Evidence, testimonial; criminal defendant right to demand testimony of preparer of certificate, etc. (HB5003)

Introduced By

Del. Todd Gilbert (R-Woodstock)


Passed Committee
Passed House
Passed Senate
Signed by Governor
Became Law


Testimonial evidence; admissibility.  Provides a notice and demand procedure whereby a criminal defendant receives notice in the certificate of analysis of laboratory or breath tests of his right to demand the testimony of the person who signed the certificate.  A defendant waives his right to object to the introduction of the certificate upon the basis of the absence of the person if he does not object in writing to the attorney for the Commonwealth within 21 days of receipt of notice or at least 10 days before trial, whichever is earlier.  There is a similar procedure for affidavits for failure to register as a sex offender; however, in failure to register cases the attorney for the Commonwealth will provide the notice to the defendant.  If the defendant objects, the attorney for the Commonwealth must summon the person who performed the analysis or examination or executed the affidavit.  The notice and demand provision does not apply to preliminary hearings.

Information on breath-test machine accuracy is removed from the certificate of analysis and will be maintained as a record of the Department of Forensic Science.

The bill also allows persons who prepared such certificates of analysis and affidavits to testify via two-way electronic video and audio transmission upon motion of the attorney for the Commonwealth in the interest of substantial justice, for good cause shown. Note: There is some doubt currently as to whether such an appearance satisfies the requirements of the Confrontation Clause.

The speedy trial statute is tolled for continuances granted if such a witness is unavailable for trial.

This bill is in response to the United States Supreme Court decision in Melendez-Diaz v. Massachusetts, 557 U.S. (June 25, 2009).

The bill has an emergency clause. Read the Bill »


08/19/2009: Merged into HB5007


08/07/2009Prefiled and ordered printed with emergency clause; offered 08/19/09 090981516
08/07/2009Referred to Committee for Courts of Justice
08/19/2009Incorporated by Courts of Justice (HB5007-Griffith)