01 July 2009

Changes the General Assembly Should Make Post Melendez-Diaz

Here are my suggested changes to Virginia's demand statute:
§ 19.2-187.1. Right to examine person performing analysis or involved in chain of custody.

The accused in any hearing or trial in which a certificate of analysis is may be admitted into evidence pursuant to § 19.2-187 or § 19.2-187.01 shall have the right to require the Commonwealth to call the person performing such analysis or examination or involved in the chain of custody as a witness therein, and examine him in the same manner as if he had been called as an adverse witness. If the accused does not notify the trial court and Commonwealth of the requirement prior to the trial date he waives his right to require the person's presence at trial.

Such witness shall be summoned by and appear at the cost of the Commonwealth. Unless waived by the Commonwealth, the Commonwealth shall have no less than 30 days from the date of notification by the accused to subpoena and bring the person to court.
I these changes would make the "demand" part of the close to bulletproof and keep the gamesmanship to a minimum.


other donald said...

The final sentence of the first paragraph ("If the accused...") is slightly problematic. It would presumably allow unknowing waiver of the 6th amendment right, if by some course of events the defendant doesn't become aware that there's a certificate of analysis in the case.

I would add a requirement that the Commonwealth give notice to the defendant of its intent to introduce the affidavit/certificate. I realize 19.2-187 sort of has such a requirement, but it's really only a discovery/production of documents requirement, upon defense demand, and is insufficient in light of Melendez.

Also, I gather that the statewide CWA listserve is filled with discussion of Melendez. Are you a participant in that?

Ken Lammers said...

The first sentence handles the problem you raise. If the prosecution has not given notice, the certificate may NOT be admitted.