As promised, this report deals exclusively with the results of the special session on Wednesday, August, 19, 2009, to deal with the United States Supreme Court in Melendez-Diaz vs. Massachusetts.  

The bill that was presented to the legislature had two major components.  The first is that the bill now conforms Virginia’s law Notice and Demand statute more closely to the laws which were specifically approved in Melendez-Diaz vs. Massachusetts.

Under the bill, a Commonwealth’s Attorney will now send a copy of a certificate of analysis to the defense counsel or defendant at least 28 days prior to trial.  This notice will apprise the defendant that he has 14 days to object to the introduction of the certificate and effectively demand that the Commonwealth produce at trial the person who conducted the analysis.  If the defendant does not object, his or her right to confront this witness at trial is waived and the certificate is admissible so long as it meets all other statutory requirements.

The second major component is the addition of a tolling provision to Virginia’s speedy trial requirement.  Compared to other states’ laws and to the Constitutional requirement of speedy trial, Virginia law requires that the accused be tried in a very short time frame – 5 months for an incarcerated person and 9 months for a person out on bond. 

This bill states that the Commonwealth can obtain a continuance because a witness is necessary for the admission of a certificate of analysis is unavailable and this continuance is not counted in the time necessary to hold a trial.

There is a cap on the length of any continuances granted under this provision.  The cap is 90 days in total for a defendant who is incarcerated and 180 days for a defendant who is out on bond.

The theory behind this is to provide the Commonwealth with notice of when these witnesses are demanded to be present to testify so that we don’t unnecessarily subpoena these witnesses to every case.  Secondly, it recognizes the current shortage of such witnesses and allows more time for trial under the speedy trial act.

While I supported this bill, I must tell you that I supported it reluctantly and I discussed it thoroughly with many members of the legislature explaining the shortfalls of this quick fix.  The problem with this bill is that Commonwealth’s Attorney’s are going to have a very difficult time prosecuting cases that require a certificate of analysis because of the unavailability of the scientific experts from the State.  So at the end of the day, what happens is these cases will get continued and pushed further and further off and, under the tolling provision, ultimately many will be thrown out by the courts.  That is a great concern to me and I believe there were better ways to fix this.  However, there was no consensus for my use of interactive video. 

The reason there was concern about my proposal for interactive video is there is no law on that that could be currently found.  In other words, there is no precedent set by the court which says we can use interactive video.  However, if you analyze the use of video for cross-examination, you must come to the conclusion that it allows a defendant to be confronted by his accuser, albeit on a television screen rather than directly face-to-face in the courtroom.

What I would have preferred to have seen is the addition of the use of the interactive video in conjunction with this bill and I believe it would have been a much more comprehensive bill to resolve these issues.

I plan on submitting this for the 2010 legislative session which is when we plan to deal with the Melendez-Diaz vs. Massachusetts decision in a more comprehensive matter.

I don’t mean to suggest that the bill will not do what we needed to do.  What I suggest is that the bill was not comprehensive enough.  It did help us deal with the problems caused by the Melendez-Diaz vs. Massachusetts decision.  However, there are still holes that a good defense attorney could use to the frustration of the Commonwealth in prosecuting the cases that require certificates of analysis.

Ultimately, however, Commonwealth’s Attorney’s can request what is called a nolle  prosequi.  What that simply means is the Commonwealth can choose to not prosecute.  The judge has to agree and order the nolle prosequi.  However, that too can buy the Commonwealth some time if the court believes that the nolle prosequi is for good cause.  In many cases I believe courts would believe this would be a beneficial use.  The down side of that is, if you have a criminal defendant that is a flight risk, he could not be held in continuous custody and would have to be re-served and the trial started all over again.

As you can see, it is a very complicated issue.  While I believe that this bill addressed some of the issues, I will tell you unequivocally there is a lot more work to do on this in the regular session in 2010.

I tried to explain this as simply as possibly.  But being that it is a complicated issue, if you have any concerns or questions, please feel free to call me or email me.  I can be reached at my senate office, 804-698-7528, P. O. Box 396, Richmond, Virginia 23218 or my district office, 804-493-8892, P. O. Box 1146, Montross, Virginia 22520, or by email at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .  As always, I appreciate the opportunity to serve you in the State Senate.