A recent US Supreme Court decision on rules of evidence is a win for defense attorneys, and is causing administrative hassles for prosecutors across the Commonwealth.
In Melendez-Dias v. Massachusetts, the court ruled that forensic evidence reports, such as those identifying controlled substances in drug possession cases, or certifying Breathalyzer machines in DUI cases, are insufficient evidence on their own. The court determined that this evidence violated what is known as the “confrontation clause“, also known as the right to confront one’s accuser in court.
The net result of this decision is that prosecutors must have forensic analysts on hand to support this evidence, and the defense attorney will have an opportunity to cross examine the witnesses. The practical implication of this is that the Commonwealth only has a small number of experts available to testify in court, and there are thousands of potential cases per year where this documentation evidence has been used previously.
Virginia State Legislators Scramble to Adjust to the Reality of Melendez-Diaz
As noted in the Daily News Record and many other Virginia newspapers, the Melendez-Diaz decision is driving a special session of the Virginia General Assembly on Aug 19 to address the issue. Legislators are concerned that if they don’t have an answer quickly, judges many have to dismiss many drunk driving and drug possession, if the prosecutors aren’t able to provide the necessary witnesses.
Governor Kaine has stated that the situation may be able to be addressed administratively, without new legislation necessary. Commonwealth’s Attorneys will have to first file notice of intent to use the documentation without the required witnesses. Presumably many defense attorneys will object, but that legal process will probably buy them time to arrange and schedule the expert witnesses.
The Commonwealth will likely need to provide emergency funding for additional forensics experts to testify in courts across the state. This will probably be the product of the special legislative session.
The bottom line is, this chaos will create some defense opportunities for lawyers in Virginia DUI and drug possession cases.
And if you are an unemployed forensics expert, stay by your phone.
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