Melendez-Diaz could be a big deal for Virginia drug prosecutions

That's my initial impression from reading the opinion handed down this morning by the Supreme Court of the United States in Melendez-Diaz v. Massachusetts, No. 07-591.  In Virginia, forensic evidence tested by the Department of Forensic Science is often introduced with a certificate from a forensic analyst.  For example, when a police officer seizes a quantity of what he has probable cause to believe is crack and sends it off for analysis to confirm that it is crack, DFS sends back a certified report that it is indeed crack according to their analysis.  The Commonwealth's attorney then produces the crack to the officer on the stand at trial, asks him if it is what he seized, and then introduces the forensic certificate as evidence that the stuff is crack.  Under Code § 19.2-187.1, the defendant can call the analyst to testify at trial, but that approach appears to be explicitly rejected today by the Court as constitutionally insufficient under the Sixth Amendment.

In Magruder v. Commonwealth, 275 Va. 283 (2008), the Supreme Court of Virginia determined that § 19.2-187.1 is essentially a notice-or-demand statute:  because the right to confrontation can be waived, a defendant's failure to summon the analyst to appear at trial amounts to a waiver of the right.  Although SCOTUS in Melendez-Diaz does not find notice-and-demand statutes constitutionally flawed (because they merely require the defendant to assert his Sixth Amendment right), slip op. 21-23, Melendez-Diaz does address one question the SCV did not reach in Magruder:  the order of proof.  In Magruder, the appellants argued on appeal that the statute placed the burden of producing the analyst on them.  The SCV found that burden-shifting was not part of the Confrontation Clause right but was a separate Due Process Clause question not raised at trial and therefore not preserved for appeal.  275 Va. at 301-302.  Melendez-Diaz does address that question and resolves it in favor of the criminal defendant:

[The Commonwealth] 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.  Converting the prosecution's duty under the Confrontation Clause into the defendant's privilege under state law or the Compulsory Process Clause shifts the consequences of adverse-witness no-shows from the State to the accused.  More fundamentally, the Confrontation Clause imposes a burden on the prosecution to present its witness, not on the defendant to bring those adverse witnesses into court.  Its value to the defendant is not replaced by a system in which the prosecution presents its evidence via ex parte affidavits and waits for the defendant to subpoena the affiants if he chooses.

Slip op. 18-19 (internal citations omitted).

In order to bridge the gap between Melendez-Diaz and Magruder, the Virginia statute is going to have to be enforced like a pure notice-and-demand statute:  once the Commonwealth makes known to the defendant its intent to introduce the forensic report under § 19.2-187, the defendant may demand under § 19.2-187.1 that the analyst actually appear at trial.  Then the analyst will have to testify during the Commonwealth's case in chief subject to the defendant's cross-examination, rather than during the defense.  If the analyst fails to appear as ordered, Melendez-Diaz removes all doubt that the certificate may not be admitted as evidence in his absence.

While this change may appear subtle, Melendez-Diaz appears to me to make objecting to the forensic certificate a no-brainer for defense counsel.  If they object, the Commonwealth must produce the analyst at trial.  If the analyst fails to appear, the critical forensic evidence is excluded.  (How else do you prove that what's in that plastic bag is really crack and not moisture-clumped baking soda or talc?)  There's no downside, and failure to object and require the analyst's testimony at trial is likely to produce a bar complaint from your client and provide him a ground for an ineffective assistance of counsel claim in a subsequent habeas petition.  [I want to append to this statement a clarification that I don't believe either the bar complaint or the habeas petition would necessarily be justified, and that the case were it is justified would be rare, but these drug defendants often get a lot of down time in prison coupled with a lot of resentment toward trial counsel.]

In any event, I think most defense attorneys would be foolish not to use the opportunity to object and the prospect of yanking DFS analysts away from their mass spectrometers and trucking them all over the Commonwealth to strengthen defendants' bargaining position when negotiating pleas in drug cases.  "Do you really want to take this to trial?  I'm going to object to the DFS report, so you're going to have to bring in the analyst to testify."

At least that's my initial impression.