August 2009, Page 28

Melendez-Diaz and the Application of Crawford in the Lab
By Steven N. Yermish

Since its issuance in March 2004, the Supreme Court’s decision in Crawford v. Washington1 has generated hundreds of substantive opinions by lower courts addressing several conflicting and highly debated issues, particularly in defining the term “testimonial statement.” The Supreme Court itself has issued opinions construing the application of Crawford in cases involving 911 calls and on-scene police interviews,2 the retroactivity of the decision,3 and the application of the doctrine of forfeiture by wrongdoing.4

In its 2009 opinion in Melendez-Diaz v. Massachusetts,5 the Court considered whether a certification by a forensic lab analyst as to the nature and weight of a controlled substance was a testimonial statement, and thus its admission in lieu of live testimony by the analyst violated the Sixth Amendment right to confrontation. In what was characterized as a straightforward application of Crawford, the Supreme Court held that a forensic lab analyst’s report is a testimonial statement under the Confrontation Clause. In doing so, the Court further clarified the elusive definitional parameters of “testimonial statement” and, significantly, also clarified the issue created by the Court in the original Crawford opinion when it referred to “business records” as a classic example of a nontestimonial statement. These clarifications suggest that, while the Melendez-Diaz decision concerned only a forensic lab report, the holding may have a substantial impact beyond the forensic science field.

This article will discuss the Court’s opinion in Melendez-Diaz and suggest a number of areas in which this opinion, or its underlying reasoning, may be applied. This includes not only forensic science, such as DNA, ballistics, fingerprints, and autopsy reports, but in certain nonforensic evidentiary areas as well. Finally, the issue of so-called “notice and demand” statutes, discussed in Melendez-Diaz and the topic of a pending case in the Court’s next term,6 will be addressed.

The Melendez-Diaz Opinion

Facts and Holding
Luis Melendez-Diaz was charged with cocaine trafficking in an amount between 14 and 28 grams. At trial, the prosecution placed into evidence cocaine seized by the police and “three ‘certificates of analysis’ showing the results of the forensic analysis performed on the seized substances.”7 The certificates reported the weight of the seized substance and that it was found to contain cocaine.8 “The certificates were sworn to before a notary public by analysts at the State Laboratory Institute of the Massachusetts Department of Public Health, as required under Massachusetts law.”9

The majority, in an opinion authored by Justice Scalia, held that, under the Court’s decision in Crawford, the forensic analyst’s certificates “were testimonial statements and the analysts were ‘witnesses’ for purposes of the Sixth Amendment.”10 Therefore, “[a]bsent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to ‘be confronted with’ the analysts at trial.”11 The Court found this case to involve a “rather straightforward application of our holding in Crawford.”12

The Court’s conclusion was supported by two separate rationales, or tests, articulated in Crawford. Initially, the Court noted that “the documents at issue in this case fall within the ‘core class of testimonial statements’” described in Crawford.13 The Court determined that, despite being “denominated by Massachusetts law [as] ‘certificates,’ [the certificates] are quite plainly affidavits, … ‘declaration[s] of facts written down and sworn to by the declarant before an officer authorized to administer oaths.’”14 The Court further discerned that the seminal issue was whether the substance “was, as the prosecution claimed, cocaine,” which was clearly what the analyst would be expected to say at trial; therefore, the “certificates” are functionally identical to live, in-court testimony, doing “precisely what a witness does on direct examination.”15

The Court then applied a second basis for finding the certificates to be testimonial statements, stating:
Here, moreover, not only were the affidavits “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,” but under Massachusetts law the sole purpose of the affidavits was to provide “prima facie evidence of the composition, quality, and the net weight” of the analyzed substance. We can safely assume that the analysts were aware of the affidavits’ evidentiary purpose, since that purpose — as stated in the relevant state law provision — was reprinted on the affidavits themselves.16

Thus the analyst’s certificate plainly satisfies the “objective witness, reasonable belief” definition of a “testimonial statement” (advanced by NACDL in its amicus brief in Crawford).
After finding the analyst’s certificate to be testimonial, Justice Scalia uses the remainder of his majority opinion to refute various assertions by the dissent and the Massachusetts prosecutors.17 Initially he seeks to “assure the reader of the falsity of the dissent’s opening alarum” that the decision is wiping out 90 years of accepted rules governing the admission of scientific evidence in 35 states and six federal circuits.18 He notes that the accepted rules do not cover 90, but rather 30, years and that they rely upon Ohio v. Roberts.19 He ultimately asserts that there is no valid rule that is being overturned; rather, the dissent is seeking to return to a Roberts’ reliability analysis for scientific analysis reports.20
He then addresses the significant points in the dissent, involving the classification of a forensic witness, the reliability of lab reports, the business records issue, and finally, notice and demand statutes. These points will be addressed seriatim.

Witness Status
The dissent and respondent contend that lab analysts are immune from confrontation because they are neither “accusatory” witnesses nor “conventional” or “ordinary” witnesses.21 Analysts are not “accusatory” because “they do not directly accuse [a defendant] of wrongdoing; rather, their testimony is inculpatory only when taken together with other evidence.”22 Similarly, they are not an “ordinary” witness, as the Confrontation Clause contemplated, because: (1) they do not recall past events observed, but rather report their contemporaneous observations of a test, (2) they do not observe the crime “or any human action related to it,” and (3) they do not respond “to questions under interrogation.”23

Justice Scalia rejects both categorizations as attempts to write into the Confrontation Clause definitional limitations that are inconsistent with both the language of the Sixth Amendment as a whole and with the historical understanding of confrontation at common law. First, he dispenses with the “accusatory” witness distinction by observing that the analysts “certainly provided testimony against [the defendant], proving one fact necessary for his conviction — that the substance he possessed was cocaine.”24 He supports his assertion that a witness who provides any inculpatory evidence is subject to confrontation by contrasting the Confrontation Clause with the Compulsory Process Clause, stating:
While the Confrontation Clause guarantees a defendant the right to be confronted with the witnesses “against him,” the Compulsory Process Clause guarantees a defendant the right to call witnesses “in his favor.”

