Supreme Court Watch: Supreme Court Confrontation Clause Oral Argument

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).

Today the Supreme Court hears argument on a significant Confrontation Clause case that will further illuminate the boundaries of what constitutes a “testimonial” statement under Crawford v. Washington, 541 U.S. 36 (2004); The case of Luis E. Melendez-Diaz v. Massachusetts (No. 07–591) involves a state court drug conviction, which will likely have a broad reach and impact a wide variety of forensics issues. The central issue presented in Melendez-Diaz is whether drug analysis certificates used at trial as proof that the defendant was trafficking drugs are “testimonial” within the meaning of Crawford?

Significance of Melendez-Diaz

The specific issue presented 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).”

As previously posted, petitioner Melendez-Diaz was charged with cocaine trafficking after officers observed what appeared to be a drug transaction. At trial, the state prosecutor introduced some bags of cocaine seized in the case. The prosecutor also introduced a forensic lab reports prepared by a lab technician who identified the powder in the bags as cocaine. The prosecutor did not call a forensic examiner and used a state procedural law which permitted the admission of extrajudicial certificates declaring under oath that the substance in the bags contained cocaine. Commonwealth v. Luis E. Melendez-Diaz: Memorandum and Order Pursuant to Rule 1:28, No. 05-P-1213 (Mass App. July 31, 2007).

The Exhibit In Question

For example, one of the notarized drug analysis certificates in the case provided, in part:

[State’s Exhibit 11]
State Laboratory Institute
Date Received: 11/19/2001
Date Analyzed: 11/28/2001

I hereby certify that the substance Contained in 2 plastic bags Marked: 615743
Submitted by P.O. Frank Mcdonough of the Boston Police Dept.
Has been examined with the following results:

The substance was found to contain:
Cocaine, a derivative of Coca leaves, as defined in Chapter 94 C, Controlled Substance Act, Section 31, Class B.

Net Weight: 2.34 Grams
Defendant: Montero, Elis A. Et Al

Assistant Analysts Della Saunders Michael Lawler
Sworn and subscribed to before me on this day, 12-04-01. I know the subscribers to be assistant analysis of the Massachusetts Department of Public Health.

On appeal following his state court conviction, the petitioner contended that his Confrontation Clause rights were violated by the introduction of the crime lab reports as he was not allowed an opportunity to cross-examine the expert who prepared the drug analysis certificates. The state conviction was affirmed on appeal.

Issues Raised In Melendez-Diaz

On writ of certiorari to the Appeals Court of Massachusetts, the case presents a host of constitutional and other criminal justice and legal questions:

  • The central issue presented is whether the drug analysis certificates are “testimonial” within the meaning of Crawford and its progeny? The answer to this question will affect forensics examinations and other examinations across the country. It will also shed light on the still unsettled meaning of “testimonial” statements under the Confrontation Clause.
  • The petitioner notes a pervasive state practice of forensic hearsay reports: “Forty-four states and the District of Columbia have hearsay exceptions permitting courts to admit forensic examiners’ certified reports to establish the identity of controlled substances. Numerous states also allow the admission of forensic certificates as hearsay evidence to proffer “the results of DNA tests, microscopic hair analyses, fingerprint identifications, coroners’ reports, ballistics tests, and a wide range of other tests conducted by a crime laboratory.” See Petition For A Writ Of Certiorari, at 15 (citing Metzger, Cheating the Constitution, 59 Vand. L. Rev. 475, 478 & n.9, 479 & n.12 (2006)).
  • Are the drug analysis certificates tantamount to a business record, as the state argues, or an official record, as the state, Solicitor General and state attorneys general argue? Under this analysis, the certificates would not be testimonial. See Respondent’s Brief on the Merits; Brief for the United States as Amicus Curiae Supporting Respondent; Brief of the 35 States and the District of Columbia as Amici Curiae in Support of Respondent.
  • If the business and official records arguments are inapplicable, do the certificates bear the testimonial attributes that were intended to be within the scope of the Confrontation Clause, as construed under Crawford and its progeny? The petitioner and another amici in support of the petitioner note that the certificates are prepared Forensic laboratory reports like the ones in this case are testimonial because they are prepared in anticipation for prosecution. See Petitioner’s Brief on the Merits; Brief Of Professor Richard D. Friedman, As Amicus Curiae In Support Of Petitioner.
  • If the forensic examiner must testify and be subject to cross examination, what will be the impact on the administration of justice? The National District Attorneys Association notes that a significant burden would be imposed if self-authenticating public records could no longer be admitted. The burden would include further delay and increased costs in the criminal justice process. See Brief of the NDAA and other Prosecuting Attorneys as Amici Curiae. According to the state attorneys general, in 2006 nearly 2 million substances were analyzed, with a trend for increasing forensic analysis. Brief of the 35 States and the District of Columbia as Amici Curiae in Support of Respondent.
  • The petitioner and amici in support of the petitioner contend that the opportunity to cross-examine the expert witness is an essential safeguard to ensure accuracy in the forensic examination process. Past errors in the forensics process are noted, including deficiencies which were exposed by an inspector general investigations concerning some labs. The amici also question the burden on the criminal justice system resulting from cross-examination. See Petitioner’s Brief on the Merits; Brief of Amicus Curiae National Innocence Network in Support of Petitioner; Brief of National Association of Criminal Defense Lawyers, National Association of Federal Defenders, National College for DUI Defense as Amici Curiae in Support of Petitioner; Brief Of Law Professors As Amici Curiae In Support Of Petitioner.
  • The respondent, and the Solicitor General in support of the respondent, note that apart from cross-examination, there are other opportunities to test the accuracy of forensic results. The state notice and demand statutes require that the defense receive the lab certification and normally provide an opportunity to subpoena the examiner. As the Solicitor General Amicus Brief, at 32 (citations omitted), notes: “A defense attorney’s failure to make a demand constitutes a valid waiver of the defendant’s confrontation rights, at least so long as the defendant receives adequate notice that a failure to demand the witness’s testimony will waive confrontation rights…. Notice-and-demand statutes that require counsel to decide before trial whether to confront and cross-examine a laboratory witness, and provide counsel the opportunity to review the written record of the scientific evidence that the government proposes to present at trial in lieu of that witness’s testimony, are reasonable state procedural rules for the exercise of a constitutional right.” See Respondent’s Brief on the Merits; Brief for the United States as Amicus Curiae Supporting Respondent

Oral Argument - Monday, November 10

According to the hearing calendar, Associate Stanford Law Professor Jeffrey L. Fisher, who argued the Crawford case before the Supreme Court case, will argue on behalf of the petitioner. Massachusetts Attorney General Martha Coakley will argue for the respondent. Lisa H. Schertler, Assistant to the Solicitor General, will argue for the United States as amicus curiae.

In Crawford, the Supreme Court explicitly recognized that by leaving “for another day any effort to spell out a comprehensive definition of ‘testimonial’,” the consequence would be “interim uncertainty.” Crawford, 541 U.S. at 68 n.10. Some of the pending “uncertainty” is expected to be filled by this consideration of Menendez-Diaz. The impact of the Melendez-Diaz will reach beyond the drug laboratory and shed light on what proof will be required for forensic and similar examinations.

Federal Rules of Evidence