The three-judge panel continued in relevant part: In making these general observations, we by no means intimate in this case that defense counsel’s insistence upon the presence of lab chemist Messana and of hospital worker Gallant at his client’s DWI trial was frivolous or designed to harass those witnesses. As we have already noted, defense counsel has identified several potential discrepancies in the lab reports and on the blood certificate that justify the sought-after cross-examination of these witnesses. Rather, we express our disfavor of routine demands for the live testimony of lab technicians and hospital workers if there truly is nothing worthwhile to be asked of them on cross-examination. Although we strive to enforce constitutional rights, we also discourage adversarial gamesmanship.
That being stated, we deem it appropriate prospectively to require, as a condition of our treatment of lab reports and blood sample certificates as “testimonial” documents, that defense counsel provide reasonable advance notice to prosecutors that they wish to cross-examine the authors of those documents at trial. In the absence of such reasonable notice, a defendant shall be deemed to have waived his or her right to confrontation.
By analogy, such a notice-demand requirement is contained within N.J.S.A. 2C:35-19(c). That statute allows lab certificates attesting to the composition of a controlled dangerous substance to be presented in court in lieu of the laboratory technician’s live testimony, unless the defendant provides the State with advance notice of objection to the admission of the certificate and demands the technician’s appearance at trial. In State v. Miller, our Supreme Court declared that statute’s notice-demand procedure constitutional under the Confrontation Clause, finding no infringement upon a defendant’s rights by requiring him or her to “object to the lab certificate and assert that the composition, quality, or quantity of the tested substance will be contested at trial.” In this fashion, the statute serves a legitimate purpose, i.e., “to weed out prior to trial those cases in which there is a contest over the scientific proof and with respect to which the State will be required to produce a witness or prove why one is not necessary.”
The demand-notice requirement is a hollow protection against “gamesmanship.” It only requires the defense to send a cut and pasted written objection to the municipal prosecutor.
