COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Frank and Haley 

Argued at Chesapeake, Virginia 

KELLUP LAMONTE BROOKS 

 OPINION BY 

v. Record No. 2195-05-1 JUDGE LARRY G. ELDER 

 DECEMBER 19, 2006 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

John C. Morrison, Jr., Judge 

 Charles E. Jenkins, II, for appellant. 

 Leah A. Darron, Senior Assistant Attorney General (Robert F. 

McDonnell, Attorney General; Karri B. Atwood, Assistant Attorney 

General, on brief), for appellee. 

Kellup Lamonte Brooks (appellant) appeals from his jury trial conviction for possession 

of cocaine with intent to distribute. On appeal, he contends the trial court erred in admitting the 

certificates of analysis establishing that some of the substances seized at the time of his arrest on 

an unrelated offense were cocaine. He argues the certificates contained hearsay considered 

testimonial under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 

(2004), and, thus, that admitting them without having the forensic analyst present to testify, 

although permitted by Code § 19.2-187 as an exception to state hearsay rules, violated his 

Confrontation Clause rights. Assuming without deciding the certificates contained information 

considered testimonial under Crawford, we hold the procedure in Code §§ 19.2-187 and 
- 2 -

19.2-187.1 adequately protects a defendant’s Confrontation Clause rights.1

 Thus, we affirm 

appellant’s conviction. 

I. 

BACKGROUND 

 On June 16, 2004, narcotics investigators arrested appellant in a motel room in which 

they found several different quantities of suspected cocaine, cash, and paraphernalia associated 

with drug distribution. Appellant was charged, inter alia, with possession of cocaine with intent 

to distribute. Appellant was indicted for that offense on September 1, 2004. 

 On September 21, 2004, more than seven days prior to trial, as required by the hearsay 

exception provision of Code § 19.2-187, the Commonwealth filed certificates of analysis 

confirming that several of the items seized were cocaine or contained cocaine or heroin residue. 

By letter of October 22, 2004, in response to appellant’s motion for discovery and with a copy of 

the letter to the court, the Commonwealth provided appellant’s counsel with copies of those 

certificates of analysis, expressly indicating they were being “provided in accordance with the 

Code of Virginia § 19.2-187.” 

 At trial on August 24, 2005, appellant moved to exclude the certificates of laboratory 

analysis of the drugs,2

 claiming that the Commonwealth’s failure to call the forensic scientist 

who tested the substances denied him his constitutional right to confrontation under Crawford. 

The Commonwealth responded that Code § 19.2-187.1 provides a mechanism giving a defendant 

 1

 We do not consider the constitutionality of the order of proof allowed by Code 

§ 19.2-187.1 because that issue is not properly before us in this appeal. See infra text 

accompanying note 6. 

2

 Appellant also moved to exclude a certificate of DNA analysis involving a firearm, but 

the admission of that certificate is not at issue in this appeal. Appellant did not object to 

admission of a certificate of analysis covering suspected drugs found in the possession of another 

person in the motel room at the time of appellant’s arrest. 
- 3 -

“the right to call the person performing such analysis . . . at the cost of the Commonwealth” but 

that appellant had not notified the Commonwealth he had an objection to admitting the 

certificates in the absence of the scientist. The Commonwealth averred that “if defense counsel 

had told me specifically he had any objection . . . , I would have ensured [the analyst’s] presence 

here today; and if [the analyst was] unable to be here, . . . I would have requested a continuance.” 

The Commonwealth argued that the provision of Code § 19.2-187.1 allowing a defendant to 

assert his right of confrontation in a particular manner prevented it from running afoul of 

Crawford. Appellant argued “the fact that [he] could have subpoenaed somebody because the 

code allows it doesn’t really answer the math because that’s shifting the burden of proof to the 

defendant.” 

 The court denied the motion on two grounds. It reasoned first that Code § 19.2-187.1 

provides for a right to call a person who conducted an examination 

to have them present, if the defense so desires. It does not shift the 

burden of proof. What it is, is a procedural provision that simply 

requires that a party do something in a timely manner. 

There is no violation of the Confrontation Clause to require 

a defendant to do something or raise an issue [or] objection in 

advance of trial because you are balancing the defendant’s right to 

challenge evidence against the right of the public, in effect, to have 

an efficiently run court system that’s not bogged down by late 

requests and objections to evidence that, for example, leaves a jury 

sitting in a jury room for 35 minutes or more past lunch because 

we are resolving something that really should have been resolved 

in advance of trial, if there was any real meat to the objection . . . . 