U. S. Const., Amdt. 6. The text of the Amendment contemplates two classes of witnesses — those against the defendant and those in his favor. The prosecution must produce the former; the defendant may call the latter. Contrary to respondent’s assertion, there is not a third category of witnesses, helpful to the prosecution, but somehow immune from confrontation.25

Justice Scalia addresses the “ordinary” witness assertion by engaging in a point by point rebuttal of the dissent case. He notes: “It is doubtful that the analyst’s reports in this case could be characterized as reporting ‘near-contemporaneous observations’; the affidavits were completed almost a week after the tests were performed.”26 More importantly, like the near contemporaneous, on-scene report to the police in Davis v. Washington,27 where the time element pertained only to the statement’s admissibility under the present sense impression exception to the hearsay rule, it was nevertheless subject to confrontation. He also observes that there is no authority for the notion that analysts are not ordinary witnesses because they do not observe the crime. Were that category to be exempt from confrontation, this “novel exception … would exempt all expert witnesses — a hardly ‘unconventional’ class of witnesses.”28 Finally, he dispenses with the “interrogation” aspect of the defense argument by emphasizing again, as he did in Crawford and Davis, that volunteered testimony is not exempt from confrontation and that, in any event, the analysts’ affidavits in this case were presented in response to a police request.29

Forensic Reliability: A Return to Roberts? No
The respondent argues that forensic lab analysis testimony is the result of neutral, scientific testing that is not susceptible or prone to distortion, manipulation, or falsification. In addition, the dissent says that there is little reason to confront the forensic analyst, essentially because he is a neutral scientist whose scientific work is inherently reliable.30
Justice Scalia responds, “[T]his argument is little more than an invitation to return to our overruled decision in Roberts.”31 While he acknowledges that there may be other, better ways to “challenge or verify the results of a forensic test, … the Constitution guarantees one way: confrontation.”32

Possibly the most important part of this opinion is the Court’s recognition that forensic science is neither infallible nor immune from manipulation or falsification. Citing the recent report of the National Academy of Sciences and the amicus brief of the National Innocence Network, the Court observes: “A forensic analyst responding to a request from a law enforcement official may feel pressure — or have an incentive — to alter the evidence in a manner favorable to the prosecution.”33 Observing that the National Academy report and other sources cite deficiencies in forensic science, including a “lack of proper training or deficiency in judgment,” he concludes that cross-examination is essential to “weed out not only the fraudulent analyst, but the incompetent one as well.”34

Business Records
Another position advanced by the respondent is that the lab certificate was akin to a business records certificate offered under Rule 803(6) of the Federal Rules of Evidence, which, even after Crawford, may be admitted in the absence of a live witness. Justice Scalia confutes this argument.

But the affidavits do not qualify as traditional official or business records, and even if they did, their authors would be subject to confrontation nonetheless. Documents kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status. But that is not the case if the regularly conducted business activity is the production of evidence for use at trial.35

Reminding the reader that the confrontation right trumps rules of evidence, he asserts that “business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because — having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial — they are not testimonial.”36

Notably, the majority opinion addresses a point made by the dissent; that a clerk’s certificate authenticating an official record for use as evidence was not subject to confrontation at common law. Agreeing that such certificates are nontestimonial, the Court contrasted those documents with “those cases in which the prosecution sought to admit into evidence a clerk’s certificate attesting to the fact that the clerk had searched for a particular relevant record and failed to find it.”37 The Court asserted that the latter constitutes substantive evidence against a defendant, is therefore a testimonial statement, and consequently that clerk would be subject to confrontation.

The Impact of the Holding — ‘Chicken Little’38 and ‘Notice and Demand’
The dissent predicts the sky will fall, contending that the decision will cause catastrophic ramifications for state and federal criminal cases. For example, the dissent notes that the FBI laboratory conducts more than one million forensic tests each year and that the Court’s decision “means that before any of those million tests reaches a jury, at least one of the laboratory’s analysts must board a plane, find his or her way to an unfamiliar courthouse, and sit there waiting to read aloud notes made months ago.”39
In response, the majority stated:

Perhaps the best indication that the sky will not fall after today’s decision is that it has not done so already. Many states have already adopted the constitutional rule we announce today, while many others permit the defendant to assert (or forfeit by silence) his Confrontation Clause right after receiving notice of the prosecution’s intent to use a forensic analyst’s report. Despite these widespread practices, there is no evidence that the criminal justice system has ground to a halt in the states that, one way or another, empower a defendant to insist upon the analyst’s appearance at trial.40

The majority buttresses its position by embracing the validity of simple “notice and demand” statutes, in which the prosecution is required to give notice to the defendant of its intention to use an analyst’s report at trial. The defense is then given a certain period of time within which to demand the analyst’s presence at trial for confrontation.41

The dissent takes the position that such statutes shift the burden to the defense, particularly (but not only) those that impose additional conditions such as requiring: (a) a showing of good cause for the analyst to testify, (b) the defense to subpoena the analyst, or (c) a sworn affirmation of an intent to cross-examine the analyst.42 The dissent further predicts that some “of the more onerous burden-shifting statutes violate the Confrontation Clause.”43

The majority responds that, like requirements imposed upon a defendant for advance notice applicable to the Compulsory Process Clause, there “is no conceivable reason why he [the defendant] cannot similarly be compelled to exercise his Confrontation Clause rights before trial.”44 The majority correctly asserts that the defendant always bears the burden of making an objection pursuant to the Confrontation Clause. The law reporters are replete with cases, decided since Crawford, finding a waiver of the confrontation issue where a timely and specific objection under the Sixth Amendment was not made. Embracing the principle that “states may adopt procedural rules governing the exercise of such objections,”45 the Court suggests that these statutes will encourage stipulations and obviate the calamity predicted by the dissent.

