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Guest Blog – Supreme Court Ruling Makes Virginia Lab Evidence Law Invalid

BOTH MCDONNELL AND CUCCINELLI NEED TO ASK GOVERNOR KAINE TO CALL THE GENERAL ASSEMBLY INTO SPECIAL SESSION TO CURE THE HARM CAUSED BY MELENDEZ-DIAZ v. MASSACHUSETTS DECISION

By Elwood Earl Sanders, Jr.

The Supreme Court of the United States on Thursday effectively struck down the Commonwealth of Virginia’s criminal lab report statute as violative of the Confrontation Clause of the Sixth Amendment.  The case not from Virginia, Melendez-Diaz v. Massachusetts, held that lab reports cannot be admitted against a defendant but rather the actual lab examiner has to be present to testify.  Laboratory reports usually deal with drugs but can also be used to introduce DNA testing as well as other forensic evidence.  The spectre of overworked lab analysts shuttled throughout the state and trial delay are unacceptable.  Lab reports arise in both the district courts and circuit courts.

The Virginia law states that the defendant has to be provided the lab report within seven days of trial and the defendant can subpoena the forensic scientist to the trial if they choose.  It is an acceptable balance between confrontation and compulsory process.

The Supreme Court said no.  That is not allowed anymore.  The lab analyst must come to trial.  The risk of clogging the dockets and traveling forensic scientists (there will have to be more scientists hired to continue the work of the ones out being “confronted” by defendants who go to trial for other reasons or make frivolous objections.

However, the Court gave an important exception:  The Commonwealth may require prior notice of the intent to assert the Confrontation Clause objection.

“The defendant always has the burden of raising his Confrontation Clause objection; notice and-demand statutes simply govern the time within which he must do so. States are free to adopt procedural rules governing objections.”  Slip Opinion, pg. 21.

The General Assembly must be called into special session to immediately correct the lab report statute requiring a confrontation clause objection to be made 21 days prior to trial so that the lab report author may be produced.  Reform is necessary to continue to keep drug dealers and other criminals off the streets and the courts from being clogged with numerous frivolous objections.  I ask both Bob McDonnell and Senator Ken Cuccinelli to ask Governor Kaine (between DNC travels) to call that special session immediately to protect the citizens of the Commonwealth.

About Elwood Sanders

Elwood “Sandy” Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia’s first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

16 Responses to “Guest Blog – Supreme Court Ruling Makes Virginia Lab Evidence Law Invalid”

  1. Tom White says:

    Looks like you were ahead of the curve on this one, Sandy. It is causing a big stir now. You were sounding the alarm minutes after the case was decided! Thanks for your insight.

  2. Tom White says:

    Looks like you were ahead of the curve on this one, Sandy. It is causing a big stir now. You were sounding the alarm minutes after the case was decided! Thanks for your insight.

  3. SCOTUS says:

    Good job SCOTUS for taking a non-political and strict interpretation of our constitution and refining our justice system. First you smack down gun control to the curb and now this. Now I know my tax money is going to some good use.

  4. SCOTUS says:

    Good job SCOTUS for taking a non-political and strict interpretation of our constitution and refining our justice system. First you smack down gun control to the curb and now this. Now I know my tax money is going to some good use.

  5. sandi says:

    Do you also think that this can be in effect in a case that a tip was called in to police and a driver was pulled over for driving on a suspened license. Would the common wealth of va have to produce the caller so that the defendant in the case has the right to face his accuser to prove that the issuing officer had probale cause to make the stop?

  6. sandi says:

    Do you also think that this can be in effect in a case that a tip was called in to police and a driver was pulled over for driving on a suspened license. Would the common wealth of va have to produce the caller so that the defendant in the case has the right to face his accuser to prove that the issuing officer had probale cause to make the stop?

  7. sandi says:

    Do you also think that this can be in effect in a case that a tip was called in to police and a driver was pulled over for driving on a suspened license. Would the common wealth of va have to produce the caller so that the defendant in the case has the right to face his accuser to prove that the issuing officer had probale cause to make the stop?

  8. sandi says:

    Do you also think that this can be in effect in a case that a tip was called in to police and a driver was pulled over for driving on a suspened license. Would the common wealth of va have to produce the caller so that the defendant in the case has the right to face his accuser to prove that the issuing officer had probale cause to make the stop?