. . . All you have to do is say, you know, I want these 

people present for this trial, and the Commonwealth would have 

been forced to [have them present]. And as [the prosecutor] has 

said, if [you had made such a request in this case], he would have 

been forced to request a continuance. . . . [T]hen if the Court had 

granted that request for a continuance, the question of whether or 

not a speedy trial violation would occur and your objection [could 

have been addressed]. All those procedural rights and everything 

would be protected. The confrontation clause [rights] would be 

protected. . . . 
- 4 -

The court also concluded that Crawford was inapplicable because it did not cover 

non-testimonial hearsay and the court found that reports of scientific examination such as the 

certificates of drug analysis were non-testimonial. 

 At trial, the certificates of analysis were admitted as part of the Commonwealth’s 

evidence. The jury convicted appellant for possession of cocaine with intent to distribute, and he 

noted this appeal. 

II. 

ANALYSIS 

The Confrontation Clause of the United States Constitution provides that, “In all criminal 

prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against 

him.” U.S. Const. amend. VI. This “procedural guarantee” also “applies to state prosecutions.” 

Michels v. Commonwealth, 47 Va. App. 461, 466, 624 S.E.2d 675, 678 (2006). In its 2004 

decision in Crawford, the United States Supreme Court clarified the test for “determining 

whether the admission of hearsay,” an out-of-court statement offered to prove the truth of the 

matter asserted, “violates the accused’s right[s] under the Confrontation Clause.” Horton v. 

Allen, 370 F.3d 75, 83 (1st Cir. 2004). “[W]hen the declarant appears for cross-examination at 

trial,” stated the Court, “the Confrontation Clause places no constraints at all on the use of his 

prior . . . statements.” Crawford, 541 U.S. at 59 n.9, 124 S. Ct. at 1369 n.9, 158 L. Ed. 2d at 197 

n.9. However, if the declarant does not appear for trial and the statement is “testimonial” in 

nature, “the Sixth Amendment demands what the common law required: [proof of the] 

unavailability [of the declarant] and a prior opportunity for cross-examination.” Id. at 68, 124 

S. Ct. at 1374, 158 L. Ed. 2d at 203. 

Appellant avers the trial court erred in admitting the certificates of analysis establishing 

that the substances seized were cocaine, contending the certificates contained hearsay considered 
- 5 -

testimonial under Crawford and, thus, that admitting them without having the forensic analyst 

present to testify, although permitted by Code § 19.2-187 as an exception to state hearsay rules, 

violated his Confrontation Clause rights. Assuming without deciding the certificates contained 

information considered testimonial under Crawford, we hold the procedure in Code §§ 19.2-187 

and 19.2-187.1 adequately protects a defendant’s Confrontation Clause rights. 

 The applicable version of Code § 19.2-187 provides in relevant part as follows: 

In any hearing or trial of any criminal offense . . . , a certificate of 

analysis of a person performing an analysis or examination, 

performed [in any of several specified laboratories] when such 

certificate is duly attested by such person, shall be admissible in 

evidence as evidence of the facts therein stated and the results of 

the analysis or examination referred to therein, provided (i) the 

certificate of analysis is filed with the clerk of the court hearing the 

case at least seven days prior to the hearing or trial and (ii) a copy 

of such certificate is [provided to counsel of record for the accused 

upon request made in the manner prescribed by the statute]. 

2005 Va. Acts, chs. 868, 881. 

 Code § 19.2-187.1 provides that, “in any hearing or trial in which a certificate of analysis 

is admitted into evidence pursuant to § 19.2-187,” the accused “shall have the right to call the 

person performing such analysis or examination . . . as a witness therein, and examine him in the 

same manner as if he had been called as an adverse witness.” That code section further provides 

that “[s]uch witness shall be summoned and appear at the cost of the Commonwealth.” Code 

§ 19.2-187.1. Manifestly, in order to compel the attendance of a witness at trial via the court’s 

subpoena power, a subpoena for that witness must be issued and served in advance of trial.3

 3

 No statute or rule requires a subpoena for an appearance in circuit court be issued any 

particular number of days prior to trial, although service “at least 10 days before trial” is 

recommended. See Rule 3A:12 (governing procedure for compelling attendance of witnesses in 

criminal trials in circuit courts but not specifying number of days in advance of trial by which 

subpoenas should or must be issued); Sup. Ct. Rules Part 1, Form 3 (providing in Uniform 

Pretrial Scheduling Order pursuant to Rule 1:18B that “Early filing of a request for witness 

subpoenas is encouraged so that such subpoenas may be served at least 10 days before trial”); cf.