This may portend more “notice and demand” legislation in the coming year, as states grapple with the prospect of increased costs for prosecution, especially in drug cases. One commentator, in an oft-cited and important study, noted that “[l]egislators rely on … defen[dants’] failures [to satisfy the demand requirement] to help prosecutors get cheaper convictions.”46 Notwithstanding legislative attempts to circumvent the right in forensic lab cases, the critical point is that, under a “notice and demand” statute, the defendant retains the opportunity to exercise his rights under the Confrontation Clause, and to choose when and whether to waive those rights.

Other Forensic Science Applications
While Melendez-Diaz concerned a forensic analysis of a controlled substance, there can be no doubt that the holding applies to other forensic evidence that is subject to lab analysis. This would include, for example, DNA, ballistics, fingerprint, serology, toxicology, and alcohol testing.

The Supreme Court provided confirmation of that fact when, a few days after issuing the Melendez-Diaz opinion, it issued summary dispositions, or “GVR” opinions, in several cases based upon Melendez-Diaz.47 These cases involved the admission of a certification of DNA test results48 and a certification of a ballistics test involving the operability of a firearm and ammunition.49

Significantly, the Court also issued a GVR order in the case of Barba v. California.50 This case involved DNA, but also presented another issue — in Barba, a lab director testified about the results of DNA testing he did not do himself.51 This decision affects an important secondary issue raised in lab analyst cases, where courts often admit the analysis evidence through a lab supervisor, testifying as a purported expert, but who simply testifies to the results as evidence upon which he bases an opinion. Of course, the opinion is that the test is right and the substance is cocaine (or the DNA matches, etc.).

This phenomenon, or artifice, in the law is sometimes referred to as peer review, substitute expert, or verification witness.52 Many courts have rationalized this method of admitting the underlying analysis on the basis that: (a) the report is a business record,53 (b) the evidence is not hearsay because it is not being admitted for its truth,54 or (c) the evidence is admissible simply because it is a type of evidence routinely relied upon by experts in forming their opinion.55 The latter two bases were methodically discredited in the opinion of the New York Court of Appeals in People v. Goldstein.56 The first, and indeed all of the rationales, appear hollow in light of Melendez-Diaz.

Melendez-Diaz confirms the position that an expert cannot testify about lab test reports without confrontation of the person who did the underlying analysis. The Court’s rejection of a business records exception to confrontation for lab analyses, coupled with its seemingly unambiguous call for confrontation of forensic science testing, makes a lab supervisor’s testimony objectionable testimonial hearsay, and hence inadmissible.

Autopsy Reports and the Substitute Medical Examiner
One of the most common, and controversial, situations in which “substitute” testimony is offered occurs in homicide cases involving autopsy reports and “substitute medical examiner” testimony. This scenario usually involves a medical examiner witness, who did not perform (or contemporaneously observe) the autopsy, testifying as an expert as to cause and manner of death by relying upon the original medical examiner’s recorded observations (or the forensic lab’s toxicology or serology analysis). Reciting the contents of such a report under the guise of simply using the information to form an “independent” opinion is nothing more than a semantic contrivance to permit the witness to act as a conduit for objectionable testimonial hearsay.57

Many courts have approved substitute medical examiner testimony, and the witness’s reliance upon, and recitation of, facts from a prior autopsy report. In Rollins v. State, the Maryland Court of Appeals opined that:

Although an autopsy report may be classified as both a business and a public record, it is the contents of the autopsy report that must be scrutinized in order to determine the propriety of its admission into evidence without the testimony of its preparer. If the autopsy report contains only findings about the physical condition of the decedent that may be fairly characterized as routine, descriptive and not analytical, and those findings are generally reliable and are afforded an indicum of reliability, the report may be admitted into evidence without the testimony of its preparer, and without violating the Confrontation Clause.58

In contrast, if the “report contains statements which can be categorized as contested opinions or conclusions, or are central to the determination of the defendant’s guilt, they are testimonial and trigger the protections of the Confrontation Clause.”59

There is little basis for the distinction expressed in Rollins and similar cases. The rationale expressed by many courts for admitting autopsy reports, because they were business or public records of the lab,60 is now clearly undermined by Melendez-Diaz. Moreover, applying the reasonable belief test for testimonial statements, the report of a medical examiner should likely always be considered to be prepared for prosecutorial (or litigation) purposes. Consider the classic example: the medical examiner (or his investigator) goes to the scene or receives information regarding the circumstances of the death that establish or strongly suggest that the death was a homicide. When there is a suggestion or a preliminary finding of a homicide prior to an autopsy, the autopsy takes on all of the characteristics of a criminal investigation conducted by a forensic expert investigator working for the prosecution.
Perhaps it should come as no surprise that, in some states, the medical examiner is a division or agency within a state law enforcement department.61 In other instances, the medical examiner is required to assist law enforcement in investigations.62 The statutory reporting duty applied to most medical examiners expressly requires an autopsy report be delivered to law enforcement or prosecutors, or both.63

Indeed, the Court in Melendez-Diaz refers specifically to autopsy reports when it notes, in footnote 5 of the opinion, that “forensic analyses, such as autopsies and breathalyzer tests, cannot be repeated,” but continues in the text of the opinion to state that confrontation remains the one constitutional way “to challenge or verify the results.”64 Thus, it seems clear that the Court considers autopsies as a type of forensic analysis that is subject to confrontation. The Court’s embrace of the “reasonable belief” test must confirm that Crawford applies to medical examiners performing an autopsy and reporting the results in a homicide case.65

Will the Supreme Court, as a matter of policy, permit homicide prosecutions to fail where the original medical examiner is no longer available and a substitute witness can utilize only nontestimonial evidence to support an opinion? It seems unlikely, but what will the solution be? Harmless error is a fallback that may be applicable in many cases.66 The amicus brief submitted by law professors suggested a limited, conditional basis upon which a surrogate witness could testify.67 While this suggestion is characterized as a final option, requiring necessity and no alternatives, it was rejected by the majority opinion. But the brief does make suggestions as to alternatives that have a salutary effect. They encourage thorough recordkeeping of examinations, including videotaping, preservation of relevant tissue samples and blood or other anatomy, plus photos, including those with relevant measurements. In other words, virtually all of the significant evidence could be preserved by nontestimonial evidence, which would permit a surrogate to utilize the evidence and render a relevant opinion.

