Post By Sandy Sanders
I now understand that the Democratic candidate for Attorney General seeks to accuse Sen. Cuccinelli of not supporting his breath test bill and thus heading off this legal system crisis caused by the Melendez-Diaz decision.
The Jaded JD does a nice job of answering many objections at his blog entry on this matter. But I need to add a point or two. Delegate Shannon’s bill does not discuss confrontation, does not require the defendant to state his intent to raise a Confrontation Clause objection prior to trial, and is limited to breath tests in DWI cases.
The Melendez-Diaz case in fact effectively exempts breath tests and similar from its reach (footnote 1 from the opinion of the Court):
Contrary to the dissent’s suggestion, post, at 3–4, 7 (opinion of Kennedy, J.), we do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case. While the dissent is correct that “[i]t is the obligation of the prosecution to establish the chain of custody,” post, at 7, this does not mean that everyone who laid hands on the evidence must be called. As stated in the dissent’s own quotation, ibid., from United States v. Lott, 854 F. 2d 244, 250 (CA7 1988), “gaps in the chain [of custody] normally go to the weight of the evidence rather than its admissibility.” It is up to the prosecution to decide what steps in the chain of custody are so crucial as to require evidence; but what testimony is introduced must (if the defendant objects) be introduced live. Additionally, documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records. See infra, at 15–16, 18.
This paragraph in my view exempts breath/blood tests and speeding calibrations from a Confrontation Clause analysis. Hence Del. Shannon’s bill may be necessary for other reasons, it does not answer the need for the special session.
There is still a need for a special session immediately to pass an emergency bill to correct this problem. Del. Shannon has not addressed the issue; Sen. Cuccinelli has shown leadership on this question vital to the public safety. Voters will have to decide who is more worthy to be our chief law officer.
PS to Sen. Cuccinelli’s campaign: This sounds like a whale of a TV or radio commercial for the later campaign.
Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written seven scholarly legal articles and was an adjunct at T. C. Williams School of Law. (None of these titles imply any endorsement of Sanders’ views)