Impact of Melendez-Diaz is lessening over time

The case of Melendez-Diaz v. Massachusetts has proved to be more of a paperwork burden for prosecutors and the Department of Forensic Science than a boon for criminal defendants and their attorneys.

The ruling generally requires laboratory analysts to testify in person unless a defendant affirmatively waives an appearance. It created enough concern among prosecutors and state officials that they scheduled a special legislative session shortly after the decision was handed down in June 2009.

“I think the General Assembly and all involved in that special session did themselves proud,” said Robert Bushnell, the commonwealth’s attorney in Henry County.

He says he doesn’t see many more lab techs now than he did before Melendez-Diaz was decided. Defense attorneys “are not using it as a tactical tool any more,” he said.

That said, “it’s still more than a minor pain to go through all the paperwork,” a burden that Melendez-Diaz switched from defense attorneys to prosecutors, he said.

Virginia Beach Commonwealth’s Attorney Harvey Bryant echoes that concern. “Our police department makes 2,500 DUI arrests a year,” or about 10 percent of the state total, and that requires 2,500 notices that didn’t have to be generated before Melendez-Diaz.

He agreed with Bushnell that the number of attorneys seeking tactical advantage has diminished. “Even those who were doing it to be obstructionists found it wasn’t obstructing anything,” he said.

At DFS, drug analysts are spending almost 10 times as much time traveling and testifying as they did before the U.S. Supreme Court decided Melendez-Diaz.

Still, that’s barely half the time they spent out of the lab during the three months after the Supreme Court decision came down.

Gail D. Jaspen, chief deputy director at the Department of Forensic Science, said Melendez-Diaz did not have a great impact beyond the initial demand for court appearances for controlled substance analysts and the administrative chore of responding to requests for subpoenas for the analysts. There are still than four times as many requests than the pre-Melendez-Diaz level.

Relatively few of the subpoenas actually result a court appearance – only 279 appearances compared of 2,121, subpoenas issued in the quarter ending in December 2010. The department also tracks the number of times the analyst actually testified, and the figure – 79 – suggests that some gamesmanship is still going on.

The numbers also suggest that prosecutors are issuing subpoenas at the same time defendants are charged and then telling DFS to ignore them when the defendant waives his right to have the analyst appear.

Jaspen said the department has responded to the increased demand by paying overtime and increasing its travel budget rather than adding analysts or support staff.

It also has tried to be smarter about scheduling court dates by assigning analysts to certain jurisdictions and asking prosecutors to designate days for drug cases so that an analyst can testify in multiple cases the same day.

“Everybody in state government has been asked to do more with less, and we’re doing our part,” she said.

Before Melendez-Diaz, the reliability of the analysis of drugs and of breath and blood tests was seldom an issue in most prosecutions. Virginia and most other states had laws that permitted sworn reports by analysts to be admitted as evidence without their appearance in court.

Some states have done it right, the Supreme Court noted in the case, with a procedure that requires the prosecution to notify the defendant that it intends to present the analysis through the sworn report unless the defendant demands the appearance of the analyst.

Under Virginia’s old procedure, the burden was on the defendant to demand the appearance of the analyst. If he did so, the prosecution had to summon the analyst at the expense of the state but was under no burden to present the analyst in the prosecution’s case.

Instead, the defense could call the analyst as an adverse witness in the defense case.

State defense attorneys were quick to respond to Melendez-Diaz. Some attorneys were citing it within hours of the issuance of the opinion, and the number of subpoenas for analysts jumped from 582 in June to 1,885 the next month.

During the special session, the legislature amended the law to require the prosecution to notify the defendant 28 days before trial of his intent to submit the report without an appearance by the analyst. The defendant has 14 days to object. If he does, the prosecution must subpoena the analyst and present his testimony during the prosecution’s case.

The legislation anticipated a surge in subpoenas for analysts by extending the state’s speedy trial law by 90 days if a defendant is locked up and by 180 days if he is free on bond.

Legislators also amended the law that required certification of the calibration of breath testing machines in drunken driving cases to be an element of proof when the prosecution relied on the test results to prove intoxication.

Under the new legislation, the calibration of breath testing machines is an administrative and technical matter for DFS rather an element of proof as it was before the case.

Finally, state law was tweaked in an attempt to eliminate Melendez-Diaz problems for preliminary hearings and for chain-of-custody witnesses.

Questions remained, with defense attorneys contending, and a few judges agreeing, that Melendez-Diaz required the prosecution to call chain-of-custody witnesses, present analysts at preliminary hearings as well as for trial, and summon the technicians who calibrate breath-testing machines.

Those concerns have largely disappeared, although House Bill 2405 was introduced this year to create a presumption of accuracy for a breath machine that generates a printed certificate of analysis.

The measure was in response to complaints that some judges still were requiring testimony from the technicians who calibrate the machines. The bill died in subcommittee after legislators concluded that more training for a wayward judge was a better answer than a potentially ambiguous statute.

Learned D. Barry, a deputy commonwealth’s attorney in Richmond, characterized Melendez-Diaz as “a total disaster” when the decision came down, but he said DFS has responded well and “the judges have been very good about granting continuances” when problems have arisen.

Melendez-Diaz created a right and required a procedure “that we need to be mindful of,” he said, “but we don’t need to let it completely change the system.”