DUI
In DUI cases, there are two types of documents commonly admitted that have created confrontation issues. These documents are certifications or affidavits attesting to: (a) breathalyzer equipment calibration or maintenance, and (b) breathalyzer test results. Under Melendez-Diaz, the former is probably nontestimonial, while the latter is clearly testimonial.
In dicta, Justice Scalia made two specific references to breathalyzer evidence. Like autopsies, breathalyzer results are grouped among those forensic tests that may not be capable of repetition, but that nevertheless require confrontation.68 In contrast, the Court expressly states that “documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records.”69

Like the certificate of analysis condemned in Melendez-Diaz, the opinion should serve to invalidate state statutes that authorize the admission of the breathalyzer printout or a breath test affidavit in the absence of live testimony by the machine operator.70 Of course, while not definitively decided, it appears that statutes permitting proof of maintenance and calibration of breath testing equipment by affidavit will survive.71

Chain of Custody
In Melendez-Diaz, the dissent argues that the majority opinion will require the in-court testimony from every person forming a link in the chain of custody of any evidence.72 Justice Scalia responds, “[W]hile the dissent is correct that ‘[i]t is the obligation of the prosecution to establish the chain of custody, this does not mean that everyone who laid hands on the evidence must be called.”73 It is up to the prosecutor whom to call to testify as to the chain of custody. Moreover, the prosecutor’s failure to call persons who may be in the chain of custody will not defeat the admissibility of the evidence, but rather may go to its weight.

Justice Scalia emphasizes that, while not all chain of custody witnesses need be called, “what testimony is introduced must … be introduced live.”74 Therefore, unless the chain of custody is stipulated or objection is waived (which may be by operation of a “notice and demand” statute), the testimonial evidence as to chain of custody must be live, and those statutes to the contrary are, as in the case of the DUI breath test affidavits, invalid.75

Additional Applications
The characterization of clerk’s certificates attesting to the absence or nonexistence of records (commonly referred to as a “CNR”)76 as a testimonial statement may be the most significant language in Melendez-Diaz applicable outside of the forensic science arena. In a broad range of criminal cases, the government is required as an essential element to prove the absence of an official record in order to establish guilt. In many other circumstances, the prosecution seeks to prove the absence of a record as indicating guilt. In all of these cases, a live witness will now have to testify, upon timely objection by the defense, to a CNR.77

Tax Cases
In tax prosecutions, the government usually relies upon a CNR from the IRS indicating that there is no tax return on file for a particular year. This commonly occurs in cases charging a failure to file returns78 or tax evasion where an act in furtherance is the failure to file returns.79
An IRS CNR may also be used for other purposes. In United States v. Bryant,80 a RICO and CCE drug prosecution, a CNR of an IRS records custodian was admitted into evidence to prove that the defendant had not filed tax returns, circumstantially demonstrating that his “abundance of resources … must have been derived from illicit drug activity.”81

Immigration Cases
A CNR is also routinely used in immigration offense prosecutions. In an illegal re-entry after deportation case, an essential element of proof is the absence of a request by the alien for permission to re-enter the United States, known as a Form 212. The government routinely proves this fact by admission into evidence of a CNR by an official of the Bureau of Immigration and Customs Enforcement (“ICE”, formerly the INS), who certifies that, after a diligent search, no record was found indicating that the alien obtained permission to re-enter the United States.

Courts addressing Confrontation Clause challenges to the admission of a CNR have held that these documents are nontestimonial, relying substantially upon the language in Crawford finding business records to be nontestimonial.82 After Melendez-Diaz, however, the constitutional validity of admitting these CNRs, without proper in-court testimony, is in substantial doubt.

Another important certification used in immigration cases is the warrant of deportation. This document commands an immigration official to take custody of the deportee and to remove him from the United States. A signed warrant indicates that the attesting witness observed the deportee leaving the country. The government introduces the warrant to prove an element of an illegal re-entry offense, i.e., that the defendant had been deported.

Is this document testimonial? One view is “that a warrant of deportation does nothing more than testify as to the attesting witness’s declaration that the alien was deported on the date in question.”83 Several courts have addressed this issue, and all have concluded that the warrant is not “testimonial.”84 The courts have generally concluded that a warrant of deportation is not testimonial “because it [is] not made in anticipation of litigation, and because it is simply a routine, objective cataloging of an unambiguous factual matter.”85
Unlike the usual CNR or similar document, warrants of deportation are produced for the primary purpose of maintaining records concerning the movements of aliens and to ensure compliance with orders of deportation. Whether this is a legitimate reason, sufficiently unrelated to any anticipation of future prosecution, is the ultimate question. Whether, in light of Melendez-Diaz, there is cause to characterize them as testimonial remains unclear. Consequently, it is incumbent upon the defense to continue to challenge warrants of deportation by developing a record indicating their true purpose — the prosecution of those who re-enter.

Other Cases
There are a variety of other offenses in which a CNR is used to prove an element of the crime. Courts that have evaluated confrontation challenges to these types of CNRs have generally treated them as nontestimonial. Yet, under Melendez-Diaz, these holdings are now suspect, if not clearly erroneous. Such prosecutions include failure to register as a sex offender,86 operating as a contractor without a license,87 carrying a pistol without a license, and possession of an unregistered firearm.88 In other instances, CNRs are admitted to provide supporting evidence or to rebut a defense.89

There is one final category of documents that has generated conflicting opinions under Crawford — driving records. There are two general types at issue: (a) certified printouts of a defendant’s driving record, and (b) a CNR, or similar document, stating that the defendant has no record of a license or permit being issued.

