5.4 Obtaining and Reviewing Documents

• Library: Defense of Serious Traffic Cases in Virginia (Virginia CLE) (2020 Ed.)

5.4 OBTAINING AND REVIEWING DOCUMENTS

5.401 In General. After obtaining the documents that are relevant to the upcoming proceeding, counsel should review each of them carefully for errors, blanks, or facial inconsistencies. When a procedure is in place for filing a particular type of document with the court, technical defenses may arise because of late or improper filing or handling of these items, and counsel may be able to take advantage of these imperfections at trial. Mistakes are sometimes made on the face of these documents. For instance, the date stamp that is placed on the document by the clerk's office should always be checked. In borderline cases, even a minor mistake can help in successfully negotiating a better outcome. Major mistakes on the warrant or certificates can sometimes lead to a dismissal. For the purposes of argument, there is no such thing as substantial compliance with a mandatory provision of statutory law. ⁵⁵

5.402 Virginia Uniform Summons or Warrant.⁵⁶ Counsel should carefully check the portion of the summons or warrant that identifies

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the particular statute or statutes the defendant is charged with violating. The statutes should then be carefully reviewed, having in mind the specific facts of the case. If the warrant is defective, the court is permitted to amend it on the motion of either party or sua sponte. ⁵⁷ If the warrant is so seriously flawed that it cannot be amended, the judge has the power to issue a new bench warrant that charges the correct offense and have the defendant rearrested, which causes the whole arrest and arraignment process to be repeated; the accused is entitled to a continuance as a matter of right if the trial has already begun on the defective warrant. ⁵⁸ If the trial has already begun, there are definitely double jeopardy concerns that should be raised and preserved by the defense. If the evidence does not conform to the charge, a motion to strike the evidence at the end of the Commonwealth's case would also be in order.

When a warrant is amended or a new warrant is issued, the costs that have already accrued under the former, incorrect warrant are taxed against the defendant if he is ultimately convicted as a part of the costs arising under the new or amended warrant. ⁵⁹

5.403 Certificate of Blood Alcohol Analysis.

A. Certificates of Analysis and the Confrontation Clause. The issue of whether evidence affidavits giving the results of forensic analysis are testimonial—making their affiants witnesses subject to the defendant's Sixth Amendment right to confrontation—has been hotly contested. The United States Supreme Court delivered an opinion on the issue in Melendez-Diaz v. Massachusetts. ⁶⁰ In Melendez-Diaz, the trial court overruled both the defendant's objection to the admission of the certificate of analysis and his contention that the Confrontation Clause required the analysts to testify in person. He had contended that the certificates of analysis served the same purpose as a witness on direct examination and were akin to live, in-court testimony. ⁶¹ The Supreme Court ruled that this issue was merely an

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application of its holding in Crawford v. Washington, ⁶² and that "[t]he Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits, and the admission of such evidence against Melendez-Diaz was error." ⁶³ Melendez-Diaz was entitled to confront the analysts at trial.

Melendez-Diaz may have defined the outer limit of the Supreme Court's Sixth Amendment jurisprudence. Consider these later cases:

• Michigan v. Bryant. ⁶⁴ In this case, the Court held that the Confrontation Clause does not bar the admission of the statement of an unavailable witness if it falls within a traditional hearsay exception or if it otherwise reaches a level of particular trustworthiness. ⁶⁵ The witness was the victim of a shooting who identified his attacker to the police as he lay dying. The Court said that this exception would allow the introduction of such a statement to the police when they were responding to an ongoing emergency. The Court found that if the purpose of the statement was not to create a record for trial, it would fall outside of the scope of the Confrontation Clause.

• Bullcoming v. New Mexico. ⁶⁶ At the trial of this DUI case, the prosecution called an analyst who was not the person who actually performed the lab test. The Supreme Court held that this violated the defendant's rights under the Confrontation Clause because the lab report was clearly testimonial in nature. The substituted witness could only testify generally about the lab's normal procedures but could not testify about any observations of possible inconsistencies that may have occurred during the test. Thus it was not possible for the

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defense to develop what could have been exculpatory evidence.

