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Shifting the Burden, Take 3

By Richard D. Friedman

In a 5-3 decision yesterday in Magruder v. Commonwealth, Virginia joined those jurisdictions upholding a statute that makes certificates of lab reports admissible but provides that the accused may, if he wishes, call the author as a witness. This is an issue on which there is a clear split, and it is ripe for the Supreme Court to decide, perhaps when it decides whether such certificates are testimonial. In three prior posts ? one from 2005, one from 2006, and one from 2007 ?I have explained my view that these burden-shifting statutes are unconstitutional because they impair the ability of the accused to examine the author. By contrast, a statute that simply requires that the accused make a timely demand that the author testify at trial seems perfectly acceptable.

Given my prior postings, I won?t add much here. But a few comments:

(1) The defendants argued that if this burden-shifting procedure is acceptable, then the Confrontation Clause poses no obstacle to an entire trial being conducted by affidavit. The Virginia Supreme Court simply punted on the matter, saying (footnote 5) that it would not engage in speculation. Translation: ?We don?t want to consider the logical consequences of our decision.? It also added a mysterious sentence that, I think, amounts to saying that this procedure saves money, because otherwise (unless the accused waived the right) an analyst would have to testify at every trial requiring proof that the stuff in question is cocaine. Golly, and the state has to provide lawyers and juries, too, before it can get a conviction.

(2) In response to the argument that the procedure amounts to a shift of burden, the court punts again; it regarded this as a due process argument that is not cognizable under the Sixth Amendment and that was not properly presented; apparently a defendant would have to secure the attendance of the author and then claim that the state should call him. That seems to be quite a heavy procedural demand, but in any event it misses the point. The burden-shifting argument is not separate from the Confrontation Clause claim but an integral part of it: It is basically that by requiring the accused to call the author himself, the procedure impairs the accused?s ability to confront the author. Neither the majority (which indicates incorrectly that all that is at stake is timing) nor the dissent addresses what I think is the real impairment, elaborated in my prior posts: An accused has to take a far greater chance to call the author as his own witness (even if he gets to ask leading questions) than he does if he merely has to stand up and ask some questions on cross. Proof: The accused usually does cross a key witness who testifies at trial, and almost never calls one to the stand if the witness?s written testimony is admitted.

This points up a key difference between the type of statute here and a simple timely demand statute. With respect to both statutes, unless the accused demands live testimony the certificate is admitted. And with respect to both, if the accused does demand live testimony, he gets to examine the author. So given the option of a simple demand statute what is the advantage to a state of a burden-shifting one? It does not need this type of statute for a legitimate efficiency reason: The simple demand statute ensures that if the accused has no interest in examining the author then the author need not be produced. The advantages to the state of a burden-shifting statute are that (it impairs the opportunity to confront the author, and (2) therefore, the accused is less likely to avail himself of the opportunity.

Full post as published by The Confrontation Blog on March 01, 2008 (boomark / email).