Virginia Certificates of Analysis and the Department of Forensic Science

In many Virginia criminal cases, the Commonwealth relies on scientific testing performed by the Virginia Department of Forensic Science (DFS). Drug possession cases, firearm cases, DNA cases, blood-alcohol cases, and other prosecutions may involve laboratory testing that produces a document commonly known as a Certificate of Analysis.

A Certificate of Analysis can be extremely important to a criminal case because Virginia law permits certain certificates to be admitted into evidence without requiring the forensic scientist who performed the testing to personally appear and testify—provided that the statutory requirements are satisfied.

For a person charged with a crime in Virginia, however, receiving a Certificate of Analysis does not necessarily mean that the laboratory’s conclusions are beyond challenge.

Virginia law provides specific procedures governing Certificates of Analysis, notice, objections, chain of custody, forensic scientist testimony, and access to underlying laboratory materials.

The principal statutes are found in Virginia Code §§ 19.2-187 through 19.2-187.2, along with related provisions governing the Department of Forensic Science.

What Is a Certificate of Analysis in Virginia?

A Certificate of Analysis is essentially a forensic laboratory report documenting the results of an examination or analysis.

Virginia Code § 19.2-187 expressly provides that the term “certificate of analysis” includes reports of analysis and results of laboratory examination.

Depending upon the case, a Certificate of Analysis may address questions such as:

• Whether a substance is a controlled substance
• The identity of a suspected drug
• The weight or quantity of a substance
• DNA testing
• Firearms and ammunition examinations
• Latent fingerprints
• Toxicology
• Blood-alcohol testing
• Trace evidence
• Other forensic examinations

The Virginia Department of Forensic Science operates forensic laboratories throughout the Commonwealth and performs many of the examinations relied upon by prosecutors in criminal cases. DFS identifies Virginia Code §§ 19.2-187, 19.2-187.01, 19.2-187.1, and 19.2-187.2 among the statutes governing Certificates of Analysis and related forensic evidence.

Virginia Code § 19.2-187: When Is a Certificate of Analysis Admissible?

Virginia Code § 19.2-187 is the principal statute governing the admission of Certificates of Analysis.

The statute provides that, in a criminal hearing or trial, a duly attested Certificate of Analysis may be admitted as evidence of the facts stated in the certificate and the results of the analysis or examination when the statutory requirements have been met.

This creates an important exception to the ordinary requirement that a witness with personal knowledge appear in court and testify.

For example, suppose a person is charged with possession of cocaine in Virginia. The suspected substance is submitted to DFS. A forensic scientist examines the substance and prepares a Certificate of Analysis stating that the material tested positive for cocaine.

The Commonwealth may seek to introduce that certificate rather than calling the forensic scientist to testify.

But the Commonwealth still has to comply with the requirements of Virginia law.

The Seven-Day Rule Under Virginia Code § 19.2-187

Virginia Code § 19.2-187 contains an important notice requirement.

When the Commonwealth intends to offer a Certificate of Analysis at a preliminary hearing, the certificate generally must be filed with the clerk of court at least seven days before the proceeding.

The statute contains additional procedures for other hearings and trials, including the procedures established by § 19.2-187.1.

This deadline matters.

A defense attorney should not assume that a Certificate of Analysis can simply be handed to the defense immediately before court and automatically admitted into evidence.

The timing and manner in which the certificate is provided can affect its admissibility.

Virginia Code § 19.2-187.1: The Defendant’s Right to Object

Virginia Code § 19.2-187.1 provides important protections for defendants.

In a trial or hearing other than a preliminary hearing, when the Commonwealth intends to introduce a Certificate of Analysis in lieu of testimony, the Commonwealth generally must provide the accused or defense counsel with a copy of the certificate at least 28 days before the hearing or trial.

The Commonwealth must also provide notice of the accused’s right to object to admission of the certificate without the testimony of the person who performed the analysis or examination.

This is one of the most important provisions for a Virginia criminal defense attorney to understand.

The 14-Day Objection Deadline

Under § 19.2-187.1, the accused may object in writing to admission of the Certificate of Analysis in lieu of testimony.

The statute provides that the objection generally must be filed within 14 days after the certificate and notice are filed with the clerk by the Commonwealth.

If a timely objection is not made, the objection may be deemed waived.

Accordingly, a defense attorney who receives a DFS Certificate of Analysis should carefully calendar the applicable deadlines.

A failure to object within the statutory period can have significant consequences.

What Happens If the Defense Objects?

If the defendant timely objects to admission of the Certificate of Analysis without the analyst’s testimony, the certificate generally cannot simply be introduced by itself.

Virginia Code § 19.2-187.1 provides several circumstances under which the certificate may nevertheless be admitted, including when:

1.            The forensic analyst testifies during the Commonwealth’s case-in-chief and is available for cross-examination;

2.            The defendant or defense counsel waives the objection;

3.            The parties stipulate to admission of the certificate.

This gives the defense an important strategic decision.

