More Melendez-Diaz and “Notice and Demand”

by dave on August 13, 2009

in Drunk Driving

Virginia Commonwealth’s Attorneys are still on the front lines of prosecutor response to the Melendez-Diaz supreme court decision. With new procedures in place, it is likely that a new equilibrium will be found in the legal challenges in the prosecution of DUI and drug cases in Virginia.In the wake of Melendez-Diaz, prosecutors across the country are working hard to comply with the requirement to provide expert forensic witness testimony in drug cases with substance analysis requirements and drunk driving cases with breath test evidence.

Via the Wash Examiner and the Roanoke Times, under a Notice and Demand procedure, State prosecutors would have to provide any forensic documents or lab reports to the defendant at least  four weeks before a hearing or trial. The defendant and his/her defense attorney would then have two weeks to notify the prosecutor whether he wanted to question the expert in court.

The notification requirement prevents defense lawyers from filing motions on the day of court and arguing to judges that charges be dropped, when the prosecution isn’t instantly able to provide the expert witness to support the documentary evidence.

While is it is certainly possible that some criminal defense lawyers are playing a game of chicken in demanding experts when they don’t think the state is actually able to provide them, that dynamic may change quickly. When there is enough notice to get the state’s witnesses into court, it is an open question whether this will be helpful to the defense.

Certainly defense lawyers will make judgments on a case by case basis, but in situations where the defense doesn’t think they can successfully challenge the expert on the facts, having a live person there will not help their defendant. Therefore many court watchers think the controversy and panic concerning the practical implications of this ruling may be “overblown”.

But there is little doubt that in cases where the a defendant may think breath test results or forensic drug analysis are suspect, the opportunity to cross examine a witness and poke holes in the prosecution’s evidence, as opposed to a jury taking a certified document essentially as “fact”, is a big plus for defenses, and a boon to fairness in court for accused citizens.

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