Shifflett v. Commonwealth, 218 Va. 25, 30, 235 S.E.2d 316, 319-20 (1977) (holding defendant 
- 6 -

Here, because appellant failed to notify the Commonwealth or the trial court of his desire 

to confront the preparer of the certificates of drug analysis until the day of trial, appellant failed 

properly to avail himself of the protections of Code § 19.2-187.1. We hold, as have other courts 

interpreting similar statutes, that this failure constituted a simultaneous waiver of any right he 

may have had under the Confrontation Clause to cross-examine the preparer of the certificates. 

The right of an accused to confront and cross-examine is “‘not absolute and may, in 

appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.’” 

Baugh v. Commonwealth, 14 Va. App. 368, 371, 417 S.E.2d 891, 893 (1992) (quoting Chambers 

v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038, 1046, 35 L. Ed. 2d 297, 309 (1973)). “It has 

[also] long been recognized that a defendant may voluntarily waive the right to confront[ation] 

. . . .” State v. Cunningham, 903 So. 2d 1110, 1120 (La. 2005) (citing Diaz v. United States, 223 

U.S. 442, 450, 32 S. Ct. 250, 252, 56 L. Ed. 500, 503 (1912)). 

[T]he right may be waived by a guilty plea, Boykin v. Alabama, 

395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), by a 

defendant’s disruptive conduct in the courtroom, Illinois v. Allen, 

397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970), by a 

defendant’s voluntary absence from trial, Taylor v. United States, 

414 U.S. 17, 94 S. Ct. 194, 38 L. Ed. 2d 174 (1973), and by a 

defendant’s intimidation of a grand jury witness from testifying at 

trial, United States v. Carlson, 547 F.2d 1346 (8th Cir. 1976), cert. 

denied, 431 U.S. 914, 97 S. Ct. 2174, 53 L. Ed. 2d 224 (1977). 

Bilokur v. Commonwealth, 221 Va. 467, 472, 270 S.E.2d 747, 751 (1980). The Virginia 

Supreme Court has also held that a defendant may, through counsel, waive his right to 

confrontation by stipulating to the use of a witness’ prior testimony. Id. at 473-74, 270 S.E.2d at 

751-52 (adopting “as the rule in Virginia” that counsel for a criminal defendant may, under 

certain circumstances, “‘waive his client’s Sixth Amendment right of confrontation by 

 

not entitled to continuance based on unavailability of witness because attempt to subpoena 

witness only two days before trial did not constitute due diligence). 
- 7 -

stipulating to the admission of evidence’” (quoting United States v. Stephens, 609 F.2d 230, 

232-33 (5th Cir. 1980))).4

 It is also “beyond question that under the Due Process Clause of the Fourteenth 

Amendment [a state] may attach reasonable time limitations to the assertion of federal 

constitutional rights.” Michel v. Louisiana, 350 U.S. 91, 97, 76 S. Ct. 158, 162, 100 L. Ed. 83, 

91 (1955). “A state procedural rule which forbids the raising of federal questions at late stages in 

 4

 The holding in Bilokur does not require that a defendant be given an opportunity, on the 

record, expressly to accept or reject his attorney’s confrontation waiver. 221 Va. at 473, 270 

S.E.2d at 751-52. It provides merely that such a waiver is not valid if the defendant’s lack of 

consent is apparent in the record. Id.

The holding in Bilokur is consistent with the holding in Brookhart v. Janis, 384 U.S. 1, 

86 S. Ct. 1245, 16 L. Ed. 2d 314 (1966), on which it relied in part. Brookhart involved the 

“knowing agree[ment]” of a defendant’s attorney to “a prima facie trial,” a proceeding in which 

“the State need make only a prima facie showing of guilt” and in which the defendant agrees to 

“neither offer evidence on [his] behalf nor cross-examine any of the State’s witnesses.” Id. at 

6-7, 86 S. Ct. at 1248, 16 L. Ed. 2d at 318-19. Immediately after the attorney’s statement, 

however, the defendant unequivocally said, “‘I would like to point out in no way am I pleading 

guilty to this charge,’” which the Court held negated his attorney’s prior agreement to a prima 

facie trial. Id. The Supreme Court held this sequence of events “narrow[ed]” the question on 

appeal “to whether counsel has the power to enter a plea which is inconsistent with his client’s 

expressed desire and thereby waive his client’s constitutional right to plead not guilty and have a 

trial in which he can confront and cross-examine the witnesses against him.” Id. at 7, 86 S. Ct. at 

1248, 16 L. Ed. 2d at 319 (emphasis added). The Court held that “the constitutional rights of a 

defendant cannot be waived by his counsel under such circumstances.” Id. (emphasis added). 