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Williams v. Illinois. The prior decisions of the U.S. Supreme Court do not clearly pave the way for its 2012 decision in Williams v. Illinois. 67 In this case, the prosecution called an expert witness from the state's forensic division to testify that a DNA sample taken from a rape victim matched one from the defendant generated earlier by an outside lab. The technician who had actually performed the testing at the outside lab was not called as a witness, and the lab report was not admitted into evidence. In a plurality decision, the Supreme Court agreed that the defendant's Confrontation Clause rights had not been violated, but a strong dissent was also written in the case. Justice Alito, writing for the plurality, upheld the defendant's conviction. He found that, under both Illinois and federal rules of evidence, an expert is permitted to testify as to her opinion based on the underlying facts even though she has no first-hand knowledge of these facts. Although the outside lab report could not be admitted into evidence for its truth without the lab technician's testimony, he noted that the Court's decision in Crawford v. Washington68 had specifically stated that the Confrontation Clause does not bar the use of testimonial statements for purposes other than to prove the truth of the matter asserted. 69 The Court held that, here, the Sixth Amendment protection was not triggered because the expert's answers assumed the facts in the report to be true and represented her opinion based upon that assumption. The Court also emphasized that, because the lab report was not prepared at a time when the defendant was a suspect of any crime, this contributed to its neutrality when compared with lab reports that are prepared specifically to be used in evidence against a known defendant. The dissent disagreed, stating that there was no principled

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way to distinguish the facts of this case from those in Bullcoming70 or Melendez-Diaz. 71 Since the match between the DNA samples was a vital piece of evidence in the conviction of this defendant, the dissent insisted that the technician who prepared the report had to be present at trial before that evidence could come in. It is noteworthy that the defendant was tried in a bench trial, and the plurality opinion concedes that, had it been a jury trial, "[a]bsent an evaluation of the risk of juror confusion and careful jury instructions, the testimony could not have gone to the jury." 72

1. Business Versus Non-Business Records. The Court in Melendez-Diaz rejected the argument that the analysts' affidavits were business records and therefore admissible without confrontation, holding that even if the affidavits were considered business records, their authors would be subject to confrontation. A document kept in the regular course of business can be admitted at trial despite its hearsay status, ⁷³ but "that is not the case if the regularly conducted business activity is the production of evidence for use at trial." ⁷⁴ This was made clear in Palmer v. Hoffman, ⁷⁵ which held that accident reports provided by a railroad company employee did not qualify as business records despite being kept in the regular course of operations, because they were "calculated for use essentially in the court, not in the business." ⁷⁶

2. Fallibility of Scientific Test Results.

a. Right to Confrontation. There is not a category of witness that is both helpful to the prosecution and immune to confrontation. In Melendez-Diaz, the Court rejected the argument that it was unreasonable to believe that a laboratory professional would feel differently about the results of a scientific test after looking at a defendant. To accept such an

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argument would be a return to the decision in Ohio v. Roberts⁷⁷ (since overruled by Crawford v. Washington⁷⁸ ), which held that "evidence with 'particularized guarantees of trustworthiness' was admissible notwithstanding the Confrontation Clause." ⁷⁹ While there may be other, sometimes better ways to challenge or verify forensic test results, the only one guaranteed by the Constitution is confrontation of the witness.

b. Flaws in Laboratory Analysis. The Court also noted that "'[t]he majority of [laboratories producing forensic evidence] are administered by law enforcement agencies, such as police departments, where the laboratory administrator reports to the head of the agency.'" ⁸⁰ Thus, forensic analysts may feel pressure or have incentive to alter evidence in a manner favorable to the prosecution. "Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well." ⁸¹ One study of cases involving overturned criminal convictions found that invalid forensic testimony contributed to convictions in 60 percent of the cases. ⁸²

3. Notice and Demand. Notice-and-demand statutes require the prosecution to notify the defendant when intending to use an analyst's report as evidence at trial. The defendant is then given a period of time in which he or she may object to the admission of evidence...