In an appropriate case, requiring the forensic scientist to appear can provide the defense with an opportunity to explore the testing methodology, laboratory procedures, quality control, chain of custody, potential contamination, interpretation of results, and limitations of the testing.

The Defense Can Call the Forensic Scientist

Virginia Code § 19.2-187.1(F) provides another important protection.

A defendant in a proceeding in which a Certificate of Analysis is offered has the right to call the person who performed the analysis or a person involved in the chain of custody as a witness and examine that person in the same manner as an adverse witness.

The statute further provides that the witness is to be summoned and appear at the cost of the Commonwealth, subject to the statutory provision concerning costs if the defendant is ultimately convicted.

This can be particularly important when the defense has questions about the laboratory examination or the handling of the evidence.

Certificates of Analysis and Chain of Custody

One of the most significant features of Virginia law is found in Virginia Code § 19.2-187.01.

Under that statute, a properly attested report of analysis from certain authorized laboratories—including the Department of Forensic Science—can constitute prima facie evidence of the chain of custody for the material described in the report.

The statute addresses custody from the time the material is received by an authorized agent of the laboratory until the material is released following the analysis or examination.

This provision can make chain-of-custody issues different in Virginia than a defendant might otherwise expect.

A Certificate of Analysis may therefore provide the Commonwealth with evidentiary support concerning the laboratory’s custody of the material.

That does not, however, mean that every conceivable chain-of-custody issue is automatically resolved.

The defense should examine the entire evidentiary history, including:

•              Who initially recovered the evidence;

•              How the evidence was packaged;

•              Whether the package was properly sealed;

•              Who transported the evidence;

•              When DFS received it;

•              How the laboratory documented receipt;

•              Whether the evidence was properly identified;

•              Whether testing occurred;

•              Whether portions of the evidence were consumed during testing;

•              How the evidence was stored;

•              Who had access to the evidence; and

•              How and when the evidence was ultimately released.

A Certificate of Analysis should be examined as part of the entire evidentiary record—not in isolation.

Can the Defense Obtain the DFS Results?

Yes.

Virginia Code § 9.1-1104 provides an important mechanism for an accused person or the accused person’s attorney to obtain the results of a DFS investigation related to the crime.

The Virginia Department of Forensic Science explains that the results of a forensic scientist’s examination are reflected in the Certificate of Analysis and that a person accused of a crime or that person’s attorney may request those results under § 9.1-1104.

This can be particularly useful when the defense has not received all of the relevant forensic documentation through ordinary discovery.

A defense attorney should consider requesting the DFS results when appropriate and reviewing the materials carefully rather than relying solely on the prosecutor’s description of the laboratory findings.

Can the Defense Obtain the Underlying Laboratory Records?

Sometimes.

Virginia Code § 19.2-187.2 addresses subpoenas for writings or documents used to reach the conclusion contained in a Certificate of Analysis.

The statute generally requires an affidavit establishing that the requested writings or documents are material before a subpoena duces tecum may issue.

The statute also provides a mechanism allowing the court, under certain circumstances, to order that documents be made available for inspection at the laboratory rather than requiring their production elsewhere when the Commonwealth establishes that production would impose an undue burden on DFS.

This can be an important distinction.

A Certificate of Analysis may tell the court what the laboratory concluded, but the defense may have legitimate reasons to investigate how the laboratory reached that conclusion.

Depending upon the circumstances, that investigation may involve laboratory notes, analytical data, documentation, and other materials.

The Certificate Is Not the Same Thing as the Evidence

A common misconception is that a Certificate of Analysis automatically proves every aspect of the Commonwealth’s case.

It does not.

A forensic laboratory report generally addresses the examination performed by the laboratory and the results of that examination.

It does not necessarily establish every other element the Commonwealth must prove.

For example, in a drug possession case, a DFS Certificate of Analysis identifying a substance as a controlled substance may address the identity of the substance.

It does not necessarily establish:

•              Who possessed the substance;

•              Whether the defendant knew the substance was present;

•              Whether the defendant exercised dominion and control over it;

•              Where the substance was found;

•              Whether the search was lawful;

•              Whether the evidence was properly seized; or

•              Whether the Commonwealth has established every other element of the charged offense.

Those are separate issues.

Why the DFS Certificate Matters in Virginia Drug Cases

Certificates of Analysis are particularly important in Virginia drug prosecutions.

When a suspected controlled substance is submitted to DFS, the laboratory may determine what substance is present.

The Certificate of Analysis can then become evidence supporting the Commonwealth’s allegation that the material was a particular controlled substance.

But the defense should not stop its analysis at the words appearing on the first page of the report.

Depending on the case, counsel may need to examine the substance’s:

• Identity
• Weight
• Sampling
• Testing Methodology
• Packaging
• Chain of custody
• Laboratory documentation
• Analyst qualifications
• Quality-control procedures
• Relationship between the laboratory’s findings and the specific criminal charge.

