Supreme Court Watch: The Supreme Court’s Oral Argument In Melendez-Diaz

Case provides an opportunity to explain the contours of “testimonial” statements under the Confrontation Clause, in Luis E. Melendez-Diaz v. Massachusetts, (No. 07–591)

On Monday, November 10, 2008, the Supreme Court heard the oral argument on the Confrontation Clause case of Luis E. Melendez-Diaz v. Massachusetts (No. 07–591). As noted on Monday, the case presents an opportunity for the Court to provide further guidance on what constitutes “testimonial” and non-testimonial evidence under the Confrontation Clause. The issue under review is: “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).” The transcript of the argument highlights some of the key issues in the case.

The following initial observations are raised:

  • Is the forensic analyst’s laboratory report non-testimonial since it is similar to business records (or shop-book rule) or official records? See, e.g., Luis E. Melendez-Diaz v. Massachusetts, Transcript at 35-36, 43 (Nov. 10, 2008). Petitioner’s counsel, Associate Stanford Law Professor Jeffrey L. Fisher, who also argued the landmark Crawford v. Washington case, contended that since the drug analysis certificates were prepared in anticipation of litigation, they could not be business records. Id. at 11:8-12, 18:13-21, 26:12-15 (Nov. 10, 2008). Assistant to the Solicitor General Lisa H. Schertler, arguing as amicus curiae in support of respondent, analogized the drug analysis certificate to a public records search certification indicating whether certain public records were or were not found. Id. at 49:10-18, 54:15-19.
  • Does the forensic analyst’s laboratory report have “testimonial” attributes? For example, are the drug analysis certificates testimonial since they were prepared in anticipation of trial and reporting on facts considered in a criminal trial?
  • Part of the argument considered the role of the forensic analyst in merely reporting the results of a machine-generated test more broadly interpreting and explaining the test result to the jury. See, e.g., Luis E. Melendez-Diaz v. Massachusetts, Transcript at 37, 56, 58 (Nov. 10, 2008). Petitioner’s counsel noted that machine-generated results would not require cross-examination but interpretation about the results would. Id. at 58:12-18.
  • The Justices recognized that the anticipated case holding extended beyond a drug forensic analyst and could cover other forensic reports, including for DNA, blood tests, ballistics tests, and other forensic examinations. Luis E. Melendez-Diaz v. Massachusetts, Transcript at 24-25, 56:4-6 (Nov. 10, 2008).
  • To what extent can a supervisor overseeing forensic analysis testify instead of the analyst performing the examination, as Chief Justice Roberts asked. Luis E. Melendez-Diaz v. Massachusetts, Transcript at 4:3-8 (Nov. 10, 2008). Petitioner’s counsel noted that a supervisor could testify about their reliance on the data but could not “relay somebody else’s conclusion to the jury.” Id. at 28:13-14.
  • Can some form of notice-and-demand statute satisfy the Confrontation Clause? Those statutes require the defense to review a witness report before trial and demand the presence of the witness at trial. The argument noted that there were different varieties of these statutes. See Luis E. Melendez-Diaz v. Massachusetts, Transcript at 9, 13-14, 20:17-19, 46-47, (Nov. 10, 2008). Respondent’s counsel, Massachusetts Attorney General Martha Coakley, argued “that Massachusetts' statute is the functional equivalent of a notice-and-demand statute and complies with whatever concerns the Court may have about the right to confrontation.” Id. at 47:6-10.
  • Does a solution lay in the different implications of the Confrontation Clause when contrasted with the Compulsory Process Clause? Petitioner’s counsel distinguished between the Compulsory Process Clause, which provides the right to subpoena witnesses, and the Confrontation Clause, which he described as “a passive right in the defendant’s hands” to cross-examine government witnesses. Luis E. Melendez-Diaz v. Massachusetts, Transcript at 8:3 (Nov. 10, 2008). He opposed “any attempt to shift the burden on the defense to call witnesses like” the forensic analyst. Id. at 8:24-25.
  • The Justices queried about the burden that would be imposed on the criminal justice system by requiring forensic analysts to testify. See, e.g., Luis E. Melendez-Diaz v. Massachusetts, Transcript at 22 (Nov. 10, 2008) (“This -- this is a very, very substantial burden if we tell every State in the country that every -- in every drug case you are -- the State must produce the expert.”) (Kennedy, J.). Respondent’s counsel argued an undue burden would be imposed and “misdemeanor drug prosecutions would essentially grind to a halt.” Id. at 44:25, 45:12-14. Assistant to the Solicitor General Lisa H. Schertler noted a significant increase resulted in court appearances and delays in obtaining test results in the District of Columbia after drug chemists were required to testify. Id. at 57:12-21. Petitioner’s counsel doubted that a substantial burden would be imposed based on the practice in states requiring testimony.
  • Justice Breyer asked whether cross-examination was necessary to ensure the reliability of the test results given reports of problems in some labs. Luis E. Melendez-Diaz v. Massachusetts, Transcript at 39-40 (Nov. 10, 2008)
  • Highlighting different constitutional philosophical differences, there was disagreement among the Justices on what role the historical application of the business and official record exceptions should play in deciding the case. Justice Breyer was not interested in the history of the rule as he was in finding a “workable rule.” Luis E. Melendez-Diaz v. Massachusetts, Transcript at 17:15 (Nov. 10, 2008). In contrast, Justice Scalia countered that he was “interested in the history since that's what the Court held in Crawford, that the content of the Confrontation Clause is not what we would like it to be, but what it historically was when it was enshrined in the Constitution.” Id. at 23:5-10.

Given the line of questions, it will be interesting to see what decision is issued and who will be in the majority. The opinion, expected by the end of the Court Term, will provide further guidance on the meaning of “testimonial” and non-testimonial testimony in general, and the admissibility of forensic examination reports in particular.

Federal Rules of Evidence
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