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.