The former, generally used to prove a suspension of an existing driving license, has consistently been held not to be testimonial.90 In addition, a certification or affidavit admitted to merely authenticate the driving record has similarly been deemed nontestimonial.91 However, not all courts agree with that conclusion.92 Under Melendez-Diaz, the simple driving record alone, authenticated by a certification, is probably nontestimonial. Unlike the affidavit prepared in Pacer, the record is not created in anticipation of litigation and is a routine administrative record.93

The driving record CNR presents a wholly different matter. Courts which addressed this issue prior to Melendez-Diaz also generally held the certification or affidavit to be nontestimonial.94 Recently, however, one court held that such a certification violates the defendant’s right to confrontation, citing Melendez-Diaz.95 This holding is the logical conclusion dictated by Melendez-Diaz, since the CNR establishing the absence of a driving record is fundamentally the same as a clerk’s affidavit attesting to the absence of a business (or any other type of) record.

Developments So Far
In the first few weeks following issuance of the opinion, several courts have applied the holding in Melendez-Diaz to invalidate or prohibit the admission of unconfronted forensic testing evidence. In addition to the court in Tabaka, trial and appellate courts have addressed cases involving DNA, firearms, sexual assault reports by a physician, and DUI.
In People v. Payne,96 the court ruled that the admission of a DNA report in a sexual assault case through a witness who did not perform the testing, but who had knowledge of the test and lab procedures (i.e., a lab supervisor), was error. The court expressly held that the Melendez-Diaz decision confirmed an earlier plurality opinion issued in the Lonsby case.97
In a case involving a firearms evaluation, a California intermediate appellate court found the introduction of a firearms examiner’s report was “probably” error under Melendez-Diaz.98
The court found the probable error harmless since another examiner involved in the analysis did testify and “reached the same result after similar analysis to that in [the nontestifying analyst’s] report.”99

In DUI cases in New York and Virginia, the decision has been applied to both breathalyzer test results and equipment calibration records. In Virginia, a judge in Fairfax County Circuit Court dismissed a DUI case where the evidence of intoxication was based only on a breath certificate without the testimony of the officer who performed the test.100 In New York, a trial judge refused admission of breathalyzer calibration logs, citing Melendez-Diaz; instead he required the prosecution to produce the technicians for cross-examination.101 While the Virginia decision appears correct, the New York ruling is doubtful in light of Scalia’s language in dicta construing calibration or maintenance affidavits as likely nontestimonial.
In a significant, although unfortunately unpublished, decision, the Third Circuit held that the admission of a report by a nontestifying physician who examined the minor victim of an attempted rape was error.102 The court rejected the idea that the report was a business record or record of treatment and diagnosis, noting that it was expressly prepared for potential court proceedings.103 Notably, the court also found that the admission of expert testimony by another physician, who explained or interpreted the report (as the basis for his opinion that the child was assaulted), was also error.104

Courts continue to embrace the now dubious practice of an expert reciting an analyst’s findings under the rubric that the data only provides a basis for the testifying expert’s opinion. Several courts have tried to distinguish Melendez-Diaz on the grounds that, unlike the expert parroting the findings of another analyst, Melendez-Diaz involved the admission of an affidavit alone without any sponsoring witness who could be cross-examined.105

Conclusion
The decision in Melendez-Diaz has the potential to impact a host of criminal cases beyond the drug possession case to which it was specifically directed. Like Crawford and its progeny, the outer boundaries of the “testimonial statement” definition are still being explored. Defense practitioners must keep Melendez-Diaz in mind when confronting the prosecution’s case because, after all, four years ago everyone thought drug analysis certificates were exempt from confrontation.


