Supreme Court Revisits Case Requiring Lab Analyst Testimony Regarding Evidence (Updated)

In Virginia, if you’re pulled over and charged with reckless driving by speed, does the Commonwealth need to make the technician responsible for calibrating the radar gun available for cross-examination at your trial?


In June 2009, the Supreme Court ruled that prosecutors may not use crime lab reports in criminal trials against defendants unless the lab analysts who created the reports testify and subject themselves to cross-examination. The case of Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), generated controversy because prosecutors feared that courts and defense attorneys would require forensic analysts to spend a burdensome amount of time testifying at trials rather than performing their job duties. The practical effect of Melendez-Diaz could have impacted the validity of evidence presented at trial, such as chemical analysis for drug cases, blood alcohol analysis for drunk driving cases, and the accuracy of radar guns in reckless driving cases. The majority opinion of the Supreme Court downplayed these fears and instead emphasized that, regardless of administrative burdens, the Constitution’s Confrontation Clause granted criminal defendants the right to cross-examine their accusers, including lab analysts who tested evidence that form the basis of criminal charges. As onerous as the Melendez-Diaz requirement appears, states such as Ohio and Washington, had made lab analysts available for cross-examination at trial, thus complying with Melendez-Diaz.

However, less than six months after the Melendez-Diaz decision, the Supreme Court has decided to take a case that involved a drug prosecution in Virginia. The issue before the Court in Briscoe v. Virginia, Docket No. 07-11191, is whether Virginia Melendez-Diaz provided adequate rights to the defendant under the Confrontation Clause.

Although Briscoe involves a drug case, a decision by the Supreme Court would clarify the Commonwealth’s obligations in traffic cases, including reckless driving by speed. The equipment used by law enforcement officers in the Commonwealth to detect speed require calibration and certification by skilled technicians. Defendants currently have the right to request and cross-examine the technician about the accuracy and validity of a radar gun’s record of your speed. With representation by an experienced attorney, you will be able to navigate the court procedure that allows you to use every defense you may have at trial.

The Supreme Court has scheduled oral argument for Briscoe v. Virginia on January 11, 2010.

***UPDATE***

On January 25, 2010, the Supreme Court issued a short decision in Briscoe v. Virginia, vacating and remanding the decision of the Virginia Supreme Court. In effect, the Court reaffirmed the Confrontation Clause requirements set forth in Melendez-Diaz v. Massachusetts.

In reaction to Melendez-Diaz, Virginia passed a new law that provided formal procedures for defendants who request presence of lab analysts in court.

Under Virginia’s so-called “Notice and Demand” statute, if the Commonwealth used scientific data to support a criminal prosecution, the Commonwealth attorney will notify the defendant of the Commonwealth's intent to use forensic evidence without having the expert or lab analyst available for testimony. After receiving notice, the defendant can object and require the Commonwealth to make the lab analyst available in court. The court will then require the Commonwealth to produce the lab analyst, but, in turn, allow the Commonwealth time to schedule analyst.