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Virginia Legislature Seeks to Undermine US Supreme Court Decision
Virginia General Assembly may pass law undermining Confrontation Clause rights in DUI and speeding cases.

State Sen. Ken Cuccinelli
The Virginia General Assembly will meet today in a special session to consider legislation designed to undermine a US Supreme Court decision handed down in June upholding the right of defendants to fully question forensic evidence presented at trial (view decision). Some Virginia lawmakers fear that recognizing the rights of defendants under the Confrontation Clause of the US Constitution could cost the state a significant amount of money.

"This is an important thing to fix," Governor Tim Kaine (D) said in announcing the special session.

A 5-4 high court majority ruled in the case Melendez-Diaz v. Massachusetts that it is insufficient for the prosecution to produce a paper certificate stating the results of forensic testing in a court case. Instead, the prosecution must make the scientist who performed the test available for cross-examination. The decision could have wide-ranging application in cases where such certificates have traditionally been taken for granted. For example, the Virginia Department of Forensic Science personnel who calibrate the breathalyzer machines every six months for use in driving under the influence (DUI) cases and the personnel who certify the accuracy of radar and lidar machines would need to testify under the Melendez ruling.

State Senator Ken Cuccinelli (R-Fairfax County), the Republican candidate for state attorney general, was first to call for the special session. His legislation, Senate Bill 5001, would create a "notice and waiver" system that requires the defense to notify the court ten days prior to trial if it wants technicians to testify. If the defense fails to object at trial to the absence of a technician, the right to confrontation is considered waived. The bill would also authorize the use of two-way videoconferencing to allow technicians to testify without the burden of traveling to each jurisdiction in person.

Cuccinelli's bill has more subtle effects, including the denial of confrontation rights for cases where the state declares the crime a "civil" offense to evade due process protections afforded by criminal procedures. This includes DUI cases where so-called administrative procedures are used to impose punishments such as license revocation and suspension. Cuccinelli's legislation would have technicians testify not under cross examination, but as adverse witnesses called by the defense. University of Michigan Law Professor Ralph W. Aigler, argues that such a setup is inadequate for protecting the rights of defendants. Aigler is defense counsel in the case Briscoe v. Virginia which the US Supreme Court agreed to take up in June. Case briefs discuss in detail the pitfalls of treating technicians as adverse witnesses, as proposed by Cuccinelli.

"These considerations make the opportunity for confrontation offered under the proposed procedure quite inferior to that provided under the Green rule, and a fortiori inferior to the opportunity provided when the prosecution puts the witness on the stand and the witness testifies on direct to the material propositions at issue," Aigler wrote in 2005.

Even proponents of the General Assembly's special session believe the supreme court ruling in the Briscoe case and a companion case Magruder v. Virginia could ultimately undo the legislature's work.

"It's not clear that we'll be able to make statutory changes that will completely resolve the matter because we expect the supreme court to speak about it further when the Magruder-Briscoe case is decided," Governor Kaine said. "But since that likely will not be until some time into 2010, we feel like we need to go ahead and act now to make sure that the criminal cases that are pending now in the court are handled in an orderly fashion."

A copy of Senate Bill 5001 is available in a 150k PDF file at the source link below.

Source: PDF File Senate Bill 5001 (Virginia General Assembly, 8/19/2009)

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