Notes
1. 541 U.S. 36 (2004).
2. Davis v. Washington, 547 U.S. 813 (2006).
3. Whorton v. Bockting, 549 U.S. 406 (2007) (Crawford is not retroactive).
4. Giles v. California, 128 S. Ct. 2678 (2008).
5. 129 S. Ct. 2527 (2009).
6. Briscoe v. Virginia, 2009 WL 1841615 (U.S. June 29, 2009).
7. 129 S. Ct. at 2530-31.
8. Id. at 2531.
9. Id. (citations omitted).
10. Id. at 2532.
11. Id. (citation omitted, emphasis in original).
12. Id. at 2533.
13. Id. at 2532.
14. Id. (citations omitted). Justice Scalia, like in Crawford, utilizes plain dictionary definitions to establish the nature of the documents, citing to, inter alia, Black’s Law Dictionary and the 1828 edition of Noah Webster’s Dictionary of the English Language.
15. Id.
16. Id. (citations omitted).
17. The majority opinion commonly refers to the commonwealth of Massachusetts as the “respondent.” This article shall do the same.
18. Id. at 2533.
19. 448 U.S. 56 (1980).
20. Id.
21. 129 S. Ct. at 2551-53.
22. Id. at 2533.
23. Id. at 2551-52.
24. Id. at 2533 (emphasis in original).
25. Id. at 2534 (emphasis in original, footnotes omitted).
26. Id. at 2535. Justice Scalia again examined the Sir Walter Raleigh case in determining that ex parte evidence, of the sort used in that case and in the Melendez-Diaz case, is the “paradigmatic confrontation violation.” Id. at 2534.
27. 547 U.S. 813 (2006).
28. 129 S. Ct. at 2535.
29. Id. (emphasis in original, citations omitted).
30. 129 S. Ct. at 2536. One might consider this the “CSI” point, referring to the TV show where the forensic lab analysts always consider themselves scientists first, and whose work is therefore neutral and reliable.
31. Id.
32. Id. Justice Scalia also notes that certain analyses are not susceptible to repetition, “such as autopsies and breathalyzer tests,” but he nevertheless includes them as forensic tests for which confrontation is required. Id., n.5. These specific topics are addressed infra.
33. Id. at 2536. The Innocence Project has documented several instances of forensic science crime fraud, referred to in the Melendez-Diaz opinion, including crime labs in West Virginia, Houston, and Chicago. See “Forensic Science Misconduct,” available at http://www.innocenceproject.org/understand/Forensic-Science-Misconduct.php.
34. Id. at 2537. He states, however, that he would still find confrontation required even “if all analysts always possessed the scientific acumen of Mme. Curie and the veracity of Mother Teresa.” Id., n. 6.
35. Id. at 2538 (citations omitted).
36. Id. at 2539-40.
37. Id. at 2539. The authentication affidavit would not be testimonial because it provides no actual evidence against a defendant, rather it only serves to authenticate a document that itself must be independently admissible (as for example, a business record) and that would in turn provide the substantive evidence.
38. Chicken Little is an old fable about a chicken who believes the sky is falling. The phrase “the sky is falling” has passed into the English language as a common idiom indicating a hysterical or mistaken belief that disaster is imminent.
39. 129 S. Ct. at 2550.
40. Id. at 2540-41. The Court also observes that 95 percent of all criminal cases end in a guilty plea and that lawyers frequently stipulate to lab reports, rejecting the dissent’s “back of the envelope” statistics. Id. at 2540, n. 10. The Court also posits that defense lawyers will continue to stipulate to lab analysis results on the basis that the live presentation of such evidence can help to validate a prosecution and that the results of testing rarely are relevant to the defense case. While this may be true as a general rule, it is inconceivable that a competent defense counsel will stipulate where the prosecution’s ability to procure the presence of the analyst is difficult or costly. Under such circumstances, the defense should seek a quid pro quo for a stipulation, such as a corresponding stipulation to defense evidence.
41. See, e.g., Md. Code Ann., Cts. & Jud. Proc. § 10-306(b) (1) (ii) (West 2008) (“[I]f the state decides to offer the test results without [live testimony], it shall, at least 30 days before trial, notify the defendant. …”). Del. Code Ann. tit. 10, § 4332(a)(1) (2008) (requiring written demand filed by the defense “at least five days prior to the trial”). The prosecution must also give the defense a copy of the certificate. See, e.g., Mich. Comp. Laws §600.2167(3) (2008) (requiring the prosecutor to provide a copy of the forensic report to the defense no fewer than five days prior to a preliminary examination). Several states already have enacted procedures like this. Delaware, supra; Illinois, 725 Ill. Comp. Stat. 5/115-15 (2008); Iowa, Iowa Code § 691.2 (2008); Maryland, supra; Michigan, supra; Nevada, Nev. Rev. Stat. §§ 50.315, 50.320, 50.325 (2007); Ohio, Ohio Rev. Code Ann. § 2925.51 (West 2008); Oklahoma, Okla. Sta. Ann. tit. 22, § 751.1(B) (2008); Texas, Tex. Code Crim. Proc. Ann. art. 38.41 (Vernon 2007); and Washington, Wash. St. Super. Ct. Cr. 6.13 (2008).
42. 129 S. Ct. at 2557.
43. Id. This may explain the grant of certiorari in Briscoe, supra endnote 6, in which the issue of the validity of a notice and demand statute is presented. The grant of certiorari in Briscoe has been cause for speculation by commentators, with some suggesting that the dissenters hope to use the case to limit the holding in Melendez-Diaz when a member of the majority, Justice Souter, is replaced. Others suggest it will provide an opportunity for the Court to articulate permissive limits on the requirements that may be written into such statutes.
44. Id. at 2541 (citations omitted).
45. Id.
46. Pamela Metzger, Cheating the Constitution, 59 Vand. L. Rev. 475, 531 (2006).
47. The summary disposition, referred to as a ”GVR,” is an opinion in which the Court grants certiorari (G), vacates the decision below (V) and remands the case for reconsideration (R) in light of a recent decision, in this case, Melendez-Diaz.
48. Crager v. Ohio, —- S.Ct. ——, 2009 WL 1841607, *1 (U.S. June 29, 2009) (“The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the Supreme Court of Ohio for further consideration in light of Melendez-Diaz v. Massachusetts, 557 U.S. ___ (2009)”).
49. Morales v. Massachusetts, —- S. Ct. ——, 2009 WL 1841613, *1 (U.S. June 29, 2009) (same). The Court also issued several GVR orders in cases involving lab analyses of controlled substances. Courts have also applied the same reasoning in fingerprint cases. See, e.g., People v. Rawlins, 10 N.Y.3d 136, 157, 884 N.E.2d 1019, 1033-35 (2008) (latent “fingerprint reports, offered to prove an essential element of the crimes charged, could be nothing but testimonial … [They] fit the classic definition of ‘a weaker substitute for live testimony’ at trial”).
