So, now the US Supreme Court has decided to take a second opportunity to look at Notice/Demand statutes and the confrontation clause.

Having watched the continuing angst over Melendez-Diaz, I started asking around as to why everyone is so worried in light of Virginia's Magruder decision. The answer I got back from several people was "because Magruder is before the Supreme Court too." Of course, nobody seemed to know anything else, so I went looking.

After searching for "Magruder" and not finding anything, I came upon it when I searched for the other parties who had been consolidated in the appeal to the Virginia Supreme Court: Briscoe and Cypress (apparently Magruder must not have appealed his case to the federal supreme court).

Here's the timeline for the case to date:

May 29 2008 Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due July 3, 2008)
Jun 10 2008 Order extending time to file response to petition to and including August 4, 2008.
Aug 1 2008 Brief of respondent Virginia in opposition filed.
Aug 14 2008 DISTRIBUTED for Conference of September 29, 2008.
Aug 14 2008 Reply of petitioners Mark A. Briscoe, and Sheldon Cypress filed. (Distributed)
Jun 25 2009 DISTRIBUTED for Conference of June 29, 2009.

This case has not been granted certiorari by the US Supreme Court (otherwise it would have a "Petition GRANTED" entry). It's still up in the air and at this moment the controlling case in Virginia remains Magruder.

Beyond this, I've had a couple of defense attorneys I know swear to me that the language in 19.2-187.1, "The accused . . . shall have the right to call the person performing such analysis . . . and examine him in the same manner as if he had been called as an adverse witness" shifts the burden to the defendant to bring the expert to trial and call him as the defense's witness.

The party which subpoeanaes the expert to trial is a red herring, since even if the defendant was required to subpoena the expert, subpoenaing is different from actually "calling" the witness at trial. We've all seen cases wherein people are subpoenaed yet never testify. Even so, there is nothing in the statute which requires the defendant to subpoena the expert. The last sentence of the statute is instructive here: "Such witness shall be summoned and appear at the cost of the Commonwealth." This appears to be a poorly written requirement that the Commonwealth summon and pay for the appearance of the expert. Even if one is not convinced by an initial reading, and thinks that the General Assembly had to instruct courts that criminal case subpoenaes are paid for by the State, it's commonsense that the way in which the Commonwealth would pay the "cost" would be for it to arrange the subpoena and any required expenses pretrial. Still, as I wrote previously, the statute really needs the General Assembly to go in and make some changes in order to foreclose any arguments.

I still think that, at least as long as Magruder stands, it will be nigh unto impossible for a defendant to even raise the burden shifting argument. I can't figure a way in which the defendant could get to the point at which he could raise the issue without the cooperation of the Commonwealth. Even assuming arguendo that the defense wasn't required to demand the prosecution produce the expert and was somehow able to subpoena the expert without the Commonwealth finding out before trial, he'd have to raise his objection when the prosecution went to introduce the certificate of analysis during the Commonwealth's case in chief. In order to fulfill the requirements of Magruder, the defendant would have to inform the trial court that he was being required to call the witness. Magruder requires the defendant to (1) "avail [himself] of the opportunity to require the presence of a particular forensic analyst at trial", and be (2) "in the position of being forced, over [his] objection, to call a forensic analyst as a witness). Any prosecutor with half a brain cell will then withdraw the certificate and call the expert himself as part of his case in chief, foreclosing the burden shifting argument.

As things stand, the Commonwealth's statutory plan is on solid footing. Now we just have to wait for word from the Mount about the fate of Magruder (Briscoe/Cypress).

The whole crimlaw world seems to be going mad in Virginia as people have read Melendez-Diaz and reacted with either glee or panic. No one seems to realize that the entire question has already been settled and the Virginia appellate courts have already found the Virginia notice-demand scheme to satisfy the confrontation clause. Calm down. There's nothing new here. For goodness sake, go read Magruder.

