Sen. Ken Cuccinelli

By State Sen. Ken Cuccinelli

The Melendez-Diaz vs. Massachusetts case was decided by the U.S. Supreme Court on June 25. The case addressed the right of defendants to confront witnesses against them under the confrontation clause of the 6th Amendment to the U.S. Constitution, which reads in relevant part: “In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.”

In Virginia, the Melendez case threatens to allow drunk drivers, drug offenders and sex offenders who don’t register with Virginia’s sex offender registry to either escape conviction or have their cases pled down to lesser offenses. This danger exists because of the sudden increase in the demand for lab technicians and sex offender records custodians to appear in court, as this is the only solution under Virginia’s current law to the Melendez problem. We need to change Virginia’s law immediately to address this problem, and the governor should be commended for calling the legislature into special session.

In the Melendez case, the defendant objected to the prosecution using a ‘certificate of analysis’ to prove the substance the defendant had in his possession when he was arrested was cocaine. A certificate of analysis is just a piece of paper that, as its name suggests, contains the results of whatever tests the lab technician ran. This is a common method of efficiently presenting evidence across the country, including in Virginia.

The defendant argued that the lab technician who had tested the substance was required to testify in person because, under the 6th Amendment, the defendant had the right to confront witnesses against him. I’m simplifying of course, but the defendant won because the Supreme Court said the information contained in the certificate of analysis was related to facts specific to the defendant’s case, and the tests run were for the purpose of providing specific proof against him. Thus, the defendant had the right to confront the witness — the lab technician — who was actually providing that proof. After all, you can’t cross-examine a piece of paper.

To address the Melendez problem, we need to fix Virginia’s law and — if possible — add lab technicians to address the backlog in lab work caused by the Melendez ruling. This will allow us to get the workload of our prosecutors and lab technicians back to where it was before the Melendez ruling, and it is the best course to keep Virginians safe by doing all we can to convict drunk drivers, drug offenders and those that fail to register under our sex offender laws.

After reading and analyzing Melendez and talking to prosecutors from across Virginia, on July 10 I called for a special session because the faster we can address the Melendez problem, the fewer criminals will walk free or get off easy. Unfortunately, I was immediately attacked by some who didn’t take the time or care that I did in analyzing this problem. While those attacks persisted, I set about making the case for a special session to fix the Melendez problem.

After almost two weeks of consideration and attempts to find alternative solutions, the governor has agreed with me that a special session is the best course to protect the safety of Virginians. I commend the governor for his thoughtful decision, and I look forward to working with him to address this serious threat to public safety.

Public safety is government’s first priority and I am committed to ensuring safe communities in Virginia. Ultimately, keeping Virginians safe is the real reason we need the coming special session!

Sen. Ken Cuccinelli, R, Fairfax, is a candidate for Attorney General of Virginia.