Today the United States Supreme Court vacated the state court judgment in Briscoe v. Virginia "and remand[ed] the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts."The issue in Briscoe is whether a Virginia state procedure, which allows a prosecutor to introduce a certificate of a forensic laboratory analysis instead of presenting the testimony of the analyst, avoids violating the 6th Amendment's Confrontation Clause by giving the defendant the right to call the analyst in the defense case. This issue, however, appears to be controlled by the 5-4 decision in Melendez-Diaz which was issued just last June. Many people wondered why cert had even been granted, including Justice Scalia who asked during oral argument: “Why is this case here except as an opportunity to upset Melendez-Diaz?”
I don't know why review was granted. But perhaps it became clear after argument that Justice Sotomayor is considering ruling differently than her predecessor, Justice Souter, who was part of the 5-4 majority in Melendez-Diaz, but is not quite ready to do so. That might explain why the Court sent it back to the state court for further consideration instead of just applying Melendez-Diaz. Given the lack of concern for precedent shown by the Court recently (see last week's opinion in Citizens United v. FEC for an example of Roberts-style judicial activism), I guess anything could happen if the case makes it back.
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