The Court noted its ongoing recognition of the principle “that counsel may, under some 

conditions, where the circumstances are not ‘exceptional, preclude the accused from asserting 

constitutional claims,’” but it held that this principle did not allow an attorney to “override his 

client’s desire expressed in open court to plead not guilty.” Id. at 7-8, 86 S. Ct. at 1248-49, 16 

L. Ed. 2d at 319 (quoting Henry v. Mississippi, 379 U.S. 443, 451, 85 S. Ct. 564, 569, 13 

L. Ed. 2d 408, 414-15 (1965) (emphasis added)); see also, e.g., Stephens, 609 F.2d at 232-33 & 

n.2 (holding counsel’s stipulation to facts without express consent of accused is valid as long as 

stipulation is not “tantamount to a guilty plea”), cited with approval in Bilokur, 221 Va. at 473, 

270 S.E.2d at 751-52; Symons v. Klinger, 372 F.2d 47, 49-50 (9th Cir. 1967) (holding waiver of 

defendant’s right to confrontation valid under Brookhart “without [defendant’s] personal waiver 

and consent” where defendant’s attorney fully cross-examined government witnesses at 

preliminary hearing, mounted “vigorous defense . . . based largely upon . . . [c]onstitutional 

issues” via pre-trial motion to suppress, and then stipulated to use of “record made at preliminary 

hearing in lieu of trial”). 

Appellant raised no claim at trial or on appeal that his counsel could not validly waive his 

right of confrontation. Thus, we do not consider this issue further in this appeal. 
- 8 -

the case, or by any other than a prescribed method, has been recognized as a valid exercise of 

state power.” Williams v. Georgia, 349 U.S. 375, 382-83, 75 S. Ct. 814, 819, 99 L. Ed. 1161, 

1170 (1955). Under Code § 19.2-266.2, for example, absent “good cause shown,” an accused 

seeking to exclude evidence he contends was gathered in violation of his Fourth, Fifth, or Sixth 

Amendment rights waives the opportunity to raise such a claim if he does not file a written 

motion to suppress at least seven days before trial. That code section contains a related 

subdivision addressing a defendant’s claim that charges against him are based on an 

unconstitutional statute and provides that failure to raise such a claim in a timely fashion also 

constitutes a waiver. See Johnson v. Commonwealth, 37 Va. App. 634, 644-45, 561 S.E.2d 1, 6 

(2002). 

 Similarly, we hold Code § 19.2-187.1 sets out a reasonable procedure to be followed in 

order for a defendant to exercise his right to confront a particular limited class of scientific 

witnesses at trial and that a defendant’s failure to follow this procedure amounts to a waiver of 

the constitutional right to confront such witnesses.5 This procedure encourages judicial and 

governmental economy by providing that certain scientific witnesses, employees of the state, 

need not routinely be called to testify, but it preserves the right of a defendant to confront any 

such witness as long as he notifies the Commonwealth, in a specific and timely fashion, of his 

desire to do so. 

 The holding in Crawford, the United States Supreme Court’s 2004 Confrontation Clause 

decision, does not compel a contrary result, as appellate courts in other jurisdictions have 

decided. The Supreme Court of Louisiana, for example, reached just such a result in State v. 

 5

 We consider only the constitutionality of the statutes at issue in this case, Code 

§§ 19.2-187 and 19.2-187.1, which involve admission of the results of specified categories of 

scientific “analysis or examination,” and do not decide the constitutionality of similar statutes 

that may involve other categories of evidence. 
- 9 -

Cunningham, 903 So. 2d 1110 (La. 2005). Pursuant to the statute at issue in Cunningham, if the 

prosecutor provided a defendant with a copy of the certificate of analysis and written notice, at 

least ten days prior to trial, of his intent to offer the certificate into evidence at trial, the court was 

required, subject to certain exceptions, to admit the certificate “as prima facie proof of the facts 

shown thereon, and as prima facie proof of [the chain of] custody of the physical evidence.” Id.

at 1115 (citing La. Rev. Stat. Ann. § 15:501). The statute provided the certificate would not 

serve as prima facie proof if “the party against whom the certificate is offered requests a 

subpoena for the person performing the analysis at least five days before trial” or “‘the person 

subpoenaed responds to the subpoena.’” Id. (quoting La. Rev. Stat. Ann. § 15:501). The 

defendant contended the statute both deprived him of his right to confront and cross-examine the 

witness and impermissibly shifted the burden of proof to him. Id. at 1113-14. 

