Virginia feels impact of cross-examination ruling

RICHMOND, Va. (AP) - Virginia courts are feeling the impact of a
recent U.S. Supreme Court ruling that prosecutors must make
forensic examiners available for defense cross-examination about
lab reports on drugs, ballistics and other trial evidence.
Defense attorneys began citing the ruling soon after it was
issued June 25, even though the attorney general's office contends
that state courts are still bound by a somewhat different Virginia
Supreme Court decision.
The U.S. Supreme Court ruled 5-4 last month that lab reports are
testimonial evidence and thus subject to the Constitution's
Confrontation Clause. Virginia's highest court concluded last year
that the state law satisfies that portion of the Sixth Amendment
because it allows the defense to subpoena the lab scientists to
testify.
In the case decided June 25, the U.S. justices ruled in favor of
Luis Melendez-Diaz,who challenged a lab analysis that confirmed
cocaine was in plastic bags found in the car in which he was
riding. Massachusetts courts had rejected his claim that he should
be allowed to question the lab scientist about testing methods and
other issues.
Whether the Virginia law is constitutional after the U.S.
Supreme Court ruling in Melendez-Diaz v. Massachusetts will be
cleared up eventually. The nation's highest court agreed Monday to
hear an appeal of the Virginia Supreme Court's decision. Until
then, the situation in Virginia will remain unsettled.
Richmond defense attorney Elliott Bender said he used the
Melendez argument for the first time in Hanover County General
District Court. He argued that the Melendez ruling means Virginia
improperly puts the onus on the defendant to make sure the examiner
is available to testify. The judge has yet to rule.
"The defendant has no burden to put on any evidence," Bender
said. "It's always been an obligation the government had to put on
a case. It should always be their burden."
State Solicitor General Stephen McCullough said he doesn't
dispute that the government has to make the case. However, he said
it's permissible to require the defendant to take steps to preserve
his Confrontation Clause rights. He said that's similar to other
duties imposed on defendants, such as requiring them to notify
prosecutors if they intend to present evidence of an alleged
victim's sexual history in a sex-crime case.
Virginia's law requires the prosecution to submit any lab
reports they plan to use as evidence a week before a hearing or
trial. If the defendant doesn't demand that the examiner testify,
he has waived his Confrontation Clause right.
McCullough said the Melendez ruling signaled that such
"waiver-and-demand" statutes are permissible in concept, and
"the next question for the Supreme Court is which types of these
state laws are acceptable."
Meanwhile, defense attorneys likely will continue to test
Virginia's law in courts throughout the state.
"I think it would be malpractice if they don't," said state
Del. David Albo, R-Fairfax and chairman of the House Courts of
Justice Committee. Albo said he expects his fellow defense
attorneys will be aggressive in raising Melendez arguments.
"The defendant may want to tee up the argument that the Supreme
Court of Virginia got it wrong," McCullough said. "But if you are
a trial judge, it's binding."
In the middle of the legal tug-of-war is the state Department of
Forensic Science.
The department, with about 160 employees conducting casework
statewide, handled nearly 60,000 cases last year. The number of
tests would be even higher because many cases involve multiple
pieces of evidence, the department says.
"If these people are in court every day, they won't be
available to do their jobs," Albo said.
The department is aware of the possible effects of the Melendez
ruling, department spokesman Tom Gasparoli said.
"We are obtaining input on both the legal and practical
considerations from various sources, including prosecutors," he
said. "From a practical standpoint, the department needs to know
what to expect in the near-term and formulate the right plan to
handle it."
Albo said that in light of the U.S. Supreme Court ruling,
legislation might be necessary to ensure that defendants' rights
are protected without putting an undue burden on the forensics
department.

(Copyright 2009 by The Associated Press. All Rights Reserved.)