Virginia Lawyers Weekly

The U.S. Supreme Court on June 25 handed down Melendez-Diaz v. Massachusetts, a case holding that laboratory analysts generally must appear in court rather than submit their findings through a sworn report.

Lawyers in Virginia with drunken-driving clients were citing the decision within hours of its release.

Interest in the case only increased when the Supreme Court granted a petition for a writ of certiorari four days later in Briscoe v. Virginia, a challenge that raised issues so similar to those in Melendez-Diaz that many observers thought the court would remand it to the Supreme Court of Virginia for consideration in light of that case.

Those issues dealt with the laws in many states that excuse laboratory analysts from testifying in court about their conclusions and reports.

“We’re all still trying to figure out what the heck is going on,” said Del. David B. Albo, R-Fairfax. But he added that Melendez-Diaz could present “the ultimate disaster” for the state’s criminal justice system.

Albo sees the potential for disaster from two perspectives. He’s a criminal defense attorney who deals frequently with lab reports, especially those filed in drunken driving cases. He’s also the chairman of the House Courts of Justice Committee. “The only thing I can say for sure right now is that this needs to be fixed,” he said.

The situation might be dire enough to call for a special session of the General Assembly, he added.

Del. H. Morgan Griffith, R-Salem, also a member of the courts committee with a busy criminal practice, said, “We’re going to have to have a lot of brainpower” to come up with a response to the case, and “it’s got to be bipartisan.”

The immediate response by prosecutors probably should be to ask defense attorneys if they want the analyst to testify and to request a continuance so that the appearance can be scheduled.

But the Virginia Department of Forensic Science barely has enough analysts to keep up with its caseload now, and at some point “we’re going to have speedy trial problems,” Griffith predicted.

On the other hand, “it may settle down after a few months,” he said. In many cases, a defense attorney has a choice of pursuing every legal argument or seeking mercy from a prosecutor or judge.

“If you want mercy, you won’t be bringing the lab tech in from Richmond,” he said.

The possibility that its analysts might wind up spending more time in court than at their benches certainly caught the attention of Department of Forensic Science.

The department “ is cognizant of the possible effects of the Melendez ruling,” said Tom Gasparoli, the spokesman for the department. “We are obtaining input on both the legal and practical considerations from various sources, including prosecutors.

“From a practical standpoint, the department needs to know what to expect in the near-term and formulate the right plan to handle it,” he said.

“The full implications of Melendez-Diaz and the grant of cert in Briscoe v. Virginia are still somewhat unclear, so a long-range approach has yet to be formulated,” Gasparoli continued. “As always, DFS will prepare itself to do what is necessary to achieve excellence from start to finish on each case sent to us for testing, including when we are called to testify.”

Until a legislative fix is in place, “I think it’s going to present a tremendous burden for the Department of Forensic Science and prosecutors,” said Henrico County Commonwealth’s Attorney Wade A. Kizer.

“The analysts can only be in one place at one time,” he said. If they’re traveling or waiting to testify in court, they can’t be at their benches analyzing drugs, blood samples, or firearms and bullets, he said.

Learned D. Barry, deputy commonwealth’s attorney in Richmond, said, “This is a devastating thing for us … . We can barely keep up with the drug load keeping the chemists in their offices. The state’s got to figure a way put more people in the labs.”

He predicted that “defense counsel, at least for the next six months, are going to have a field day.”

Concerns five years ago

Concerns about the constitutionality of laws that excuse analysts from appearing in court developed after the U.S. Supreme Court’s 2004 decision in Crawford v. Washington, which altered the conception 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 is “testimonial,” or “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,” Justice Antonin Scalia wrote for the majority in Crawford.

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

The court found that the reports are testimonial and generally cannot be admitted as evidence unless their authors are present and subject to cross examination.

Scalia didn’t stop there, however, and went on to examine the types of statutes that many states have adopted to give a defendant an opportunity to require the appearance of analysts but to allow admission the findings in the reports as evidence if they do not do so.

“[T]he Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court,” Scalia wrote. “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.”

He cited approvingly what he described as “notice and demand” statutes that allow the prosecution to notify the defendant that it intends to introduce a lab report as evidence. The defendant may choose not to challenge the report and allow it to be admitted, or he may require the prosecution to present the author of the report and any other chain-of-custody witnesses in its case in chief.

Under that standard, Virginia’s law would be deficient, according to the cert petition filed in Briscoe, Record No. 07-11191, the appeal of Magruder v. Commonwealth, the 4-3 decision from the Supreme Court of Virginia in February 2008 upholding Virginia’s laws. (Magruder, the first of three defendants in separate cases considered in the opinion, did not appeal.)

