General Assembly to convene tomorrow with goal of bringing state law into compliance with U.S. Supreme Court decision on defendant’s right to confront witnesses.

Richmond, VA – The ACLU of Virginia has asked state legislators to fully embrace a new U.S. Supreme Court ruling that affirms the right of defendants’ to confront experts who present forensic evidence against them.
HB 5007 and SB 5003 are attempts to bring Virginia Code into compliance with the recent U.S. Supreme Court ruling in Melendez-Diaz v. Massachusetts by adopting a “notice and demand” scheme in which prosecutors must notify defense attorneys of their intent to submit a written forensics report as evidence, but only produce the author of the report in court if the defense requests it.
The ACLU of Virginia is asking legislators to amend the proposed legislation to require such witnesses to appear in court unless the defense expressly waives the right to examine the witness in court.
“The right to confront witnesses against you is not some nebulous entitlement implied or hinted at by the Constitution,” said ACLU of Virginia Executive Director Kent Willis. “It is explicitly stated in the Sixth Amendment, and it is a shame that we have allowed thousands of cases to proceed in which the experts, who often provided the most importance evidence against defendants, were not required to appear in court.”
“The constitutional right to confront witnesses, like any constitutional right, should never be relinquished by default,” added Willis. “Can you imagine the First Amendment being interpreted to mean that you could lose the right to free speech unless you respond to a notice from a government official indicating you want to keep it?”
The ACLU is also concerned about provisions in HB 5007 and SB 5003 that allow trials to be delayed when the defense requests that a forensic expert appear in court.
“The constitution guarantees both a speedy trial and the right to confront witnesses,” added Willis. “Criminal defendants should not be forced to choose one or the other.”
A third concern for the ACLU is that the proposed legislation does not explicitly state that the cost for producing such witnesses will be borne by the state.

Contact: Kent Willis, (office) 804-644-8022

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