Richard Friedman, a professor at the University of Michigan Law School, appeared on behalf of the petitioners and Stephen McCullough, Virginia'a Solicitor General, appeared on behalf of the state.
Justice Sotomayor questioned Mr. Friedman on exactly how a notice and demand statute robbed a criminal defendant of his right to cross-examination. According to the old statute, the state was not required to bring in a lab technician in order to admit a lab report into evidence. The defendant, however, had the right to demand the presence of the lab tech for cross examination.
Justice Breyer questioned Mr. Friedman on the cost of forcing the state to produce all analysts and lab techs who took part in the testing in question. He seemed particularly concerned over the number of lab techs who would have to be produced to satisfy the rule in Melendez-Diaz.
When questioning Mr. McCullough, Justice Breyer was concerned that the "notice and demand" statute would allow for trial by affidavit and, as a hypothetical, asked if Sir Walter Raleigh's accusers made sworn statements that were introduced into evidence, how effective cross examining them about the conditions under which they made their statements would be.
Justice Ginsburg then proposed that Virginia's statute created a situation by which the state could introduce a lab report and rest their case; the defendant would then rest and request a directed verdict on the grounds the state had failed to prove its case; but the motion could not be granted because the lab report was in evidence.
Justice Scalia seemed bothered by the fact that the "notice and demand" statute placed the burden on the defendant and did not address, in plain language, the sanction, if any, against the state should a witness fail to appear.
It would seem to me that since it's the state who's seeking to limit the freedom of its citizens that the burden of prosecuting that case should fall on the state. The defendant is innocent unless proven guilty, not the other way around.
On a more light-hearted note, Mr. Friedman, in his argument, introduced us to the termorthogonal. According to Mr. Friedman, orthogonal means right angle, unrelated or irrelevant. According to Merriam-Webster, however, the term means lying at right angles.
"Supremes to revisit confrontation question" The Defense Rests (Dec. 21, 2009)
"Trying to get around the Sixth Amendment" The Defense Rests (July 23, 2009)
"No more trial by affidavit in Virginia drunk driving cases" The Defense Rests (July 18, 2009)
"Supreme Court upholds right of confrontation" The Defense Rests (June 25, 2009)