- The Washington Times - Saturday, July 4, 2009

RICHMOND | Virginia courts are feeling the impact of a recent U.S. Supreme Court ruling that prosecutors must make forensic examiners available for defense cross-examination about lab reports on drugs, ballistics and other trial evidence.

Defense attorneys began citing the ruling soon after it was issued June 25, even though the Office of the Attorney General contends that state courts are still bound by a somewhat different Virginia Supreme Court decision.

The U.S. Supreme Court ruled 5-4 last month that lab reports are testimonial evidence and thus subject to the Constitution’s Confrontation Clause. Virginia’s highest court concluded last year that the state law satisfies that portion of the Sixth Amendment because it allows the defense to subpoena the lab scientists to testify.

In the case decided June 25, the U.S. justices ruled in favor of Luis Melendez-Diaz, who challenged a lab analysis that confirmed cocaine was in plastic bags found in the car in which he was riding. Massachusetts courts had rejected his claim that he should be allowed to question the lab scientist about testing methods and other issues.

Whether the Virginia law is constitutional after the U.S. Supreme Court ruling in Melendez-Diaz v. Massachusetts will be cleared up eventually. The nation’s highest court agreed Monday to hear an appeal of the Virginia Supreme Court’s decision. Until then, the situation in Virginia will remain unsettled.

Richmond defense attorney Elliott Bender said he used the Melendez argument for the first time in Hanover County General District Court. He argued that the Melendez ruling means Virginia improperly puts the onus on the defendant to make sure the examiner is available to testify. The judge has yet to rule.

“The defendant has no burden to put on any evidence,” Mr. Bender said. “It’s always been an obligation the government had - to put on a case. It should always be their burden.”

State Solicitor General Stephen McCullough said he does not dispute that the government has to make the case. But he said it’s permissible to require the defendant to take steps to preserve his Confrontation Clause rights. He said that is similar to other duties imposed on defendants, such as requiring them to notify prosecutors if they intend to present evidence of an alleged victim’s sexual history in a sex-crime case.

Virginia’s law requires prosecutors to submit any lab reports they plan to use as evidence a week before a hearing or trial. If the defendant doesn’t demand that the examiner testify, he has waived his Confrontation Clause right.

Mr. McCullough said the Melendez ruling signaled that such “waiver-and-demand” statutes are permissible in concept and that “the next question for the Supreme Court is: Which types of these state laws are acceptable?”

Meanwhile, defense attorneys likely will continue to test Virginia’s law in courts throughout the state.

“I think it would be malpractice if they don’t,” said state Delegate David Albo, Fairfax Republican and chairman of the House Courts of Justice Committee. Mr. Albo said he expects his fellow defense attorneys will be aggressive in raising Melendez arguments.

“The defendant may want to tee up the argument that the Supreme Court of Virginia got it wrong,” Mr. McCullough said. “But if you are a trial judge, it’s binding.”

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