 In rejecting the defendant’s arguments, the court explained: 

These statutes are [merely] a formalized means of effecting a 

stipulation to the admissibility of matters which often are not in 

dispute. . . . After the State has put the defendant on notice, the 

statute provides the defendant with a small procedural step which 

must be taken to exercise the right to confrontation. In essence, it 

is the defendant’s decision which dictates whether the State must 

produce the individual who prepared the report or whether the 

defendant will agree to use of the [analyst’s] report. . . . 

* * * * * * * 

 . . . As the State conceded at oral argument, once the 

defendant requests the subpoena, [the express language of the 

statute provides] the certificate of analysis has no evidentiary value 

and the State must call the relevant witnesses to prove its case. 

Id. at 1119-21; see also City of Las Vegas v. Walsh, 124 P.3d 203, 207-08 (Nev. 2005) (en 

banc); State v. Campbell, 719 N.W.2d 374, 376-78 (N.D. 2006). As additional support for its 

reasoning, the Louisiana Supreme Court cited a recognized procedural step involved in a 

defendant’s exercising his Fourth Amendment rights under Louisiana law, noting that “a 
- 10 -

defendant must file a [pre-trial] motion to suppress in order to contest an unconstitutional 

search.” Cunningham, 903 So. 2d at 1121 n.11; see Code § 19.2-266.2. 

 Oregon’s appellate courts have taken a like approach, holding Oregon’s statute “is a 

legislative decision to make what amounts to [a request to the defendant to stipulate to the 

contents and chain of custody of a certificate of analysis] in every . . . case.” State v. Hancock, 

854 P.2d 926, 929 (Ore. 1993); see State v. Miller, 144 P.3d 1052, ____ (Ore. Ct. App. 2006) 

(holding reasoning in Hancock still valid after Crawford). The Oregon statute at issue in 

Hancock, which set out a procedure almost identical to Virginia’s, provided that certain reports 

analyzing controlled substances “‘shall be accepted as prima facie evidence of the results of the 

analytical findings’” but that “‘the defendant may subpoena the [analyst] to testify at the 

preliminary hearing and trial . . . at no cost to the defendant.’” Hancock, 854 P.2d at 926 

(quoting Or. Rev. Stat. § 475.235). Pursuant to that statute, the Court observed in Hancock, 

 Defendant has the right to confront the [analyst]. . . . By its 

very terms, [the Oregon statute] expressly safeguards a defendant’s 

right to confront and cross-examine, “face-to-face,” the person 

who performed the tests. . . . If a defendant wants to 

cross-examine the [analyst], he or she must subpoena the [analyst]. 

Service of the subpoena puts the state on notice that the defendant 

wants to cross-examine the [analyst]. At trial, the state can, if it 

wishes, call the [analyst] to testify to the testing processes, or it can 

offer the report [as permitted by the statute]. 

 

Id. at 929. 

 Similarly, we hold that, even in the wake of Crawford, Virginia’s applicable statutes, 

Code §§ 19.2-187 and 19.2-187.1, are merely a request to the defendant to stipulate to the 

admissibility of the contents of any properly filed certificates of analysis. Where a defendant 

waits until trial to assert his right to cross-examine the analyst who prepared a particular 

certificate, he accepts the request to stipulate and waives his right to confront that witness. See

John G. Douglass, Beyond Admissibility: Real Confrontation, Virtual Cross-Examination, and 
- 11 -

the Right to Confront Hearsay, 67 Geo. Wash. L. Rev. 191, 229 (1999) (“Properly applied, . . . a 

rule providing that defendants must request a subpoena to invoke the confrontation right should 

not work a serious hardship on defendants. In essence, the rule requires that a defendant mean 

what he says when he asks for confrontation.”). But see State v. Smith, 2006 Ohio 1661, 

