Thursday, August 20, 2009
Assembly passes law on forensic evidence testimony
The effort to make scientists available for court was in response to a Supreme Court ruling.
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roanoke.com/politics
RICHMOND -- The General Assembly moved quickly Wednesday to pass legislation establishing new procedures for criminal cases involving forensic evidence, responding to a recent U.S. Supreme Court ruling that has created logistical headaches for Virginia's judicial system.
In a one-day special session, lawmakers passed two identical bills (House Bill 5007 and Senate Bill 5003) designed to head off potential logjams stemming from a June ruling by the Supreme Court involving the use of forensic evidence in criminal trials. The court ruled in Melendez-Diaz v. Massachusetts that laboratory evidence is testimonial and that scientists who conduct the testing must be available for cross-examination by the defense.
Virginia lawmakers and prosecutors had raised concerns that the ruling could lead to delays and widespread dismissals of drunken driving and drug cases because of difficulty scheduling scientists to testify. The state Department of Forensic Science reported a dramatic increase in the number of subpoenas issued in July, the first full month after the court's ruling. That has affected the department's ability to handle its own backlog of cases.
The bills passed Wednesday would require prosecutors to provide notice of their intent to introduce scientific evidence 28 days before a case goes to trial. A defendant would have 14 days to decide whether to require the scientist to testify. The legislation also allows prosecutors to get a continuance of up to 90 days for a defendant in jail or 180 days for a defendant free on bond without affecting speedy trial requirements.
The Supreme Court indicated in the Melendez-Diaz case that similar "notice and demand" statutes in three other states are constitutional.
"Today's legislative action offers some relief to Virginia's forensic analysts, who may need additional time to schedule appearances for court testimony," said Gov. Tim Kaine, who called the special session. "The legislation approved today also streamlines the procedure for requesting live testimony for prosecutors and members of the law enforcement community while appropriately preserving the intent of the court decision."
Lawmakers said they still will have technical issues to address in January, when the General Assembly holds its regular winter session. They also said the state will need to hire more forensic scientists, despite a budget shortfall that will force cuts to other programs.
"We're going to have to look at how many new scientists we're going to need and how we're going to pay for them," said House Majority Leader Morgan Griffith, R-Salem, a co-sponsor of the legislation.
The bill was shaped by lawmakers and a working group that included lawyers from Kaine's office and the attorney general's office, with input from prosecutors and defense lawyers.
Griffith told members of the House Courts of Justice Committee that the legislation won't solve all of the problems associated with the Supreme Court ruling, But, he said, "We're trying to get to the big ones."