The only possible real issue with the statutory scheme is whether it shifts the burden to the defendant to provide evidence. The Virginia Supreme Court also addressed this in Magruder:

The defendants do, however, claim that the statutory procedure, by its terms, shifts the burden of producing evidence and requires a criminal defendant to call the forensic analyst in order to exercise his right to confront that witness. This argument is not cognizable under the Confrontation Clause. Instead, it raises due process concerns that are not properly before us in these appeals. Because the defendants did not avail themselves of the opportunity to require the presence of a particular forensic analyst at trial, they were never in the position of being forced, over their objection, to call a forensic analyst as a witness. In other words, no defendant said to the respective circuit court, "the forensic analyst is here to testify but the Commonwealth must first call the witness." Like the situation in Brooks, "the trial court never had occasion to address the proper order of proof."

In other words, the statute might unconstitutionally burden shift, but only if the prosecutor screws up can a defendant preserve the issue for appeal. In order to give the defendant grounds for an objection, the prosecutor would have to get the demand, bring the witness in, and then refuse to call the witness, thus forcing the defendant to call the witness. I've never seen a prosecutor do that. If the defense has demanded that the expert witness be there, why wouldn't the prosecutor use her as a weapon against the defense? So, while the particular set of circumstances needed for the the objection to even be made could happen, it seems rather unlikely. No objection = no error preserved = no appeal of whether the statute unconstitutionally shifts the burden of proof to the defendant.

Yesterday, the federal supreme court rejected the use of certificates of analysis in trial, unless the defendant waives his right to have the actual person who did the analysis testify. It is an extension of Scalia's confrontation absolutism and has far reaching implications. Certificates have been used for a number of things: establishing DUI breath &/or blood levels, establishing that a substance is a drug, DNA, fingerprints, etc.

However, the court did allow one semi-exception to its rule: notice and demand regimes. Under these types of procedures, the prosecution gives notice of intent to use a certificate as proof and the defendant then has to demand the presence of the person who did the analysis or the defendant is deemed to have stipulated the content of the certificate as valid (waiving his right to confront). With this in mind, I went looking at the Virginia statutes governing this to see where we stand.

Under 19.2-187, as long as a certificate is filed with the clerk at least 7 days before trial it is admissible as evidence. Furthermore, upon filing the correct paperwork, the defense can require the court to send it a copy of the certificate at least 7 days prior to trial. 19.2-187.01 allows the certificate as proof of proper chain of custody. 19.2-187.02 allows blood reports taken at the hospital as evidence. 19.2-187.1 allows the defendant to demand that the person who did the analysis be present at trial (at prosecutor summons and cost) and gives the defense the right to "examine him in the same manner as if he had been called as an adverse witness."

Statutory Interpretation



One could wish that the statutory scheme was more tightly written, but it does appear that Virginia has a notice and demand structure in place. The notice is the required filing of the certificate of analysis no later than 7 days pretrial. Why else require a piece of the Commonwealth's evidence to be placed in the court file if not to give notice of the Commonwealth's intent to use it?



The demand part of the Virginia scheme is quite clear. The defense has an absolute right to demand the person who performed the analysis be present at trial under 19.2-187.1.

However, the language of 19.2-187.1 needs some serious reworking. It allows the defense "to call the person . . . as a witness therein, and examine him in the same manner as if he had been called as an adverse witness." While this does not impact notice and demand statutory scheme, it could give rise to burden-shifting arguments. The General Assembly needs to change that language to something like "to require the Commonwealth to call the person . . . as a witness therein" and it wouldn't hurt to drop the language after the comma (although it seems to just be a fancy way of saying "cross-examine"). As a practical matter, I've never seen a prosecutor not call the expert witness once the defendant has required the expert's presence and I think this may make any burden-shifting objection moot. Still, the statute needs fixing.


This statutory scheme was originally developed as a hearsay work around. It also presents the type of notice and demand regime required by the court to satisfy the Constitution's confrontation clause.

