Do defendants waive confrontation rights by not filing demands for opposing witnesses’ presence?
Virginia and Maryland have statutory provisions requiring defendants, pretrial, to demand the presence at trial of drug chemists and breath technicians, or to waive that right otherwise.
Yesterday, Virginia’s Court of Appeals made clear that such a requirement is met when the defense files a demand, and does not require the defense to have the witness subpoenaed. Grant v. Com., ___ Va. App. ___, Record No. 0877-08-4 (Sept. 1, 2009).
In their final footnote, the unanimous three-judge panel made a particularly important reference to Melendez-Diaz v. Massachusetts:
Because Grant preserved his confrontation right under Code § 19.2-187.1, we express no opinion on whether Code § 19.2-187.1 continues to remain a constitutionally valid notice and demand statute in light of the United States Supreme Court’s decision in Melendez-Diaz. See Melendez-Diaz, 129 S. Ct. at 2539 ("[T]he [defendant’s] ability to subpoena the analysts . . . is no substitute for the right of confrontation.").
ADDENDUM: Keep both eyes on the Briscoe v. Virginia case that is pending before the United States Supreme Court, concerning the extent to which the Sixth Amendment is protected by permitting the defense to call witnesses who are listed on a hearsay document offered into evidence by the prosecution.