Can the State Require the Defendant to Pay for the State’s Witnesses?

The Sixth Amendment affords the Defendant the right to confront witnesses against him or her. This right can be waived. This right has certain exceptions and caveats. But in recent years, following Crawford v. Washington and Melendez-Diaz v. Massachusetts and Bullcoming v. New Mexico, the Supreme Court of the United States has reiterated that the Defendant has the right to confront not only live witnesses who observed the alleged conduct, but also chemical analysts and other experts who may have conducted tests in a faraway lab.

This is particularly pertinent in Driving While Impaired cases, especially those involving blood draws, where States face short-staffed crime labs, and where there may be fewer than a dozen analysts in the entire state for a section of the crime lab dealing with blood analysis.

From the state’s point of view, any days not spent in the lab testing blood because the analyst is testifying in court are days where new crimes are not being solved. From the defendant’s point of view, a vigorous cross examination of the specifics behind the blood draw, the blood test, and the conclusions reached is essential to the defense in many cases where impairment is the only issue at stake.

What if the state is required to provide the witness in court? Can the state then bill the Defendant for the cost if the Defendant is found guilty? Defendants can already be assessed a $600 fee for the mere examination of the blood. But can Defendants be charged additional $600 fees for simply exercising what the Supreme Court has held to be a fundamental constitutional right?

The North Carolina General Assembly is testing that proposition with a change in its omnibus appropriations bill that reads:

(11) For the services of an expert witness employed by the North Carolina State Crime Laboratory who completes a chemical analysis pursuant to G.S. 20-139.1 or a forensic analysis pursuant to G.S. 8-58.20 and provides testimony about that analysis in a defendant’s trial, the district or superior court judge shall, upon conviction of the defendant, order payment of the sum of six hundred dollars ($600.00) to be remitted to the Department of Justice for support of the State Crime Laboratory. This cost shall be assessed only in cases in which the expert witness provides testimony about the chemical or forensic analysis in the defendant’s trial and shall be in addition to any cost assessed under subdivision (7) of this subsection.

(12) For the services of an expert witness employed by a crime laboratory operated by a local government or group of local governments who completes a chemical analysis pursuant to G.S. 20-139.1 or a forensic analysis pursuant to G.S. 8-58.20 and provides testimony about that analysis in a defendant’s trial, the district or superior court judge shall, upon conviction of the defendant, order payment of the sum of six hundred dollars ($600.00) to be remitted to the general fund of the local governmental unit that operates the laboratory to be used for local law enforcement. This cost shall be assessed only in cases in which the expert witness provides testimony about the chemical or forensic analysis in the defendant’s trial and shall be in addition to any cost assessed under subdivision (8) of this subsection.

Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.