Topic: An outline of the Virginia Criminal Trial Process, from Magistrate thru Sentencing

Every so often the Supreme Court of Virginia seems to adopt a theme across a couple of cases. An example of this was in 2007 when the Court took a couple cases on Obstruction of Justice and significantly altered what the crime of Obstruction is. This time the Court, in two decisions authored by Justice Lemons, has outlined the parameters of the assertion of the right to counsel under Miranda.

I've not had a recent argument which involved assertion of the right to counsel, so I can't claim to be up on the nuances of this area. However, my general impression has been that up to a couple years ago Virginia appellate courts were very hostile to Miranda and required a very clear, unequivocal invocation of the right to have counsel present during questioning. Then things seem to have begun to get mixed up and I recall reading a case or two that seemed to start backing away from the courts' prior position. This month's decisions seem to be the Supreme Court's attempt to remove as much ambiguity as possible.

The question in Zektaw v. Commonwealth (No. 081738), the Court was to decide whether "Right, and I’d really like to talk to a lawyer because this – oh my God, oh, my Jesus, why?" during a custodial interrogation is a clear, unambiguous and unequivocal invocation of the right to counsel recognizable as such to a reasonable police officer. The crux of the matter is whether "I'd really like to" expresses a preference or is an attempt to assert the right. Both the trial court and the court of appeals ruled that it was not an assertion. The Virginia Supreme Court disagreed.

The decision deals quickly with the preliminary matter of whether the defense counsel waived the objection to the introduction of the statement by asking questions about the statement on cross. The Court states that questioning during cross or introducing a rebuttal witness does not waive the objection. Only introducing new evidence of the same character waives the objection.

Then the decision gets to the meat of the matter. The Court goes through an exhaustive list of Virginia cases in which it has ruled upon possible assertions of the right to counsel; it bolsters this discussion with cases from the federal supreme court. Following this, it characterizes the statements which do not assert the right to counsel as follows:

1) An attempt to clarify the right - "Can I have an attorney here?"

2) Asking for someone else to be present, but not specifically asking for an attorney.

3) The defendant stating he might want an attorney.

4) The defendant questioning the wisdom of going forward without an attorney - "Maybe I shouldn't talk to you without my attorney."

After having gone through all of these, the Court decides that "I'd really like to talk to an attorney" doesn't fit under any of these and is an unambiguous assertion of the right.

While the statement may look somewhat ambiguous - after all, it's not an assertion such as "I'm taking the 5th" or "I will not talk to you without my lawyer" - the US supreme court had already set precedent in this when it found "Uh, yeah. I’d like to do that" (in reference to the right to counsel just explained) not to be ambiguous. Smith v. Illinois, (No. 84-5332).In fact, the Virginia Supreme Court could have made this an extremely short opinion: Per Smith v. Illinois this matter is reversed.

In the second case, Commonwealth v. Ferguson (No. 081645), the defendant was more savvy and put his assertion of the right to counsel a little more clearly: "Nah, I want a lawyer, you know what I’m saying?"

Despite the clear invocation of the right to counsel, Officer One continues to interrogate him without getting a response. Eventually, Officer One "concludes the interview", turns off the tape recorder, and leaves the defendant in the room with Officer Two. Officer Two sits in silence with the defendant and, after a few minutes, the defendant begins to talk to Officer Two and eventually, after Officer Two reads the defendant his Miranda rights again, the defendant makes incriminatory statements.

The Commonwealth asserts that these were two separate interviews and that the second one was initiated by the defendant. Thus, while the first interview was unconstitutional, the second was cleared of any tint because it was a conversation by choice of the defendant.

The Supreme Court rejects this interpretation of the situation:

Whatever the significance of Ferguson’s comments that broke the silence, they were the product of the coercive interrogation and environment created by police. Surely, police may not use the product of such techniques as proof of a voluntary reinitiation of communication and subsequent waiver of the right to counsel.
. . .
Under the totality of the circumstances, we hold that this encounter was one continuous custodial interrogation conducted in such a manner as to deliberately disregard a clear, unambiguous and unequivocal invocation of the right to counsel and coerce Ferguson to incriminate himself.

