I have moved from a county that uses live witnesses from DPS to one that uses certificates of analysis and chain-of-custody affidavits to prove up lab results on drug analyses. It is now being challenged for violating a defendant's right to confront witnesses. I don't even know where to begin looking for cases on this.
I haven't researched the issue, but seeing as how the statute explicitly provides the defendant with an absolute right to object to the use of such certificates, how can it be argued that the statute prevents him from confronting the witness??
There is also nothing in the new law that prevents the defense from getting a subpoena, serving the witness at issue, and forcing that person to testify. Nothing except laziness on the part of the defense lawyer, that is.
I do not believe there are any Texas cases addressing that issue with respect to CCP articles 38.41 and 38.42. However, several other States have had similar laws on the books for several years and they have case law. Two States that come to mind are Virginia and South Carolina. You can find a discussion of the VA statute in 1 M.J., CRIMINAL PROCEDURE, � 56.
Ken Sparks, in our office, can give you a better understanding of where the exact language in our statute came from.
As far as defending your position, it seems to me that the defendant has waived any right to complain because all he has to do to compel the State to bring the chemist etc., is object 10 days before trial and the certificate is not admissible. He has not tipped his hand in anyway, the jury doesn't know about it so they cannot hold it against him and he is not put in a position that forces him call the chemist himself.
Moreover, the certificate of analysis is more akin to a business record than anything else.
That's my problem. The defendant has objected based on his right to confront. Do I still have recourse?
If the defense has filed a timely objection, then CCP Art. 38.41 and 38.42 are of no force and effect. Handle the case by calling the chemist as a live witness as before. In other words, you have no recourse.
Is this case still at the pre-trial stage?
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