Va. Lawmakers to Address High Court Ruling on Forensic Analysts

By Tom Jackman
Washington Post Staff Writer
Tuesday, August 18, 2009

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.

"Very significant challenges remain on a day-to-day basis," said Peter M. Marone, director of the state's Department of Forensic Science. "Sharp increases in courtroom-related work do have an impact on the pace of case analysis the department would like to maintain in the laboratories."

Criminal defense attorneys were quick to pounce on a section of Virginia law that requires prosecutors to prove that a breath-testing machine has been calibrated in the past six months before a blood alcohol reading can be admitted as evidence. The lawyers began demanding that the technicians involved in maintaining the breath machines -- there are three technicians for the entire state -- testify in court that they calibrated the machine rather than just supply a certificate.

Some judges in Virginia threw out DWI cases when the technician did not appear. Some judges allowed the calibration certificate by itself. Legislators zeroed in on this apparent conflict, and it appears to be the top priority for the proposed bills.

Del. David B. Albo (R-Fairfax), head of the House Courts of Justice Committee, is also a criminal defense lawyer, and he agreed with those lawyers and judges who say that the Melendez-Diaz ruling requires the technician to testify. So he proposed removing that element from the items prosecutors must prove in a drunken driving case.

David Bernhard, a veteran Fairfax County defense lawyer, called the move a "troubling but predictable development." Allowing the machine's certification to be admitted without a technician's testimony, he said, "returns to what Melendez-Diaz seemingly sought to prohibit: shifting the burden to the defendant to disprove scientific foundation rather than the government being required to prove scientific foundation."

Legislators last week also considered allowing videoconferencing so that forensic scientists could testify from their offices and allowing field-testing of heroin and cocaine by police to be admitted as evidence. Those ideas did not make it into the final bills, which legislators hope will emerge identical from the House and Senate committees Tuesday and be approved by both houses Wednesday without the need for a conference committee.

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