No bright line here; all of these cases are to be decided on totality of their facts.

Larceny under Virginia Law

It has been long accepted in Virginia that while the losing party in a criminal case (usually the offender) is limited to arguing the objections made at trial, the party fighting for affirmation could scour the record and argue any issue which would support its position. Not any more.

On 04 June 2009, the Supreme Court of Virginia decided Whitehead v. Commonwealth. Much of the decision is a fairly standard insufficiency of the evidence decision. Then the Court, in a major change which it treats as though it were just following precedent, rejects the ability of the government to raise new arguments during the appeal:

It is true that "[w]e do not hesitate, in a proper case, where the correct conclusion has been reached but the wrong reason given, to sustain the result and assign the right ground." However, cases in which the party seeking affirmance failed to present the argument in the trial court, such that the trial court did not have an opportunity to rule on the argument, are not "proper cases" for the application of the doctrine. This principle applies in criminal as well as civil cases.
. . .
Because this argument was not made at trial, the Court of Appeals erred when it held that the evidence provided this additional rationale to support Whitehead’s convictions.
. . .
The constructive possession theory was not argued in the trial court or the Court of Appeals. Likewise, the “aiding in concealing” argument was not made in the trial court or the Court of Appeals; nonetheless, the Court of Appeals utilized the theory as a basis for its judgment. The concealment argument is made by the Commonwealth for the first time on appeal in this Court.
. . .
We ... will not consider the constructive possession or concealment theories advanced for the first time on appeal.

This is going to make the job of lawyers in the Attorney General's office much harder. Per the nature of the system, defense attorneys know to raise issues (and objections) in order to preserve them for appeals. On the other hand, prosecutors are neither trained nor prepared to do the same thing. Consider if the defense attorney researches and makes an objection to the entry of the axe as evidence in the Pitcairn axe murderer trial. He chooses his best argument and springs it in the middle of the case. Let's say there are 4 possible reasons that the axe should remain in evidence. The strongest is the 4th. When the prosecutor states reason number two the judge agrees and overrules the objection. How many prosecutors have you seen go on to put the other 2 reasons into the record? How many trial judges are going to tolerate such a thing? That's what the Supreme Court has ruled that he must do in order to preserve those rationales for the appeal.

On the other hand, I can remember losing an appeal when I was doing defense work because of something which wasn't raised in the trial court. It looked like a legitimate argument in the appellate court because the appellate court didn't understand the reality of the trial court from which the appeal had been granted. The trial judge, who did understand the realities of that jurisdiction, would have handled the same argument in a manner which I'm certain would have foreclosed the argument which allowed the AG to win the appeal.

It'll be interesting to see if attorneys actually pick up on this change or if they'll keep right on doing it the way they always have, without noticing the law has changed. The language I quoted above isn't prominent at the beginning of the opinion and a head note would probably just state this case is about sufficiency of the evidence in a receiving stolen property case. Sometimes, it's interesting how blind the legal community can be to changes like this when they happen.

Monday, on CrimLaw Live, I went over the different ways in which judges are selected: the federal method, the direct election method, the legislative election method, and (quite possibly the worst of all worlds) the Missouri method. I've been mulling it over and I think I've come up with what I think would be the perfect system for initial selection of trial judges: ability testing. What do I mean by ability testing? Well, I mean that we actually set up a testing system with three components - a written test, peer evaluation, and a board - all of which add up to 1000 points and rank candidates.

