Court decision could place more analysts in witness box

The Supreme Court announced Monday that it will review a case that asks if Virginia law sufficiently upholds a defendant’s right to cross-examine forensic analysts who tested evidence introduced in a trial.

The decision comes just days after the court ruled that defendants have a constitutional right to cross-examine those forensics experts rather than settle for a certificate of analysis.

The review of Virginia’s statute could provide answers for local lawyers who are curious about how last week’s court decision on the forensics experts would play out in state courts.

“Nobody is quite sure how this decision is going to affect the administration of the courts and the administration of our laboratories, but I think everyone is anticipating that the consequences could be pretty far reaching,” said Rhonda Quagliana, a Charlottesville defense attorney.

Will ruling strain courts?

The Supreme Court ruled 5-4 last week in favor of a Massachusetts defendant, finding that he and others have a constitutional right to cross-examine analysts rather than settling for the certificate of analysis. Since then, officials have been questioning whether a wave of subpoenaed analysts will strain the Virginia Department of Forensic Science and local courts.

Luis Melendez-Diaz was accused of distributing cocaine after Boston police searched a car in 2001 in a Kmart parking lot. Melendez-Diaz objected to the admission of certificates of analysis, which are notarized pieces of paper that show the results of forensic testing, because he said a defendant’s right to confront his own witnesses would require the analysts to testify in court.

Virginia’s “notice-and-demand” statute allows a defendant to demand that the analyst who tested the evidence be called into court. If he doesn’t make that demand, the certificate of analysis is admitted into evidence. Last week’s Supreme Court ruling would require the prosecution to automatically subpoena the analyst unless the defense agrees that a certificate is sufficient, said Claude Worrell, Charlottesville’s deputy commonwealth’s attorney.

“You now have the opportunity to play a bit of a game of ‘gotcha’ in court,” Worrell said. “You now have an interest in calling a forensic expert. It has expanded the realm of a possible defense in a case.”

Few experts testify

Worrell said his experience in Charlottesville courts is that defense attorneys rarely request an analyst’s presence in court. Pete Marone, the director of the Virginia Department of Forensic Science, said forensic examiners testify in “an extremely low percentage” of cases that they work on in the lab.

“On the surface, yes, it appears to present some significant challenges to [our department] and to labs across the country,” Marone said. “There are many factors involved, however, and the actual impact is far from clear at this juncture.”

The Virginia Department of Forensic Science has four labs and 160 employees who do casework. In addition to drug testing, the lab handles toxicology, firearms, latent fingerprints, DNA and other classes of evidence.

According to the department, law enforcement agencies submitted about 60,000 cases to the department in 2008. Of those cases, 32,000 cases were submitted for drug testing. The department said drug testing makes up for about 50 percent of the workload, which is handled by 43 drug section examiners statewide.

Most cases don’t make it to trial, Worrell said, and cases such as homicides that require a lot of forensic evidence take a long time to prosecute anyway.

The influence of the Supreme Court ruling has already been seen locally. Denise Lunsford, Albemarle County’s commonwealth’s attorney, said her office had a case on Friday in which the defense argued that the Supreme Court case applied to calibration for radar guns.

Public Defender Jim Hingeley said a judge in a Charlottesville court granted the prosecution’s request for a continuance in a case for a failure to re-register as a sex offender.

Hingeley said the continuance was requested because the public defender’s office was going to object to an affidavit that said the defendant hadn’t turned in his paperwork.

Lunsford and Hingeley said it is unclear how broad the Melendez-Diaz decision is. Although the case clearly applies to certificates of analysis for drugs, Hingeley said it might cover many more documents, such as DMV transcripts that are used to prove prior offenses.

Taking steps already

“Prosecutors and defense lawyers recognize the impact of this case,” Hingeley said. “They are taking steps to work within the requirements of the case.”

Defense attorney David L. Heilberg said he thinks the Supreme Court case could give defense attorneys more leverage for a plea agreement in non-violent cases that rely on certificates of analysis and similar paperwork. Heilberg said the court’s decision is especially important in federal court, where drug weight contributes to a defendant’s sentence.

The decision, which was written by Justice Antonin Scalia, referenced the research of University of Virginia law professor Brandon Garrett. Garrett, who co-wrote an article about invalid forensic analysis, said he was pleased with the decision.

Garrett said there are many cases in which a forensic analyst testifies at a trial but did not actually perform the lab analysis.

“It’s important for a person to do the relevant work. The Scalia opinion is important because it recognizes there have been a series of scandals recognizing poor forensic practices.”