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36 New Eng. J. on Crim. & Civ. Confinement 289 (2010)
Meledendez-Diaz and Briscoe: Return of Constitutional Guarantees Worth the Cost to the System

handle is hein.journals/nejccc36 and id is 293 raw text is: Melendez-Diaz and Briscoe: Return of Constitutional Guarantees Worth the Cost to the System Joseph King, Chris Leibig, and Kristen D. Clardy* On July 22, 2009, Virginia Governor Tim Kaine called for emergency legislation to amend Virginia's laws governing the introduction of certificates of analysis into evidence in criminal cases.1 Kaine requested revision of Virginia's laws as they appeared unconstitutional in light of U.S. Supreme Court decision Melendez-Diaz v. Massachusetts.2 Decided in June 2009, Melendez-Diaz forbade trial by affidavit by holding that scientific reports, if demanded by the defendant, must be introduced into evidence through live testimony.3 Justice Scalia, writing for the majority, stated the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court.4 Virginia's laws, in opposition to Scalia's remarks, placed the burden on the defendant to call the analyst in the defendant's case in chief in order to challenge the analyst's conclusions.5 Bringing increased * Joseph King, counsel for Briscoe, is a partner at King & Campbell, PlIc. Chris Leibig is a partner at Zwerling, Leibig & Mosely, PlIc. Kristen D. Clardy is a solo practitioner. All three practice criminal defense law and are based in Alexandria, Virginia. 1. Tom Jackman & Rosalind S. Helderman, Kaine Calls Session to Amend Laws on Trial Testimony, WASH. POST, July 23, 2009, at B 1. 2. Id. 3. Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 (2009). 4. Id. at 2540. 5. VA. CODE ANN. § 19.2-187, et seq. (West 2008), amended by 2009 Va. Acts 1. Enacted in 1976, Former Virginia Code § 19.2-187 stated that a certificate of analysis ... duly attested ... shall be admissible in evidence as evidence of the facts therein stated. As a further condition of admissibility, the statute required certificates be filed with the clerk of court seven days prior to a hearing or trial, and, if requested by defense counsel at least ten days before trial, that a copy be delivered to defense counsel seven days before the hearing or trial. Where the aforementioned code section provided no means for confrontation of the analyst, VA. CODE ANN. section 19.2-187.1 provided a method for confronting analysts in the defendant's own case: The accused in any hearing or trial in which a certificate of

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