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Special Session Addresses Court Decision, For Now

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Virginia's General Assembly has unanimously passed legislation Wednesday responding to a recent U.S. Supreme Court ruling. The Supreme Court ruled in June that defense attorneys have the right to cross-examine forensic examiners in court to dispute lab findings.

The ruling jeopardized some drug and drunken driving cases in Virginia and threatens to worsen the state crime lab's backlog of forensic cases - since examiners would be spending a lot more time in court.

In a special session to respond to the ruling, the Virginia legislature created a streamlined process for defense attorneys to confront forensic examiners. "We do not believe this bill will take care of all the problems coming out of the Melendez-Diaz case," House Majority Leader Morgan Griffith, R-Salem, told a legislative committee. "We're trying to get to the big ones."

The legislation would require prosecutors to submit lab reports that they intend to use as evidence four weeks before a hearing or trial. The defendant then would have two weeks to decide whether to challenge the report. If he or she did, it would be the government's responsibility to bring the forensic examiner who prepared the report to court.

Similar "notice and demand" statutes in three other states are constitutional, the Supreme Court ruled. The legislation essentially shifts the burden of calling the witness from the defendant to the government as required by the confrontation clause of the Constitution.

It also establishes a more orderly procedure in an attempt to remedy the confusion that has existed in the wake of the Melendez-Diaz ruling. The Virginia Department of Forensic Science says the number of subpoenas for examiners to appear in court in drug cases alone jumped from 43 in July 2008 to 925 last month.

The most contentious question was whether examiners could be forced to testify in court that Breathalyzers were properly calibrated. The assembly got around that by changing the law so prosecutors don't have to prove the machines are calibrated at all - though they will still be tested.

Sabri Ben-Achour reports...

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