Kaine calls special session on court system

By Andy Jenks - bio | email
Posted by Terry Alexander - email

RICHMOND, VA (WWBT) - A special session for Virginia lawmakers to deal with a U.S. Supreme Court ruling that could change the face of criminal prosecutions. The move comes a month after a Supreme Court ruling that stands to change the way testimony is given in drug and DUI cases.

In the past, prosecutors would often rely on a scientist's report to prove their cases. But then the Supreme Court said they would have to make scientists available "in person" for testimony. So lawmakers are being called back in to town, to figure out what to do next.

Under pressure from state prosecutors, Governor Kaine is calling a special session of the General Assembly for August 19. One day, one goal: how to deal with the Supreme Court ruling.

"I was relieved, and I think most prosecutors throughout the state are relieved," said Richmond's Commonwealth Attorney Michael Herring.

Some prosecutors believe that getting scientists to testify - as the high court ruled - would make it tougher to earn convictions if key people are not available.

"You consider all the jurisdictions around the state that have cases involving forensic evidence simultaneously, if they all requested the chemist to appear, the system would grind to a halt," Herring said.

They hope to return to a system that relies on forensic reports instead of testimony. But defense attorneys would argue that's not always effective, when it comes to finding the truth.

"We've been using shortcuts. And so what states have been doing is passing laws that permit the introduction of reports instead of the testimony of witnesses. It's become prosecution by paper," said Attorney Steven Benjamin of Benjamin and DesPortes.

What is effective - they say - is the opportunity to cross-examine a scientist, in the rare but possible case of a mistake, or wrongdoing.

"You better bet, we're going to insist on a full and complete cross examination of scientists, just like we would of a lay witness, or a police officer or anyone else who might come in and deviate in any sense from the truth," Benjamin said.

So lawmakers will be called back to Richmond, to figure out how to make the system work. And how to compensate the expert witnesses for their time.

Opponents of the session claim one day will cost taxpayers about $30,000. Even after all this, the Supreme Court will make another ruling on this issue in early 2010. So it's possible that whatever the General Assembly decides in August will have to be re-visited in about six months.

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