  9. sandi says:

    Do you also think that this can be in effect in a case that a tip was called in to police and a driver was pulled over for driving on a suspened license. Would the common wealth of va have to produce the caller so that the defendant in the case has the right to face his accuser to prove that the issuing officer had probale cause to make the stop?

  10. sandi says:

    Do you also think that this can be in effect in a case that a tip was called in to police and a driver was pulled over for driving on a suspened license. Would the common wealth of va have to produce the caller so that the defendant in the case has the right to face his accuser to prove that the issuing officer had probale cause to make the stop?

  11. sandi says:

    Do you also think that this can be in effect in a case that a tip was called in to police and a driver was pulled over for driving on a suspened license. Would the common wealth of va have to produce the caller so that the defendant in the case has the right to face his accuser to prove that the issuing officer had probale cause to make the stop?

  12. sandi says:

    Do you also think that this can be in effect in a case that a tip was called in to police and a driver was pulled over for driving on a suspened license. Would the common wealth of va have to produce the caller so that the defendant in the case has the right to face his accuser to prove that the issuing officer had probale cause to make the stop?

  13. Tom White says:

    Well, I am not an attorney, but my take on this is Melendez-Diaz is a 6th amendment case and probable cause (reasonable cause) is a 4th amendment issue, so it would not be applicable. The main reason is that once the informant gave the information to the police, the officer can pull up a picture of the person, and car they are driving, and his record. He then becomes accuser when he sees the person driving a car. The information from the informant gave him "reasonable" suspicion to seize the driver and vehicle. Now, if the informant had not called, and the person was driving in a normal manner, and was pulled for no reason, that might be something to challenge in court.

    If the cop, for instance, recognized the driver as someone he arrested and was in court and saw the driver's license suspended, then saw the driver a week later driving the car, and pulled him, there would be no question about the stop. But the question for the court is, does it matter how he came by the knowledge the person was suspended? I would think it does not matter, he had a reasonable suspicion.

    And from this case http://supreme.justia.com/us/440/648/case.html SCOTUS ruled, EXCEPT IN THOSE SITUATIONS … I believe your case would fall into the "except" part.

    "Accordingly, we hold that, except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment. This holding does not preclude the State of Delaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. [Footnote 26] Questioning of all oncoming traffic at roadblock-type stops is one possible alternative. We hold only that persons in automobiles on public roadways may not, for that reason alone, have their travel and privacy interfered with at the unbridled discretion of police officers. The judgment below is affirmed."

  14. Tom White says:

    Well, I am not an attorney, but my take on this is Melendez-Diaz is a 6th amendment case and probable cause (reasonable cause) is a 4th amendment issue, so it would not be applicable. The main reason is that once the informant gave the information to the police, the officer can pull up a picture of the person, and car they are driving, and his record. He then becomes accuser when he sees the person driving a car. The information from the informant gave him "reasonable" suspicion to seize the driver and vehicle. Now, if the informant had not called, and the person was driving in a normal manner, and was pulled for no reason, that might be something to challenge in court.

    If the cop, for instance, recognized the driver as someone he arrested and was in court and saw the driver's license suspended, then saw the driver a week later driving the car, and pulled him, there would be no question about the stop. But the question for the court is, does it matter how he came by the knowledge the person was suspended? I would think it does not matter, he had a reasonable suspicion.

    And from this case http://supreme.justia.com/us/440/648/case.html SCOTUS ruled, EXCEPT IN THOSE SITUATIONS … I believe your case would fall into the "except" part.

    "Accordingly, we hold that, except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment. This holding does not preclude the State of Delaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. [Footnote 26] Questioning of all oncoming traffic at roadblock-type stops is one possible alternative. We hold only that persons in automobiles on public roadways may not, for that reason alone, have their travel and privacy interfered with at the unbridled discretion of police officers. The judgment below is affirmed."

Trackbacks/Pingbacks

  1. […] In the case of Melendez-Diaz v. Massachusetts, SCOTUS ruled that that the accused has the right to face their accuser. In this case, the Lab Technicians. Elwood “Sandy” Sanders wrote a guest blog which was published here a couple of days after the ruling. Sandy contacted me as soon as that ruling was handed down. Excellent foresight. You can read Sandy’s take on this important story here. […]

  2. […] was spot on. The ink was not even dry on the Supreme Court decision when Sandy sounded the alarm with this guest blog. And several follow up posts as the situation evolved. Well done, Mr. Sanders! July 22, 2009, at […]


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Tom White Says:

Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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