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What will Briscoe do to Melendez-Diaz?

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Yesterday, the Supreme Court held oral argument in Briscoe v. Virginia, which will decide how much of Melendez-Diaz v. Massachusetts129 S.Ct. 2527 (2009) — survives.

Melendez-Diaz holds that the "Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits, and the admission of such evidence against Melendez-Diaz was error."

Here are the Briscoe oral argument transcript and the case briefs.

As has been repeatedly discussed among Briscoe watchers, all eyes are on Justice Sonia Sotomayor, in that she will be the swing vote to decide the extent to which Melendez-Diaz survives. Justice Sotomayor replaced Justice David Souter, who joined Justice Scalia’s 5-4 opinion along with Justices Stevens, Ginsburg, and Thomas. Will any of Melendez-Diaz’s dissenters — Chief Justice Roberts along with Justices Kennedy, Breyer and Alito — budge to accept Melendez-Diaz as a stare decisis done deal, or will they say that Melendez-Diaz was too incorrectly and recently decided to keep in place? We will find out in this Supreme Court term.