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Supreme Court ruling strains lab techs

A June ruling by the U.S. Supreme Court has Virginia prosecutors and legislators scrambling to figure out a way to deal with potential repercussions of the decision.
On June 25, justices with the nation’s highest court ruled 5-4 that prosecutors will have to make forensic scientists who examine evidence used in criminal cases available for cross-examination by the defense. Prior to the ruling, results of laboratory tests were admissible as long as they were certified by the examiner.
The ruling means laboratory technicians, who already are backlogged performing tests for criminal cases, will now have to find time in their schedule to appear in court.
According to an Associated Press report, court subpoenas for lab technicians in Virginia increased from 43 in July 2008 to 925 in July 2009.
As a result of the ruling, Virginia Governor Timothy Kaine has called a special session of the Virginia General Assembly to address the matter. The session begins Wednesday.
Pulaski County Commonwealth’s Attorney Mike Fleenor said the Supreme Court ruling has “basically created a huge technicality” for the defense.
“Right after the ruling came out I started getting emails and calls” from other prosecutors across the state “asking how we’re going to address it,” Fleenor said. Since the ruling five lawyers in the Virginia Attorney General’s office have been “trying to figure out how to deal with it. It has created a lot of concern and effort across the country trying to determine how to deal with this.”
Fleenor said the whole issue boils down to the high court’s interpretation of the Sixth Amendment Confrontation Clause which insures a defendant the right to confront accusers.
He said the ruling will impact every case in which laboratory analyses are required, including cases using drug, fingerprint and DNA evidence.
Prior to the June ruling, the results of laboratory evidence were admissible merely by filing a certificate of analysis that stated the results of the examination and the certified signature of the person who conducted the tests.
“Pretty much all 50 states had laws that said the scientist didn’t have to be subpoenaed to court,” Fleenor said. “Basically, the Supreme Court has said all of those laws are unconstitutional and violate the defendant’s rights under the Sixth Amendment.”
Fleenor said the ruling could have serious impact on criminal cases and the ability of prosecutors to meet the requirement of a speedy trial. “In the vast majority of criminal cases there’s a scientific test involved,” he noted. “They’re critical because they’re the only way we can prove it was cocaine or the defendant’s fingerprints.”
The prosecutor said it is his understanding there are only five scientists who do drug analyses in the Western District of Virginia, which is the largest district in the state and includes every jurisdiction west of Danville and north to Harrisonburg.
“There are days where we have three courts going in Pulaski alone, so we could conceivably need three of the five (Western District scientists) just in Pulaski.”
He said there could be situations where he would subpoena a scientist for a specific day, then find out that scientist would be in court in another jurisdiction that day. Fleenor would then have to go back to the local court for approval of another court date. By then, the scientist could have been scheduled for another court on that date too.
He estimated his office handles more than 1,000 drug cases alone per year. His office is considered by the state to be mid-sized based on the number of criminal cases handled annually.
One of the possible means of dealing with the new requirement could be to install closed circuit broadcast equipment in the courts and labs so technicians could testify from their offices and not have to travel. Of course, that wouldn’t address the time scientists would be out of the lab and getting backed up on tests. Plus, Fleenor said it would cost “millions and millions of dollars” to install the closed circuit equipment.
Another option, which Fleenor finds most likely to be approved, would be to amend state law to require the defense to notify the prosecution of a desire to cross-examine the scientist who performed the test. Fleenor said the wording of the Supreme Court ruling seems to indicate it would not be unconstitutional to do so.
But what Fleenor finds most aggravating about the ruling is that the defense has always had the right to subpoena lab technicians if there was a question as to the accuracy of a test result or questions concerning the technician’s qualifications.
The June ruling effectively shifts the subpoena requirement to the prosecution, which doesn’t know whether the defense intends to contest the lab results. If the new ruling isn’t addressed, it is feasible technicians could be subpoenaed to court and not even be asked to testify.
Fleenor said he doesn’t see what benefit there would be to the defense to have the technician there unless the defense has a legitimate reason to believe there is a problem with the test. He said having a technician testify in person could actually make evidence seem even better to a jury than just having a certificate of analysis.
Already Fleenor has had a few cases in Pulaski where he has subpoenaed technicians “to get ahead of the game.”
The ruling took effect as soon as it was handed down by the Supreme Court.
The Virginia General Assembly has asked the Commonwealth’s Attorney Association to draft proposed legislation to address the ruling.
Regardless how the ruling is addressed, Fleenor said it is going to be costly to the taxpayer.
Regardless of the outcome of the special session, Fleenor said his office will continue to aggressively prosecute cases. “We’re not going to give up on anything or concede anything. We’ll trudge on ahead as usual and comply (with the ruling) in any way we can.
“It’s sure going to make our job a lot harder, but it’s one of those things. You get thrown a curve ball every now and then, but you just have to keep swinging.”

