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Legislature approves Melendez-Diaz fix

Legislative conferees wrangled for much of the afternoon today before finally agreeing on a legislative response to Melendez-Diaz v. Massachusetts.

The U.S. Supreme Court ruled, 5-4, in that case in June that prosecutors generally must present the analyst who prepared a report unless the defendant gets notice of the prosecution’s intent to rely on the report and waives the appearance of the technician.

Prosecutors, legislators and officials at the Department of Forensic Science feared that prosecution of drug cases would grind to a halt without changes by the General Assembly.

Two major components of the fixes in House Bill 5007 and Senate Bill 5003 were agreed to early on.

One set up a “notice and demand” procedure cited approvingly in Melendez-Diaz. Under the system, a prosecutor notifies a defendant that he intends to use a sworn statement by the analyst rather than require the analyst to testify in person at trial. The defendant then may demand that he appear at the trial and be subject to cross examination.

The other extends the state’s speedy trial requirements by 90 days if a defendant is locked up and by 180 days if he is on bond to allow the prosecution to make sure that a technician is available to testify. State law now generally requires trial within five months of a probable cause determination if a defendant is incarcerated and nine months if he is free.

The tough issue was how to excuse the three technicians who inspect and maintain the state’s breathalyzers from any requirement that they have to testify.

The legislation attempts to do so by eliminating admission of the certification of the reliability of the machine from an element of the prosecution’s proof and making the reliability a matter of maintenance for the Department of Forensic Science.

The hangup came when some Senate Courts of Justice members insisted that the legislation still show that the prosecution had the burden of proof on reliability, while their House counterparts were adamant that such a provision would still require live testimony from the technician.

The final bill reflects the House view.

“This is truly a bipartisan fix,” House Majority Leader H. Morgan Griffith, R-Salem, told the House. But he acknowledged, “It is not perfect, and it will not solve all the problems created by Melendez-Diaz.”

Further work probably will necessary in the 2010 session of the legislature, he said.

By Alan Cooper

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