Virginia Hernandez Lopez admitted to knocking back two shots of tequila with Sprite chasers on an August night in Julian, Calif., a couple of years ago. But she said she was not drunk when her Ford Explorer collided with an oncoming Toyota pickup truck later that night, killing its driver.

In May, a California state appeals court affirmed Ms. Lopez�s conviction for vehicular manslaughter. Her blood-alcohol level two hours after the accident was, according to a report presented to the jury, just over the legal limit of .08 percent.

But the appeals court reconsidered the case after a decision in June from the United States Supreme Court that prohibited prosecutors from introducing crime lab reports without testimony from the analysts who prepared them.

The appeals court reversed Ms. Lopez�s conviction, saying prosecutors had violated her constitutional right to confront witnesses against her by failing to put the analyst who prepared the blood-alcohol report on the stand.

But now, in an unusual move, the Supreme Court will hear arguments on Jan. 11 in a new case that raises questions about how lower courts may carry out its six-month-old precedent. Many state attorneys general and prosecutors are hoping the court will overrule its decision in the earlier case, Melendez-Diaz v. Massachusetts, before it can take root, saying it is a costly, disruptive and dangerous misstep.

Details.

I presume the analyst will always be subject to subpoena by the defense if their presence for meaningful cross-exam is truly essential anyway. Comparing the utility of Melendez-Diaz to Gideon in the search for the truth is rather ridiculous.

Maybe what we need is a rule that allows someone in the lab to review all testing (presumably making that person's testimony admissible). That one person could then be the traveling spokesperson, while the rest of the analysts stay in the lab doing what they know best.

I take it the Virginia procedure is very much like the certificate of analysis used in Texas, so our statute is now at risk too.

No, the Texas statute is not at risk. Texas provides a process by which the D procedurally defaults any right to object at trial absent a pretrial objection to use of the affidavit. The original Melendez opinion approved that approach.

Va. Code 19.2-187 makes the certificate admissible so long as it gets filed seven days before the trial/hearing. I guess the court will either extend Melendez-Diaz to that type of certificate or say this is just one more way to be confronted by a witness (with sufficient evidence of reliability). It is good the court is going to take another look at the problem and hopefully a practical solution.

The Lopez case is about to be submitted to the California Supreme Court -- not the U.S. Supreme Court. The court of appeals opinion in Lopez came out on 8/31/09

In August 2009, Virginia switched to a notice-and-demand procedure like Texas. E.g., http://www-personal.umich.edu/~rdfrdman/rbrev.pdf(Petitioners' Reply Brief at 1).

The statute in Briscoe looked a lot like the procedure rejected in Melendez-Diaz. COMPARE Melendez-Diaz, 129 S.Ct. 2527, 2540 ("Respondent asserts that we should find no Confrontation Clause violation in this case because petitioner had the ability to subpoena the analysts. But that power-whether pursuant to state law or the Compulsory Process Clause-is no substitute for the right of confrontation. Unlike the Confrontation Clause, those provisions are of no use to the defendant when the witness is unavailable or simply refuses to appear.") WITH Va. Code 19.2-187.1 (version prior to 8/21/09) ("The accused in any hearing or trial in which a certificate of analysis is admitted into evidence pursuant to 19.2-187 or 19.2-187.01 shall have the right to call the person performing such analysis or examination or involved in the chain of custody as a witness therein, and examine him in the same manner as if he had been called as an adverse witness. Such witness shall be summoned and appear at the cost of the Commonwealth.")

It seems reasonable to hope that the Supreme Court is considering overruling Melendez-Diaz. http://www.scotusblog.com/wp/new-lab-report-case-granted/#more-10082. The petitioner certainly seems worried about it. http://www-personal.umich.edu/~rdfrdman/rbrev.pdf at 2 ("Nor should the Court be frightened into abandoning a precedent less than six months old.")

Virginia is trying to distinguish Melendez-Diaz by claiming the Virginia statute was not a "subpoena statute". Instead, Virginia argues that the prosecution was required to produce the witness if requested by the defense.

http://www-personal.umich.edu/~rdfrdman/respondentsbrief.pdf at 9; see also http://www-personal.umich.edu/~rdfrdman/bsacUnitedStates.pdf(Brief for the United States at 11) ("Petitioners' argument rests in large measure on their incorrect assumption that, had they requested that the analysts appear for cross-examination and the analysts failed to appear, the state courts could nevertheless have admitted the certificates of analysis into evidence."). This construction would make the former Virginia statute equivalent to a notice-and-demand statute like the one Texas has.

[This message was edited by david curl on 12-20-09 at .]

[This message was edited by david curl on 12-20-09 at .]

Here is the question raised in the Briscoe petition and pending before SCOTUS (not the California SC):


"If a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the state avoid violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness?"

In other words, is it really a big deal to have the defense attorney fill out the subpoena (rather than the prosecutor) for the expert witness if he wants to cross-examaine that witness? Should be interesting.

The petitioner is arguing that the while the defense has a right to subpoena the witness, the defense is out of luck if the witness fails to appear for some reason. Virginia is arguing that, upon demand, the State has to produce the witness or else the certificate is not admissible.

Doesn't sound like Melendez-Diaz is really in any danger of being overruled. Sounds like there will be, at best, a minor adjustment, allowing the State to represent that witness will be available if demanded by D.