Federal Evidence Review

Melendez-Diaz v. Massachusetts: Can forensic reports be used in lieu of forensic examiner testimony?

With the close of the current Term, Supreme Court briefing has started on cases that address further implications of the Court’s 2004 revamping of the standards applied under the Sixth Amendment Confrontation Clause as announced in Crawford v. Washington. Recently, the petitioner in Melendez-Diaz v. Massachusetts (No. 07-591) filed his brief on the question identified in the Court’s grant of certiorari review: "Whether a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is ‘testimonial’ evidence subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004)." Petitioner’s Brief on the Merits, at i.

Petitioner Melendez-Diaz was tried for cocaine trafficking in state court, after officers observed what appeared to be a drug transaction. The prosecutor introduced some bags of cocaine seized in the case. The court also admitted a forensic lab report prepared by a lab technician who identified the power in the bags as cocaine. The prosecutor did not place a forensic examiner on the stand and under state procedural law introduced extrajudicial certificates declaring under oath that the substance in the bags contained cocaine.

The petitioner was convicted and on appeal he argued that the crime lab reports could not be used as evidence without an opportunity to cross-examine the expert who prepared them. Absent this, the petitioner argued his Confrontation Clause right had been violated by admitting testimonial hearsay without him having the opportunity to cross-examine the declarant. According to the petitioner: “Forensic reports are an integral part of a large number of criminal prosecutions. Exempting them from the rigors of the adversarial process poses a significant threat of wrongful convictions.” Petitioner’s Brief For Certiorari, at p.9.

The state responded to this argument, arguing: "Only a handful of courts have adopted the bright-line rule urged by Petitioner, which would render testimonial – and, thus, subject to the Confrontation Clause – all laboratory reports prepared for use at trial." The result of such a rule would be to "impose enormous burdens in countless criminal cases by needlessly requiring live testimony from laboratory technicians who are unlikely to have any independent recollection of one – out of the thousands – of tests they routinely perform." Opposition to Certiorari, at p. 2.

In seeking certiorari review, the parties cited two cases decided by the Seventh Circuit involving the admissibility of forensic laboratory reports: United States v. Ellis, 460 F.3d 920 (7th Cir. 2006) (police-directed blood test in forensic report admitted as to presence of methamphetamine); United States v. Moon, 512 F.3d 359 (7th Cir. 2008) (forensic drug lab reports testimonial but also admissible).

The Court in Crawford expressly left "for another day any effort to spell out a comprehensive definition of ‘testimonial’," even recognizing that "our refusal to articulate a comprehensive definition in this case will cause interim uncertainty." 541 U.S. at 68 n.10. Melendez-Diaz may provide further guidance on the meaning of "testimonial" statements.

For more information on the Melendez-Diaz v. Massachusetts case, see the Melendez-Diaz Resource Page, which includes links to the briefs and will monitor the development of this Confrontation Clause case.