The Certificate of Analysis is an important piece of evidence—but it is still only one part of the case.

Certificates of Analysis and Preliminary Hearings

Certificates of Analysis can also play a significant role at a Virginia preliminary hearing.

Virginia Code § 19.2-187 specifically addresses the use of Certificates of Analysis at preliminary hearings and establishes a seven-day filing requirement when the Commonwealth intends to offer the certificate at the preliminary hearing.

Because preliminary hearings can determine whether a felony charge proceeds toward trial, the timing and admissibility of forensic evidence can be extremely important.

A defense attorney should carefully examine whether the Commonwealth has complied with the statutory requirements before simply agreeing to the admission of a DFS certificate.

Does the Defense Have to Accept the DFS Scientist’s Conclusion?

No.

A Certificate of Analysis is evidence. It is not an instruction to the judge or jury that the Commonwealth’s conclusion must be accepted without question.

When the forensic scientist testifies, the defense may have an opportunity to cross-examine the analyst regarding the examination and the conclusions reached.

Depending on the particular case, relevant questions may include:

• What testing was performed?
• What methodology was used?
• What equipment was used?
• Was the equipment properly calibrated?
• What quality-control procedures were followed?
• What standards were used?
• Was the sample sufficient?
• Was the sample representative?
• Was the evidence contaminated?
• Were there limitations on the testing?
• Were alternative explanations considered?
• What documentation was generated?
• Did another analyst review the work?
• Were there any discrepancies in the laboratory record?

The answers will depend upon the particular type of forensic examination.

A Certificate of Analysis Can Be Powerful Evidence—but It Should Be Scrutinized

The Virginia General Assembly has created a statutory framework that makes Certificates of Analysis easier for the Commonwealth to introduce in criminal cases.

At the same time, Virginia law provides defendants with mechanisms to object to the certificate, require testimony, examine forensic personnel, obtain results, and investigate the evidence underlying the laboratory’s conclusions.

The important statutes include:

• Virginia Code § 19.2-187 — Admission into evidence of certain Certificates of Analysis
• Virginia Code § 19.2-187.01 — Certificate of Analysis as evidence of chain of custody
• Virginia Code § 19.2-187.1 — Notice, objections, waiver, continuances, and the right to examine forensic personnel
• Virginia Code § 19.2-187.1 — Notice, objections, waiver, continuances, and the right to examine forensic personnel
• Virginia Code § 19.2-187.2 — Procedure for subpoenas involving analysis evidence
• Virginia Code § 9.1-1104 — Requests for DFS investigation results

For attorneys and defendants, understanding these statutes can be just as important as understanding the scientific testing itself.

What Should You Do If Your Virginia Criminal Case Involves a DFS Certificate?

If you are charged with a Virginia crime involving laboratory evidence, do not assume that the Certificate of Analysis ends the inquiry.

Your attorney should determine:

• What evidence was submitted to DFS?
• What testing was performed?
• What does the Certificate of Analysis actually establish?
• Was the certificate properly provided and filed?
• What deadlines apply to an objection?
• Should the defense require the forensic scientist to testify?
• Are there potential chain-of-custody issues?
• Are additional DFS records or laboratory materials available?
• Does the laboratory’s conclusion actually establish an element of the charged offense?
• Are there scientific or methodological issues that should be explored through cross-examination or independent expert review?

These questions can be especially important in felony drug, firearm, DUI, and other cases where forensic testing may provide critical evidence for the prosecution.

Virginia Criminal Defense Attorneys Can Challenge Forensic Evidence

A Certificate of Analysis can be an important piece of evidence in a Virginia criminal prosecution, but it should never be treated as automatically conclusive.

Virginia law provides specific procedures governing the admission of Certificates of Analysis and the defendant’s ability to object, obtain forensic results, examine witnesses, and challenge the evidence.

If you have been charged with a crime in Virginia and the Commonwealth is relying upon a Department of Forensic Science Certificate of Analysis, an experienced Virginia criminal defense attorney can review the certificate and determine how it affects the prosecution’s case.

The difference between accepting a laboratory report at face value and carefully examining how that report was created can be significant in a criminal case.

This article is for general informational purposes only and does not constitute legal advice. Virginia evidence and criminal procedure are fact-specific, and the applicable law should be reviewed in the context of the individual case.

Primary Virginia Authorities

• Virginia Code § 19.2-187 — Admission into evidence of certain Certificates of Analysis
• Virginia Code § 19.2-187.01 — Certificate of Analysis as evidence of chain of custody
• Virginia Code § 19.2-187.1 — Procedures for notifying accused of Certificate of Analysis; waiver; continuances
• Virginia Code § 19.2-187.2 — Procedure for subpoena duces tecum of analysis evidence
• Virginia Code § 9.1-1104 — DFS requests for results
• Virginia Department of Forensic Science — Statutory Authority