine him in the same manner as if he had been called as
an adverse witness. Such witness shall be summoned and appear at the cost of the
State.
B