Va.'s remedy for Supreme Court ruling may be temporary

The U.S. Supreme Court threw criminal cases across the country into disarray last month when it ruled that defendants have a right to confront - in court - the laboratory analysts behind test results used as evidence. The 5-4 ruling was based on a clause in the Sixth Amendment giving criminal defendants the right to face the witnesses against them.

The decision doesn't differentiate between witnesses to a crime and analyses based on science, and it doesn't spell out what constitutes an analyst. For example, is every administrator of blood-alcohol tests, every lab technician analyzing blood for drugs or DNA, every doctor performing an autopsy, signing a death certificate or documenting a patient's injuries required to be in court?

Unquestionably, the court raises a troubling aspect of relying on faulty or fraudulent data without being able to refute it. If a piece of paper incriminates a defendant, that defendant should be able to challenge its conclusions; sometimes the only way to do that is to question the person who created it. As the court noted in an earlier Sixth Amendment case, "Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty."

But the ruling has resulted in a great disparity in how judges deal with DNA tests, alcohol analysis and other lab work commonly introduced as evidence. Since the ruling, some judges who routinely admitted such evidence have delayed cases and dismissed others when lab techs couldn't testify.

They're understandably confused about the potential ramifications of Melendez-Diaz v. Massachusetts. Does the high court ruling force the state to hire more lab technicians? Is testimony by teleconference a possibility,

Many states, including Virginia, already allow defense attorneys to subpoena analysts to testify about their reports. This ruling says prosecutors now have a duty, if asked, to ensure that forensic lab technicians are available to testify. Virginia has set a special legislative session for Aug. 19, the first state to try to conform state law to the court ruling.

The General Assembly will consider a bill that would allow defense lawyers a certain amount of time to declare that they want a lab technician to testify. That would curtail some of the brinkmanship, such as the defense automatically requiring a lab technician's presence on the chance that the tech couldn't come to court, and therefore the case would be dismissed.

But Virginia's plan to fix the law may confuse the issue even more. Even assuming lawmakers can figure out a way to satisfy the ruling and keep criminals from walking free when a lab tech can't be in court - no small feat - the law that legislators craft may be moot next year.

Days after the Melendez-Diaz decision, the high court announced that it would hear a similar Virginia case early next year. That case likely will clarify the Melendez-Diaz ruling and - given that the court will have a new justice - could overturn it.

The decision needs clarification. If, in the name of fair trials, the states must rewrite their laws; if labs must hire more people so analysts can spend time in court; if the general public must wait longer for lab test results, so be it.

If all that results in more accurate lab tests and the exposure of fraudulent or lazy forensic analysts, all the better.