The petition was written by University of Michigan Law Professor Richard D. Friedman, who has a special interest in the Confrontation Clause and maintains a blog on it at www.confronta tionright.blogspot.com.

One of his former students, Joseph D. King, now in private practice, represented one of the defendants, Mark A. Briscoe, when King was an assistant public defender in Alexandria and invited Friedman to participate in the case.

Under the Virginia law, Code §§ 19.-2-187, 19.2-187.1 and 19.2-187.01, the lab report is admissible if it is filed with the clerk of the court hearing the case at least seven days before a hearing or trial.

The defendant may subpoena the analyst at state cost and may examine him as an adverse witness.

Under that scheme, Friedman argued, the defendant gets no direct notice of the prosecution’s intent to use the report as evidence without an opportunity to confront its author. Moreover, the ability to call the analyst as an adverse witness during the defense’s case is no substitute for the right conferred by the Confrontation Clause to have the prosecution call its witnesses and have them subjected to cross examination during the prosecution’s case, Friedman contended.

In his brief in opposition to the petition, Virginia Solicitor General Stephen R. McCullough asked the court to delay any consideration of Briscoe until the court had decided in Melendez-Diaz whether lab reports are testimonial because a ruling to the contrary would have made Briscoe moot.

Even if the reports are considered to be testimonial, Virginia’s approach does not violate the Confrontation Clause, McCullough wrote.

“In the overwhelming majority of cases, defendants have nothing to gain by cross-examining the analyst,” he said. “It is hardly surprising that nearly every State has a statutory framework in place that authorizes as a default the introduction of certain certificates of analysis and asks a criminal defendant to take some step to ensure the presence of a forensic analyst.”

The AG’s office elaborated its position in a statement after the high court granted cert.

“Given the holding in Melendez-Diaz, we are not surprised by the Court’s grant of certiorari in Briscoe v. Virginia, a spokesman for the office said. “In Melendez-Diaz, the Court signaled its approval of ‘notice-and-demand’ statutes.

“The next logical step in the Court’s jurisprudence is to decide which ‘notice-and-demand’ statutes are permissible, and which are not. We did not expect a remand in light of Melendez-Diaz, because the Supreme Court of Virginia expressly declined to hold whether certificates of analysis were testimonial – the core holding of Melendez-Diaz.

“Instead, the Supreme Court of Virginia concluded that our statute satisfied the Confrontation Clause, because it afforded the defendant an opportunity to cross-examine the analyst, under oath and face to face. The Supreme Court of Virginia concluded that our statute satisfied the Confrontation Clause, and we will vigorously defend that decision. Of course, until affirmed or reversed, the Supreme Court of Virginia’s decision remains binding on the lower courts in Virginia.”

Corinne J. Magee, a criminal defense attorney in McLean, said the electronic mailing list of the Virginia Association of Criminal Defense Lawyers is humming and she has been spending “a fair amount of time” explaining Virginia’s laws to attorneys across the country since the petition in Briscoe was granted.

She said the buzz on the mailing list is that Virginia is not a “notice and demand” state as described by Scalia and that Melendez-Diaz appears to apply to drunken driving as well as drug cases and to those in the chain of custody as well as to the analysts themselves.

Until the U.S. Supreme Court decides Briscoe, defense attorneys in Virginia can be expected to cite Melendez-Diaz any time a lab report is submitted without having the analyst available for cross-examination.

Moreover, Richmond attorney Robert E. Reibach said, the case “opens up a lot of options for people to be creative.”

As an example, the day after Melendez-Diaz was decided, Reibach challenged the admission of a reading from a radar gun because the technician who calibrated the tuning fork for the device was not available for cross-examination.

Caroline County General District Judge Frank L. Benser concluded, however, that the calibration was not testimonial because the technician was maintaining the device rather than preparing it for use at trial.

Kizer said he believes Scalia misinterpreted the practical effect of Melendez-Diaz. Scalia scoffed at the notion that defendants would use it to tie up the system. He noted that 95 percent of cases end in guilty pleas. Moreover, he said, “Defense attorneys and their clients will often stipulate to the nature of the substance in the ordinary drug case.

“It is unlikely that defense counsel will insist on live testimony whose effect will be merely to highlight rather than cast doubt upon the forensic analysis. Nor will the defense attorneys want to antagonize the judge or jury wasting their time with the appearance of a witness whose testimony defense counsel does not intend to rebut in any fashion ….

“[T]here is little reason to believe that our decision today will commence the parade of horribles” predicted by prosecutors and the four dissenters, Scalia said.

Kizer said he expects defense attorneys to start demanding the appearance of analysts as a matter of course.

“Why is there any reason to believe that a judge is going to penalize attorneys or defendants for exercising a right that the Supreme Court says he has?” he said.

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