Will forensics scientists in Virginia have to go to court for each and every test and analysis they do?

Virginia Lawyers Weekly seems to think so at their blog site:

Forensic scientists may be more frequent visitors to Virginia courtrooms as a result of the U.S. Supreme Court’s ruling today that laboratory reports are testimonial evidence and therefore invoke the Confrontation Clause of the U.S. Constitution.

The court split 5-4, with Justice Scalia, the author of Crawford v.Washington, the 2004 opinion that rewrote the concept of what prosecutors and criminal defense attorneys usually put in the category of hearsay testimony.

The opinion shifted the analysis from whether an out-of-court statement is reliable to whether it was “made under circumstances which would lead an objective witness reasonably to believe that the treatment would be available for use at a later trial.”

That’s the whole purpose of laboratory analysis, so Crawford clearly applies, Scalia concluded in Melendez-Diaz v. Massachusetts.

Head on other to their site to read the whole thing.

Just think of the impact this might have on prosecutions in the state if this is actually required. Requiring a scientists to come for a DNA test for a murder is one thing, but every drug charge is (usually) accompanied by a test by the Department of Forensic Science that states that the substance the suspect is accused of processing or selling was actually a drug. I don’t know how many of this test are done every year or how many are actually used at trial but if a tech that does a 100 of those tests a day has to be in a dozen jurisdictions on the same day just to testify for the cases there are going to some major problems.

2 Comments

  1. justice4all says:

    Most seem to think that it will be required, and the opinion makes sense. I personally don’t see how a document that essentially proves the ultimate issue in a case (whether or not something is a controlled substance, etc.) could be deemed non-testimonial. There is some debate as to whether Virginia’s existing statute – 19.2-187.1 – can withstand the decision as a “notice and demand” statute, but that’s not looking promising at this point. We may have an answer sooner than later though – I understand that the Supreme Court granted cert on the Virginia case on this issue – Magruder – today.

    But you’re right – it almost absolutely will make both DFS & Commonwealth Attorneys’ lives living hell for the foreseeable future.

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