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Supreme Court ruling strains lab techs

A June ruling by the U.S. Supreme Court has Virginia prosecutors and legislators scrambling to figure out a way to deal with potential repercussions of the decision.
On June 25, justices with the nation’s highest court ruled 5-4 that prosecutors will have to make forensic scientists who examine evidence used in criminal cases available for cross-examination by the defense. Prior to the ruling, results of laboratory tests were admissible as long as they were certified by the examiner.
The ruling means laboratory technicians, who already are backlogged performing tests for criminal cases, will now have to find time in their schedule to appear in court.
According to an Associated Press report, court subpoenas for lab technicians in Virginia increased from 43 in July 2008 to 925 in July 2009.
As a result of the ruling, Virginia Governor Timothy Kaine has called a special session of the Virginia General Assembly to address the matter. The session begins Wednesday.
Pulaski County Commonwealth’s Attorney Mike Fleenor said the Supreme Court ruling has “basically created a huge technicality” for the defense.
“Right after the ruling came out I started getting emails and calls” from other prosecutors across the state “asking how we’re going to address it,” Fleenor said. Since the ruling five lawyers in the Virginia Attorney General’s office have been “trying to figure out how to deal with it. It has created a lot of concern and effort across the country trying to determine how to deal with this.”
Fleenor said the whole issue boils down to the high court’s interpretation of the Sixth Amendment Confrontation Clause which insures a defendant the right to confront accusers.
He said the ruling will impact every case in which laboratory analyses are required, including cases using drug, fingerprint and DNA evidence.
Prior to the June ruling, the results of laboratory evidence were admissible merely by filing a certificate of analysis that stated the results of the examination and the certified signature of the person who conducted the tests.
“Pretty much all 50 states had laws that said the scientist didn’t have to be subpoenaed to court,” Fleenor said. “Basically, the Supreme Court has said all of those laws are unconstitutional and violate the defendant’s rights under the Sixth Amendment.”
Fleenor said the ruling could have serious impact on criminal cases and the ability of prosecutors to meet the requirement of a speedy trial. “In the vast majority of criminal cases there’s a scientific test involved,” he noted. “They’re critical because they’re the only way we can prove it was cocaine or the defendant’s fingerprints.”
The prosecutor said it is his understanding there are only five scientists who do drug analyses in the Western District of Virginia, which is the largest district in the state and includes every jurisdiction west of Danville and north to Harrisonburg.
“There are days where we have three courts going in Pulaski alone, so we could conceivably need three of the five (Western District scientists) just in Pulaski.”
He said there could be situations where he would subpoena a scientist for a specific day, then find out that scientist would be in court in another jurisdiction that day. Fleenor would then have to go back to the local court for approval of another court date. By then, the scientist could have been scheduled for another court on that date too.
He estimated his office handles more than 1,000 drug cases alone per year. His office is considered by the state to be mid-sized based on the number of criminal cases handled annually.
One of the possible means of dealing with the new requirement could be to install closed circuit broadcast equipment in the courts and labs so technicians could testify from their offices and not have to travel. Of course, that wouldn’t address the time scientists would be out of the lab and getting backed up on tests. Plus, Fleenor said it would cost “millions and millions of dollars” to install the closed circuit equipment.
Another option, which Fleenor finds most likely to be approved, would be to amend state law to require the defense to notify the prosecution of a desire to cross-examine the scientist who performed the test. Fleenor said the wording of the Supreme Court ruling seems to indicate it would not be unconstitutional to do so.
But what Fleenor finds most aggravating about the ruling is that the defense has always had the right to subpoena lab technicians if there was a question as to the accuracy of a test result or questions concerning the technician’s qualifications.
The June ruling effectively shifts the subpoena requirement to the prosecution, which doesn’t know whether the defense intends to contest the lab results. If the new ruling isn’t addressed, it is feasible technicians could be subpoenaed to court and not even be asked to testify.
Fleenor said he doesn’t see what benefit there would be to the defense to have the technician there unless the defense has a legitimate reason to believe there is a problem with the test. He said having a technician testify in person could actually make evidence seem even better to a jury than just having a certificate of analysis.
Already Fleenor has had a few cases in Pulaski where he has subpoenaed technicians “to get ahead of the game.”
The ruling took effect as soon as it was handed down by the Supreme Court.
The Virginia General Assembly has asked the Commonwealth’s Attorney Association to draft proposed legislation to address the ruling.
Regardless how the ruling is addressed, Fleenor said it is going to be costly to the taxpayer.
Regardless of the outcome of the special session, Fleenor said his office will continue to aggressively prosecute cases. “We’re not going to give up on anything or concede anything. We’ll trudge on ahead as usual and comply (with the ruling) in any way we can.
“It’s sure going to make our job a lot harder, but it’s one of those things. You get thrown a curve ball every now and then, but you just have to keep swinging.”

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