Initially, the possibility of becoming a judge must be an opt in choice. If an attorney is interested in becoming a judge he should be required to have taken a test similar to a Bar exam within a set period of time prior to the judicial position becoming open (3 to 5 years probably being the best time frame). Tests should be specific to the type of court the candidate wishes to be a judge in; for instance, a candidate in Virginia would have to choose whether to test for Juvenile and Domestic Court, General District Court, or Circuit Court. However, they should cover the breadth of those matters covered under the jurisdiction of the specific court. The test should not be a test for the ability to advocate; it should be an ability to restate the black letter law. This test should max out at 500 points.

Next should be peer evaluation. Members of the Bar who practice in the jurisdiction wherein the candidate would be eligible to become a judge should be confidentially polled as to their perception of the candidate's demeanor, perceived knowledge, and ability to communicate. A series of questions should be asked on something like a 5 point scale per question: 0=absolutely unfit, 1=unfit, 2=do not have enough information to make informed decision about this candidate, 3=average, 4=above average, 5=excellent. These replies should be tallied and averaged and make up a maximum of 250 points.

Finally should come an examination by a group of judges. These judges should not be from the area of the State wherein the attorney practices - preferably not not even from the same half of the State - and should not know the lawyer. This board should probably only take place after it has been determined that there will be a judicial opening. The candidates with the top 5 combined scores should be interviewed and the judges should score the candidate on his demeanor, ability to communicate his ideas, and apparent ability to apply legal knowledge. This should be scored at a maximum of 250 points.

At the end of this process there is a list of attorneys vetted for the judicial position and their levels of qualification: John Smith-874, Kerry Jones-810, Mike Greene-753; Paul Perry-735; & Mary Madre-710. The top scorer could automatically be made the judge or the names of the top 3 could be forwarded to either the Legislature or Governor with a mandate that one of the three be chosen within 30 days or the position defaults to the top scorer.

What's the advantage of all this? First of all, it has the best chance of any system I've seen of guaranteeing that the person elevated to a judicial position is actually qualified for it, both in terms of actual knowledge and the social abilities needed to be an effective trial judge. Second, it actually allows the judiciary to be an independent third branch of government. Every part of this system can and should be operated by the State Supreme Court. The politics involved in local good-ole-boy committee choosing, or a governor choosing or a legislature choosing or a party boss choosing who will be the judge will be pruned away by this system.

Of course, there needs to be some sort of reappointment system. This could be the Missouri "life tenure lite" system wherein the citizens vote "yes" or "no" every so often as to whether to retain a judge. Personally, I think this is a terrible system unlikely to remove the few bad judges who get through the selection process above or who develop a god-complex over the years. I prefer some sort of legislative check. When time comes for reappointment have the House do a simple up or down vote on Juvenile and domestic judges. Have the Senate do up or down votes for general district court judges. For the superior trial court the barrier to removal should be higher, perhaps a down vote by both houses. In any case, should a judge be poor enough that he is removed, he would be barred from the position and the judicial branch would provide a replacement as spelled out above. I think that this would eliminate much of the politics since the legislators would not be able to remove judges to replace them with their buddies or members of the legislators' party. It would give those who have issues with a particular judge a place to go for redress and allow the legislators some input as to how the laws they have promulgated are being enforced (for instance, the Legislature could remove a judge who refuses to enforce the anti-snipe hunting laws).

All-in-all, I think it's a better system for selecting judges than I've seen anywhere. However, I doubt we shall ever see its like.

Well, Ustream worked perfectly and streamed like a champ. I had some issues with keeping the broadcast concise and on point (yes, I rambled some) and I think it hurt the points I was trying to make. On the other hand, unlike when I filmed and edited offline it took a lot longer for me because I would reshoot (and reshoot and reshoot) trying to make things perfect and then spend even more time editing it. Livecasting meant it was one and done.

Yes, I am broadcasting in black and white. The reason for this is that I have the curly, energy-saving lights and they make color filming look yellow. I may switch back to folament style lights in the future if I keep doing this.

As of now, I plan to try and do this every Monday at 8 p.m. See ya'll next time.

Topic: Choosing a Judge