50. Barba v. California, —- S. Ct. ——, 2009 WL 1841609, *1 (U.S. June 29, 2009).
51. People v. Barba, 2007 WL 4125230, *7 (Cal. App. Nov. 21, 2007) (unpublished) (The court held that the DNA test results like those at issue here were nontestimonial and that testimony by a lab director about the test results did not violate a defendant’s confrontation rights).
52. See generally Steven Yermish, Crawford v. Washington and Expert Testimony: Limiting the Use of Testimonial Hearsay, The Champion, November 2006 at 12.
53. See, e.g., Moreno Denoso v. State, 156 S.W.3d 166 (Tex. Crim. App. 2005) (holding that an autopsy report is nontestimonial and properly admitted as a business record).
54. See, e.g., People v. Thomas, 130 Cal.App.4th 1202, 1210, 30 Cal.Rptr.3d 582, 587 (4th Dist. 2005) (“Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions. This is so because an expert is subject to cross-examination about his or her opinions and additionally, the materials on which the expert bases his or her opinion are not elicited for the truth of their contents; they are examined to assess the weight of the expert’s opinion.”); State v. Bunn, 619 S.E.2d 918, 920 (N.C. App. 2005) (forensic drug expert’s testimony that substance was cocaine, which was based on analyses conducted by another analyst, does not 006) (similar), State v. Craig, 110 Ohio St.3d 306, 853 N.E.2d 621 (2006) (holding that autopsy reports are admissible as business records even in light of Crawford).
61. This is the case in Florida. F.S.A. §406.02 (creating the Medical Examiners Commission “within the Department of Law Enforcement”). In Kentucky, the organization of the state cabinet places the Office of the Kentucky Medical Examiner within the Justice and Public Safety cabinet. K.R.S. 12.020.
62. See, e.g., Ala. Code § 45-2-61.04; Iowa Code § 691.6; Miss. Code Ann. § 41-61-63; Va. Code Ann. § 52-11.1.
63. See, e.g., F.S.A. §406.13 (when the cause of death has been established within reasonable medical certainty by the district medical examiner or her or his associate, she or he shall so report or make available to the state attorney, in writing, her or his determination as to the cause of said death); M.S.A. §390.251 (“The coroner or medical examiner may, when requested, make physical examinations and tests incident to any matter of a criminal nature under consideration by the district court or county attorney, law enforcement agency, or publicly appointed criminal defense counsel, and shall deliver a copy of a report of such tests and examinations to the person making the request”.).
64. 129 S. Ct. at 2536, n. 5 and accompanying text.
65. See, e.g., State v. Johnson, 756 N.W.2d 883, 888-89 (Minn. App. 2008) (An autopsy report is testimonial in nature, and therefore implicates a defendant’s right to confrontation under Crawford v. Washington.); State v. Weaver, 733 N.W.2d 793 (Minn. App. 2007) (laboratory test results obtained from a hospital toxicology department at the request of the medical examiner during a homicide investigation, and after manner of death (homicide) had been preliminarily determined and the defendant was arrested, are testimonial; their admission through the medical examiner in support of her opinion as to the cause of death violated the defendant’s right to confrontation).
66. In Melendez-Diaz, the Court remanded the case, holding out the possibility that the error was harmless. 129 S. Ct. at 2542, n. 14 (“We of course express no view as to whether the error was harmless.”).
67. Brief of Law Professors as Amici Curiae in Support of Petitioner, 2008 WL 2521264, *20-25 (Jun. 23, 2008).
68. 129 S. Ct. at 2536, n.5. See also State v. Belvin, 986 So.2d 516 (Fla. 2008) (breath test affidavit prepared by nontestifying breath test technician constituted testimonial hearsay for purposes of confrontation clause).
69. 129 S. Ct. at 2532, n.1. See also State v. Dukes, 38 Kan. App. 2d 958, 961, 174 P.3d 914, 916 (2008) (noting at least 14 other jurisdictions have found equipment maintenance affidavits to be nontestimonial). But see, e.g., Shiver v. State, 900 So.2d 615, 618 (Fla. App. 2005) (affidavit of maintenance of breath-test instrument was testimonial because “the only reason the affidavit was prepared was for admission at trial”).
70. See, e.g., Ala. Code § 12-21-300 (in any criminal case, or juvenile or family court case that is of a criminal nature, the prosecuting authority may offer a certificate of analysis … in lieu of direct testimony); Va. St. §18.2-268.9 (2008) (“Any individual conducting a breath test … shall issue a certificate. … [T]his certificate, when attested by the individual conducting the breath test, shall be admissible in any court in any criminal or civil proceeding as evidence of the facts therein stated and of the results of such analysis”.).
71. See, e.g., Idaho Code § 18-8002A (2009) (“Notwithstanding any other provision of law or rule of court, the results of any test for alcohol concentration and records relating to calibration, approval, certification or quality control performed by a laboratory operated and approved by the Idaho state police or by any other method approved by the Idaho state police shall be admissible in any proceeding in this state without the necessity of producing a witness to establish the reliability of the testing procedure for examination.”).
72. 129 S. Ct. at 2546.
73. Id. at 2532, n.1.
74. Id.
75. See, e.g., La. Rev. Stat. Ann. 15-500 (“In all criminal cases, … the courts of this state shall receive as evidence any certificate … as prima facie proof of proper custody of the physical evidence listed thereon from time of delivery of said evidence to the facility until its removal therefrom.”). Several states have already adopted this position based upon Crawford. See, e.g., State v. Renshaw, 390 N.J.Super. 456, 915 A.2d 1081 (App. Div. 2007) (statutory chain of custody certificate prepared by nurse for blood drawn for criminal prosecution will not be admissible in the absence of unavailability and a prior opportunity to cross-examine); City of Las Vegas v. Walsh, 121 Nev. 899, 124 P.3d 203, 207-08 (2005) (affidavits of nurses on blood draws are testimonial), cert. denied, 547 U.S. 1071 (2006).
76. While a CNR is typically prepared by a clerk, any certification or affidavit attesting to the absence of a record should be covered. In this article, the term CNR will be used to refer to any negative affidavit or certification.