*P21-*P26, 2006 Ohio App. LEXIS 1555, **18-**22 (holding “waiver of the confrontation right 

before trial must be made knowingly, intelligently, and voluntarily” and that waiver not 

voluntary in Smith’s case because language on copy of certificate provided to him contained 

insufficient information regarding effect of waiver); State v. Caulfield, 722 N.W.2d 304, 312-13 

(Minn. 2006) (adopting reasoning of Ohio Court of Appeals in Smith). If the defendant does not 

wish to enter into such a stipulation, Code § 19.2-187.1 provides the mechanism by which he 

may reject the request and have the analyst summoned to appear at trial at the cost of the 

Commonwealth in order to be subject to cross-examination. See Crawford, 541 U.S. at 59 n.9, 

124 S. Ct. at 1369 n.9, 158 L. Ed. 2d at 197 n.9 (“[W]hen the declarant appears for 

cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his 

prior . . . statements.”). 

In sum, we hold a defendant’s failure timely to notify the Commonwealth of his desire to 

confront the forensic analyst at trial constitutes a waiver of that right. To the extent appellant 

also claims the procedure in Code § 19.2-187.1 unconstitutionally placed upon him the burden of 

presenting evidence in order to exercise his right to call the analyst, see, e.g., Green v. Young, 

264 Va. 604, 609, 571 S.E.2d 135, 138 (2002) (recognizing due process right of accused to have 

Commonwealth prove every element of case against him beyond reasonable doubt), we hold that 

question is not before us on appeal. Because appellant failed under Code § 19.2-187.1 to 

“summon[]” “the person performing [the] analysis or examination” or to ask that the 

Commonwealth do so, the trial court never had occasion to address the proper order of proof. 
- 12 -

Assuming without deciding the provisions of Code § 19.2-187.1 relating to the order of proof at 

trial could conceivably be applied in a way that violates an accused’s due process rights,6 such an 

application did not occur in appellant’s case. See Grosso v. Commonwealth, 177 Va. 830, 

838-39, 13 S.E.2d 285, 288 (1941) (assuming without deciding statute may be applied in 

discriminatory fashion, “one challenging the constitutionality of a provision in a statute has the 

burden of showing that he himself has been injured thereby”). Thus, we do not consider such a 

claim in this appeal. 

 6

 In Hancock, the Supreme Court of Oregon narrowly interpreted a statute very similar to 

Virginia’s so as to protect a defendant’s due process right to have the Commonwealth prove 

every element of its case beyond a reasonable doubt: 

We interpret the statute to protect the right of a defendant, if he or 

she chooses, to have an opportunity to cross-examine the person 

conducting the analysis before the analytical report is received 

into evidence. If a defendant wants to cross-examine the [analyst], 

he or she must subpoena the [analyst]. . . . At trial, the state can, if 

it wishes, call the [analyst] to testify to the testing processes, or it 

can offer the report [as permitted by the statute]. In either event, 

before the report is received in evidence, if the defendant has 

subpoenaed the [analyst], the defendant must be given the 

opportunity to cross-examine the [analyst]. This construction of 

the statute protects the defendant’s confrontation rights and avoids 

any confrontation problem. See State v. Jackson, 224 Or. 337, 

345, 356 P.2d 495 (1960) (court has “a duty to give an act a 

constitutional construction if it can be done without wrenching the 

meaning of words”). 

854 P.2d at 929 (emphasis added); see State v. Wells, 144 P.3d 1077, ____ (Ore. Ct. App. 2006) 

(holding ruling in Hancock that narrowed statutory scheme did not shift burden of proof to 

defendant remains good law in wake of Crawford); see also Pamela R. Metzger, Cheating the 

Constitution, 59 Vand. L. Rev. 475, 525 (2006) (considering statute that (i) presumes certificate 

of analysis proves “elemental fact” and (ii) provides presumption “is rebuttable if, and only if, 

the defendant puts on a case” and opining that such a statute “is [a] classic [example of] burden 

shifting in defiance of the Constitution”). 

The Supreme Court of Oregon eliminated potential constitutional problems relating to 

“burden shifting” by requiring that the analyst be available for cross-examination in the 

prosecution’s case-in-chief. 
- 13 -

III. 

For these reasons, we hold the procedure in Code §§ 19.2-187 and 19.2-187.1, to the 

extent that procedure is before us in this appeal, adequately protects a defendant’s Confrontation 

Clause rights. Because appellant waived that right by failing to invoke it in advance of trial, we 

hold the trial court’s admission of the challenged certificates was not error on these facts, and we 

affirm appellant’s conviction. 

Affirmed.