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Lab tests may require more than affidavit

Forensic scientists may be more frequent visitors to Virginia courtrooms as a result of the U.S. Supreme Court’s ruling yesterday that laboratory reports are testimonial evidence and therefore invoke the Confrontation Clause of the U.S. Constitution.

The court split 5-4, with Justice Scalia, the author of Crawford v.Washington, the 2004 opinion that rewrote the concept of what prosecutors and criminal defense attorneys usually put in the category of hearsay testimony.

The opinion shifted the analysis from whether an out-of-court statement is reliable to whether it was “made under circumstances which would lead an objective witness reasonably to believe that the treatment would be available for use at a later trial.”

That’s the whole purpose of laboratory analysis, so Crawford clearly applies, Scalia concluded in Melendez-Diaz v. Massachusetts.

It was not immediately clear whether Virginia’s method of keeping technicians at their benches – requiring the prosecution to submit the analysis seven days before trial to give the defense attorney an opportunity to subpoena them – will work as a substitute for an appearance by a technician.

The Washington Post reports that defense attorneys were citing the case in Fairfax courts by noon yesterday. That prompted a comment from Circuit Judge Jane Marum Roush,  “You’re going to make me read Justice Scalia before lunch?” Roush said she would rule later, after reading the opinion.

Some of Scalia’s opinion strongly suggests that the technicians will have to appear in court. “[T]he Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses. Its value to the defendant is not replaced by a system in which the prosecution presents its evidence via ex parte affidavits and waits for the defendant to subpoena the affiants if he chooses.”

Scalia also cites the recent National Academy of Sciences report to suggest that such “neutral scientific testing” may not be so reliable that the rigor of cross examination won’t enhance its accuracy.

By Alan Cooper

2 comments

  1. The defense attorney doesn’t have to subpoena the witness. He has to notify the Commonwealth he wants the witness there and the Commonwealth has to provide the witness.

    The Virginia Supreme Court ruled in Magruder (2008) that the Virginia statutory procedure satisfies the confrontation clause.

  2. The defense attorney doesn’t have to subpoena the witness. He has to notify the Commonwealth he wants the witness there and the Commonwealth has to provide the witness.

    The Virginia Supreme Court ruled in Magruder (2008) that the Virginia statutory procedure satisfies the confrontation clause.

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