77. This is hardly a new concept. Prior to the Evidence Code, several cases at common law recognized a confrontation right when it came to negative certifications by records custodians. See, e.g., United States v. Bass, 64 F.2d 467, 470 (7th Cir. 1933) (proof that something is not to be found in the records may not be made by a mere certificate of the custodian, but must be shown by testimony with opportunity to cross-examine); United States v. Bukis, 17 F. Supp. 77, 78 (E.D. Pa. 1936) (proof that something is not to be found in the records may not be made by a mere certificate of the custodian, but is a matter of fact which must be shown by the testimony of a person who has searched the records, with an opportunity to cross-examine).
78. 26 U.S.C. § 7203.
79. 26 U.S.C. § 7201.
80. 2006 WL 1700107 (W.D. Va. June 15, 2006).
81. Id. at *3.
82. See, e.g., United States v. Urqhart, 469 F.3d 745, 748-49 (8th Cir. 2006) (citing United States v. Cervantes-Flores, 421 U.S. 825 (9th Cir. 2005), cert. denied, 547 U.S. 1114 (2006)); United States v. Earle, 488 F.3d 537 (1st Cir. 2007).
83. United States v. Torres-Villalobos, 487 F.3d 607, 612 (8th Cir. 2007).
84. See, e.g., Torres-Villalobos, supra endnote 83; United States v. Valdez-Maltos, 443 F.3d 910 (5th Cir.) (per curiam), cert. denied, 127 S. Ct. 265 (2006); United States v. Bahena-Cardenas, 411 F.3d 1067 (9th Cir. 2005), cert. denied, 547 U.S. 1056 (2006); United States v. Cantellano, 430 F.3d 1142 (11th Cir. 2005), cert. denied, 547 U.S. 1034 (2006).
85. Bahena-Cardenas, 411 F.3d at 1075. See also United States v. Cantellano, 430 F.3d at 1145.
86. Dickens v. Commonwealth, 52 Va. App. 412, 663 S.E.2d 548, 551-52 (2008).
87. Washington v. State, 2009 WL 1531664 (Fla. App. June 3, 2009) (certification from state construction licensing board indicating absence of license); Terranova v. State, 474 So.2d 1206 (Fla. App. 1985) (same).
88. Millard v. United States, 967 A.2d 155 (D.C. 2009) (certification of no record for license to carry pistol and no record of registered firearm not testimonial); United States v. Giambro, 544 F.3d 26 (1st Cir. 2008) (CNR from ATF records custodian concerning lack of firearm ownership registration).
89. See, e.g., United States v. Martinez, 700 F.2d 1358 (11th Cir. 1983) (trial court properly admitted certificate from General Commander of Honduran Navy stating that, after diligent, search, the vessel in which marijuana was found was not registered in Honduras, and that the registration presented by the captain was not a valid registration); United States v. Wilson, 732 F.2d 404 (5th Cir. 1984) (admission of affidavit from high CIA official indicating that he authorized a search of agency records and such search indicated an absence of any record of defendant working for agency); Michels v. Commonwealth, 47 Va. App. 461, 624 S.E.2d 675 (2006) (certification by Delaware secretary of state indicating no registration of trust company).
90. See, e.g., State v. Tayman, 960 A.2d 1151 (Me. 2008) (driving records are akin to business or public records, and such documents merely reflect the routine cataloging of administrative events; these entries do not implicate the core Confrontation Clause concerns addressed by Crawford); State v. Dukes, 38 Kan. App. 2d 958, 174 P.3d 914, 918 (2008) (holding that the introduction in evidence of driving records does not offend because the records are maintained pursuant to state law and reflect ministerial duties unrelated to criminal prosecution); Jasper v. Commonwealth, 49 Va. App. 749, 644 S.E.2d 406, 410-11 (2007) (concluding that a DMV transcript offered to prove revocation and notice of revocation was nontestimonial because the document established only the existence of objective facts, was not accusatory, and was prepared in a nonadversarial setting); State v. King, 213 Ariz. 632, 146 P.3d 1274, 1280 (Ct. App. 2006) (holding that driving records are nontestimonial because they are “akin to business records, and are prepared and maintained regardless of their possible use in a criminal prosecution”).
91. See, e.g., Tayman, supra endnote 90.
92. See, e.g., People v. Pacer, 6 N.Y.3d 504, 510-11, 814 N.Y.S.2d 575, 578, 847 N.E.2d 1149, 1152 (2006) (holding that the introduction in evidence of an affidavit prepared by an official of the Department of Motor Vehicles describing the department’s license revocation and mailing procedures violated the Confrontation Clause; the affidavit was a “direct accusation of an essential element of the crime” and that the affiant was “the closest the People come to having a ‘witness’ to prove that defendant knew or should have known of the revocation”).
93. But see State v. Shipley, 757 N.W.2d 228, 237 (Iowa 2008) (rejecting confrontation challenge to the admission of a summary of defendant’s pre-existing driving record, which a state official created after the initiation of prosecution).
94. State v. Kirkpatrick, 160 Wash. 2d 873, 161 P.3d 990 (Wash. 2007) (certified letter from Department of Transportation attesting that no driver’s license had been issued is nontestimonial).
95. Tabaka v. District of Columbia, 2009 WL 2044053, *1 (D.C. App. July 16, 2009) (reversing a conviction for driving without a valid permit where a certificate from D.C. DMV verifying that there was no evidence of an operator’s permit having been issued to the defendant violated the Sixth Amendment).
96. ____N.W.2d ___, 2009 WL 2253287 (Mich. App. July 28, 2009).
97. Id. (citing People v. Lonsby, 268 Mich. App. 375, 707 N.W.2d 610 (2005)). Cf. People v. Frey, 2009 WL 2244521 (Mich. App. July 28, 2009) (where expert testified that she was present with the forensic analyst who performed the DNA testing while it was being done and thereafter reviewed the data with the analyst, admission of her testimony regarding the results and her opinion thereon was not error).
98. People v. Quezada, 2009 WL 2277157, *8 (Cal. App. July 30, 2009) (unpublished).
99. Id.
100. High Court Ruling Voids DWI Case in Fairfax County, Wash. Post (July 18, 2009), available at http://www.washingtonpost.com/wp-dyn/content/article/2009/07/17/AR2009071703478.html.
101. Citing ‘Melendez-Diaz,’ Judge Call Technicians to Testify in Person, 8/7/2009 N.Y.L.J. 1 (col 3).
102. Government of Virgin Islands v. Vicars, 2009 WL 2414378 (3d Cir. August 7, 2009) (unpublished).
103. Id., *5.
104. Id.
105. See, e.g., Larkin v. Yates, 2009 WL 2049991, *1 (C.D. Cal. July 9, 2009) (unpublished) (approving a DNA lab supervisor testifying about the results of tests done in her lab by another analyst because, she did not “simply read the reports into evidence”); People v. Rutterschmidt, ____ Cal Rptr.3d ___, 2009 WL 2506333 (Cal App. August 18, 2009) (evidence of toxicology testing admitted through prosecution expert who did not perform the tests, but who “peer reviewed” them, was properly admitted because the report itself was not admitted, rather the testifying expert was only expressing an opinion, subject to cross-examination, in reliance upon the opinion of another expert).


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