Wednesday, August 13, 2008

Brief in Opposition in Briscoe

The Commonwealth has filed its Brief in Opposition in Briscoe and Cypress v. Virginia, the case in which I filed a petition challenging Virginia's statute shifting to the accused the burden of producing as a live witness the author of a certificate of forensic laboratory results. You can read it by clicking here. I expect to file a reply brief shortly.


Scott A. Surovell said...

19.2-187.1 does not specify whose burden it is to summon the witness - it says "Such witness shall be summoned and appear at the cost of the Commonwealth."

It's nonsense to suggest that a Defendant has to subpoena a state witness to help make the case against themselves.

Anonymous said...

I raised this issue in a Circuit Court in Virginia by filing a notice saying my client objected "to the introduction into evidence against him any information contained in a Certificate of Analysis, unless the individual(s) who handled and/or tested the item(s) contained in said Certificate appears in Court and testifies from the stand, subject to cross examination. This notification is being tendered pursuant to MaGruder v. Commonwealth, S. Ct. Va. (No. 070762) (decided Feb. 29, 2008) and Brooks v. Commonwealth, 49 Va. App. 155 (2006)." This was filed within 7 days of trial.

The Circuit Court verbally ruled that the Commonwealth has the burden to cause such person(s) to appear. One reason was because they have informational superiority (i.e., who is it that will need to testify?). Another reason was because the statute says "such witness shall be summoned and appear at the cost of the Commonwealth."

This prompted the Commonwealth, by the way, to suggest a need for clarity as to how many days notice the Defendant must make such a demand/objection, arguing that 7 days is insufficient for the Commonwealth to line up the appearance of these types of experts. The Court was sensitive to this, too, and did not want to "encourage" defendants to file the 'McGruder' demand/objection shortly before trial and, perhaps, pin down the Commonwealth on having to bring in an expert on short notice and have no choice but to take a voluntariy dismissal, face a possible speedy trial issue, or yield to a continuance when other witnesses may have already calendared the existing trial date. Here, however, the Judge left it for another day to see how it these issues play out in the future.

The case was continued for about 6 weeks, and was resolved in the meantime.

A.J. Dudley