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Virginia Prosecutors Must Call Technicians to Testify at Trial About Lab Work

In Virginia, and many other states, if the Commonwealth's Attorney needed to use scientific means to establish an element of proof of guilt in a criminal case, all that need be done was to enter into evidence the scientific testing results of the evidence and did not need to call the technician or scientist who prepared the test result as a witness to testify at trial.

This most often happened in prosecutions involving drunk driving and drug possession. Although one would think that it would be necessary to have the person preparing the report present at trial to testify about what testing was performed, how it was performed, and the meaning of the test results, the law made this unnecessary so long as the scientist or technician swore to accuracy of the written result (the certificate of analysis) as required by a state statute.

These laws were enacted as cost-savings measures. Given the rise in drug and DUI prosecutions, many more technicians would have to be employed by the states to handle the testings if others were away from the laboratories testifying in courts about their work on previouos cases. Of course, the defendant could subpoena the technician or scientist, but that shifted the burden of proof from the prosecution to the defendant, which is "going the wrong way" in criminal cases.

For decades defense lawyers have been complaining about the unfairness of that procedure, and last year the United States Supreme Court agreed. In the Melendez-Diaz case, the Supreme Court ruled that such reports were "testimony" and to be properly admitted into evidence the preparer of the report had to be called to testify by the prosecutor about the testing performed, unless before trial the defendant waived his right to confront the witness in person.

State legislators, including those in Virginia, scrambled in the wake of this decision to amend existing state laws on the admissibilty of such reports to try to conform the law in such a manner  to satisfy the Supreme Court's ruling, but at the same time lessening the need to hire a great many more technicians in the state labs.

There was one other avenue left to Virginia though, a case pending in the U. S. Supreme Court before Melendez-Diaz was decided that might give a more favorable ruling to state prosecutors than Melendez-Diaz. However, their hopes were dashed this week when the U. S. Supreme Court remanded (sent back to Virginia) the case of  Briscoe v. Virginia.

In the Briscoe case, the Virginia Supreme Court upheld the (pre Melendez-Diaz) Virginia statute that allowed prosecutors to use affidavits, not introduced through the live testimony of the preparer, to provide forensic evidence for drug analysis and blood alcohol level tests. The remand specified that the Virginia Supreme Court reconsider its decision in accordance with Melendez-Diaz.

As the law stands in Virginia now, if the Commonwealth intends to offer scientific evidence at trial, it must notify the defendant in advance of its intent, and advise the defendant that if he or she fails to inform the Commonwealth of their desire to cross-examine the technician or scientist who prepared the report within a specified period of time, the Commonwealth will be entitled to introduce the report without the testimony of the preparer.