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Tuesday, August 18, 2009
Courts - "Va. Rushes To Address Ruling on Analysts: Drug-Case Demands Have Strained State Lab"
Still pending before the Indiana Supreme Court are two cases which may turn on the SCOTUS ruling June 25th in the case of Melendez-Diaz v. Massachusetts. For details, see this June 24th ILB entry.
The ILB has had a long list of entries on the Melendez-Diaz decision and its implications.
Add to that list this lengthy August 18th story in the Washington Post, reported by Tom Jackman. Some quotes:
In July, the month after the Supreme Court ruled that experts' signed certificates alone are not enough to prove that suspected illicit drugs really are illicit drugs, defense attorneys in Virginia subpoenaed drug analysts 925 times. In July 2008, that number was 43.Officials with the state's Department of Forensic Science said that during the same month, their examiners spent 369 hours traveling to or testifying in courthouses across the state. In the previous 11 months, the examiners spent 230 hours going to court.
The courts committees of Virginia's General Assembly will start work Tuesday on emergency legislation designed to help the state respond to the Melendez-Diaz v. Massachusetts ruling, in which the Supreme Court said that drug or alcohol analysis certificates are "testimonial" and defendants are entitled to cross-examine the person who performed a drug or breath test. On Wednesday, the General Assembly will meet in a special session called by Gov. Timothy M. Kaine (D) specifically to respond to the impact of the ruling.
Among the proposals the legislature will consider:
-- Delete the requirement that prosecutors prove that a breath-test machine has been inspected and calibrated within the past six months. The machines must still be inspected every six months, and defendants can still challenge the machine's validity, but the inspection record would be designated a "business record," which Melendez-Diaz author Justice Antonin Scalia wrote "may well qualify as nontestimonial records" not subject to cross-examination.
-- Curb the right to a "speedy trial" when prosecution witnesses, such as lab analysts, are not available to testify, up to 90 days for those in jail and 180 days for those not in jail.
-- Require defense attorneys to formally object to a lab or DWI certificate in advance, and if they do, prosecutors must then use lab analysts as live witnesses in proving their case, to conform with Melendez-Diaz. Virginia law now forces the defense to call the analyst after his or her certificate has been admitted.
Although the new legislation might provide more breathing room for the state lab, legislators acknowledge that it does not address their most pressing need: more analysts, to examine not only drugs but also DNA, blood and other crime-scene evidence that defendants are challenging more frequently. That will have to wait until the General Assembly's regular session in January, by which time authorities think they will have a better idea of how this week's changes will affect the need for live testimony by the state's 160 scientists.
Posted by Marcia Oddi on August 18, 2009 01:36 PM
Posted to Courts in general