Kaine Calls Legislative Session to Change Laws After Ruling on Trial Testimony

Gov. Timothy M. Kaine wants to revise Virginia laws in response to a recent U.S. Supreme Court decision.
Gov. Timothy M. Kaine wants to revise Virginia laws in response to a recent U.S. Supreme Court decision. (By Lawrence Jackson -- Associated Press)
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By Tom Jackman and Rosalind S. Helderman
Washington Post Staff Writers
Thursday, July 23, 2009

Virginia on Wednesday became the first state to convene its legislature to try to revise laws to conform to a recent U.S. Supreme Court ruling that says live testimony is needed to introduce scientific reports in criminal trials.

Gov. Timothy M. Kaine (D) has called the General Assembly into a special session Aug. 19 for what he said he hopes will be a one-day session to approve legislation that will have been agreed upon by both parties.

"If we don't solve it in a special session," Kaine said, "it really creates a potential problem of people who are charged with very serious crimes being able to escape conviction on technicalities."

Changing laws about trial testimony will not alleviate the crisis that prosecutors foresee, officials said Wednesday. Defense lawyers have begun demanding that lab analysts or breath-test technicians appear in court to explain their findings, they said. Responding to the increased demand for experts will probably take years, be expensive and require solutions that haven't been devised, those involved said.

"The heavy lifting, in the long haul, is going to have to come from administrative changes to the criminal justice system," said state Del. Stephen C. Shannon (D-Fairfax), a candidate for attorney general.

"I don't think there are going to be any quick and easy answers," said Pete Marone, director of Virginia's Department of Forensic Science, which performs nearly all of the lab testing and breathalyzer calibrations in the state.

The decision last month in Melendez-Diaz v. Massachusetts, written by Justice Antonin Scalia, ruled that introducing a lab sheet into evidence violates the Sixth Amendment right of a defendant "to be confronted with the witnesses against him." Many states, including Virginia, allow the defense to subpoena authors of scientific reports or findings and examine the authors. But that unfairly shifts the burden of proof to the defense, the court ruled.

After the ruling, defense lawyers began objecting to breath-test certificates in drunken driving cases in which the technician or the person who calibrated the machine wasn't in court. Virginia law requires proof of breathalyzer calibration, meaning confirmation that the machines work, every six months in DWI cases. Five cases in Fairfax County have been thrown out on such challenges.

State Sen. Ken Cuccinelli II (R-Fairfax), also an attorney general candidate, said that Virginia law needs to be changed to require prosecutors to present live testimony with lab or breath reports, as do other states that Scalia cited.

Cuccinelli and Shannon were part of a working group created by Kaine that recommended the special session. Kaine's move was the first in any state in connection with the court decision, said Scott Burns, executive director of the National District Attorneys Association.

Lab analysts in Virginia have a backlog of evidence to test without being obligated to travel to court, and requiring their live testimony will create even greater delays, officials said. The state has 160 employees who worked on 60,000 cases last year, said Tom Gasparoli, spokesman for the Department of Forensic Science.

And Virginia has just three people who calibrate and certify the more than 200 breathalyzer machines in the state, Marone said. They are rarely called to testify, but their failure to appear has resulted in blood-alcohol certificates being thrown out in some cases, including a recent Circuit Court case in Virginia Beach. Judges can convict for drunken driving based on a driver's behavior.

Prosecutors in the District and Maryland said they subpoena lab examiners for trials, dealing with scheduling and backlog problems as they arise.

Possible solutions being discussed in Virginia include using teleconferencing to allow lab analysts or breath technicians to testify from remote locations, Marone said. A short-term fix could involve paying lab analysts more overtime, Kaine said. Scheduling certain experts to testify only on certain days could be another answer.

Hiring or training more analysts and technicians is a long-term answer, Marone said, but budget restraints make that difficult.

Staff writer Dan Morse contributed to this report.

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