May 06, 2017 Criminal defense – Take the necessary steps to get exculpatory evidence before the factfinder
Ermias Samson stands convicted of felonious possession with intent to sell marijuana under Virginia Code§ 18.2-248.1(a)(2), after his trial lawyer unsuccessfully sought to introduce into evidence the certificate of analysis from Virginia’s Department of Forensic Science showing that it was not Samson’s fingerprints on the bag containing the marijuana, but the fingerprints of the driver of the car in which he was the passenger. Samson v. Virginia, Record No. 0528-16-4 (Va. Ct. App. May 2, 2017) (unpublished).
What did Samson’s lawyer need to do in order to make the certificate of analysis admissible into evidence at trial? He only had to assure filing the certificate of analysis with the clerk of the Circuit Court where the case was being prosecuted, at least seven days before trial, pursuant to Virginia Code § 19.2-187. The trial court and Virginia Court of Appeals (in an unpublished affirming opinion) confirmed the same. Samson.
Never assume that this and other exculpatory evidence is automatically admissible at trial merely because it is offered into evidence by the defense. The governing evidentiary rules always apply.
As an aside, Samson’s trial judge was the Honorable Lisa Bondareff Kemler, who when in private practice successfully obtained a highly publicized 1994 acquittal by reason of insanity for her client Lorena Bobbitt, prosecuted for cutting off the penis of her then-husband John Wayne Bobbitt. I first met Judge Kemler in 1991, when I began my criminal defense career. Her ruling in Samson would have come from her reading of the law, and not from any anti-defendant bias.