Forensic test results could be admitted into evidence without the forensic analyst being present in court under a new proposed court rule.
Proposed MCR 6.202 would establish a “notice and demand” rule, under which a forensic analyst would complete a certificate stating:
- (i) that he or she is qualified by education, training, and experience to perform the analysis,
- (ii) the name and location of the laboratory where the analysis was performed,
- (iii) that performing the analysis is part of his or her regular duties, and
- (iv) that the tests were performed under industry-approved procedures or standards and the report accurately reflects the analyst’s findings and opinions regarding the results of those tests or analysis.
Test results could be admitted under the new rule with a defendant’s consent. If a defendant files a written objection, the rule provides that “the court shall determine the admissibility of the evidence by use of the appropriate rules of evidence.”
A staff comment accompanying the proposal explains that:
The proposed rule is based on favorable discussion by the United States Supreme Court in Melendez-Diaz v Massachusetts, 557 US ___; 129 S Ct 2527 (2009).
Although the Supreme Court struck down the Massachusetts procedure for admitting forensic evidence without attendance by the forensic analyst, it noted that some states have adopted “notice and demand” provisions that create a procedure by which forensic reports may be admitted into evidence if the defendant does not object to the report’s entry.
The Court is taking comments on the proposal through Nov. 1, 2011.
The Michigan Lawyer 