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Score One for the Sixth Amendment

| Mar 25, 2020 | Firm News |

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right [among other things] [t]o be confronted with the witnesses against him.”

Once upon a time in Virginia, you could go to jail based on the words and numbers written on a piece of paper. A cop submits a substances he presumes to be marijuana to the forensics lab, then a lab technician runs a few screening tests on this substance. The tech then places the findings in a “certificate of analysis.” This certificate could be presented as proof positive that the substance was marijuana. This faulty system does not exist any longer.

The Supreme Court of the United States, in an opinion written by Justice Scalia, states, in no uncertain terms, that the mere presentation of the piece of paper is a violation of an accused’s Sixth Amendment right to confront witnesses against him. This ruling was founded upon the 2004 Crawford decision and restores an accused’s right to be confronted with the witnesses against him. After the recent exposure by the National Academy of Sciences that forensic scientists may face pressure to get results, and in the course of getting the result, sacrifice proper testing methods, allowing the cross examination of lab techs will weed out fraudulent and incompetent analysts.

In light of this ruling, some judges remove the possibility of jail time for a pot possession charge. With no jail time at stake, there is no requirement to appoint to you an attorney. Does this mean you do not have to hire a lawyer for pot possession any longer? Of course, I will say “NO!” Why? Unless you assert your Sixth Amendment right to examine the lab tech, you will be convicted. This is still a criminal conviction that will appear on your record, for the rest of your life. You cannot seal it, expunge it, hide it, or run from it. This conviction will haunt you until you die. What may appear to be the easy, cheap way out can ultimately be one of the most expensive decisions you make.

The full impact of this decision isn’t yet known or how far the principles articulated by Scalia can reach. It is clear that an accused person cannot be convicted by a piece of paper any longer. As Justice Kennedy wrote, “The defense bar today gains the formidable power to require the government to transport the analyst to the courtroom at the time of trial.” Yes…yes the defense bar did. And it’s about time.