Donald said on June 28, 2009  

If I understand what you're saying about the VA statute and Magrouder, there still might be a problem. If I understand the VA statute correctly, the prosecutor has to send notice to defense counsel, who can then give notice that he wants the lab tech to show up at trial. Fast forward to trial. Prosecutor then may still seek to admit the lab report into evidence, and defense counsel is now entitled to call the lab tech, since he previously said he would.

The problem happened, though, at the second the report was admitted into evidence. Melendez-Diaz means that the report should only get in through the testimony of the lab tech during the prosecution's case in chief. You cannot confront a lab report. The prosecution rests having established a material fact through non-confrontable testimony.

What if VA passed a law permitting a police officer to testify as to what a crime victim told him (regardless of a the presence of a hearsay exception), and that the defense could then call the victim as an adverse witness? Certainly, that wouldn't be permissible under Crawford. Since lab reports are testimonial, neither can the VA statute.

Isn't the answer just a clean notice-and-demand statute? Prosecutor gives notice, and defense counsel has to demand testimony or else the report is admissible....seems pretty easy.

 Ken Lammers said on June 28, 2009  

If the prosecutor has notice that the defendant wants the expert at court and does not call that witness himself he has committed major error. Even if the case did proceed as you lay it out, the defendant, by not objecting when the prosecutor introduces the certificate, would have waived the introduction of the certificate as evidence. If the defendant objects at the introduction of the certificate and the prosecutor still doesn't call the expert he has committed even greater error.

While it is my fervent hope that Virginia not starting writing this type of statutory plan for other types of evidence in a criminal trial, if it did so it would be a notice and demand statute and just as valid as this one, with the same theoretical problem as this one, and the same near impossibility of it ever being an appealable issue.

And, yes, I hope the General Assembly will rewrite the statute, but for now we in Virginia must deal with this statutory plan.

 Anonymous said on June 29, 2009  

I agree with Donald. When the Court says that "the Con-frontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court," it seems to be expressing a perspective hostile to the statutory scheme set out in Va. Code Sec. 19.2-187.1. I think that we [prosecutors] are in for some stormy weather.

 Donald said on June 29, 2009  

Of course, defense counsel should object at the time of admission. I was assuming that the certificate would be admitted over objection, with the trial judge ruling that the remedy was to permit the defendant to call the lab tech during his case.

But post-Melendez-Diaz, admission of the certificate might be plain error and subject to reversal even without an objection.

 other donald said on June 29, 2009  

There seem to be two Donalds posting in Ken's comments section (the other one is more eloquent than I).

Just jumping in to note that the case granted today by Scotus is Briscoe/Cypress only (i.e. Magruder didn't appeal beyond SCOVA), and the attorney who sought certiorari, a UMichigan law prof., has a blog that's rather interesting:

http://confrontationright.blogspot.com/