Supreme Court Watch: Initial Questions Raised By The Melendez-Diaz Confrontation Clause Opinion

Last week’s 5 to 4 ruling highlights several questions concerning the application of the Confrontation Clause after Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527 (2009) (No. 07–591)

As noted previously last week the U.S. Supreme Court issued its most recent Confrontation Clause ruling. The divided Court held that “affidavits reporting the results of forensic analysis which showed that material seized by the police and connected to the defendant was cocaine” are “‘testimonial,’ rendering the affiants ‘witnesses’ subject to the defendant’s right of confrontation under the Sixth Amendment.” Melendez-Diaz, 557 U. S. at __. Preliminary review of the opinion underscores several questions concerning the application of the Confrontation Clause.

Q1: Confrontation and chain of custody and authentication witnesses.

While the decision certainly applies to a host of forensic analysis, the dissent warned that the majority opinion will require the testimony of routine witnesses to establish chain of custody or authenticate a document. Justice Kennedy, in dissent, noted: “The defense bar today gains the formidable power to require the government to transport the analyst to the courtroom at the time of trial.” Melendez-Diaz, 557 U. S. at __ (Kennedy, J., dissenting). The majority disagreed but did not offer much guidance. In a footnote, the majority addressed the concern posed by the dissent:

“Contrary to the dissent’s suggestion, post, at 3–4, 7 (opinion of KENNEDY, J.), we do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case. While the dissent is correct that ‘[i]t is the obligation of the prosecution to establish the chain of custody,’ post, at 7, this does not mean that everyone who laid hands on the evidence must be called. As stated in the dissent’s own quotation, ibid., from United States v. Lott, 854 F. 2d 244, 250 (CA7 1988), ‘gaps in the chain [of custody] normally go to the weight of the evidence rather than its admissibility.’ It is up to the prosecution to decide what steps in the chain of custody are so crucial as to require evidence; but what testimony is introduced must (if the defendant objects) be introduced live. Additionally, documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records. See infra, at 15–16, 18.” Melendez-Diaz, 557 U. S. at __ n.1.

Of course, the parties may stipulate to chain of custody and authentication issues. The defendant may waive the constitutional issue by failing to object. See Melendez-Diaz, 557 U. S. at __ n.3 (noting “[t]he right to confrontation may, of course, be waived, including by failure to object to the offending evidence”). However, the opinion provides new support for requiring the testimony from chain of custody and authentication witnesses.

Q2: Peer review, forensic experts.

One question that came up during oral argument, and remains after the ruling, is the application of the ruling to peer review witnesses. It is common for a supervisor or peer to review a forensic examination, as part of a quality control process. The reviewer often does not conduct the specific analysis or testing.

During oral argument, Chief Justice Roberts asked whether a supervisor overseeing forensic analysis could testify instead of the analyst performing the examination. Luis E. Melendez-Diaz v. Massachusetts, Transcript at 4:3-8 (Nov. 10, 2008) (“I suppose it doesn't have to be the analyst but whoever they decide to call. So if you had a supervisor who runs the cocaine testing lab and he is the one whose report is submitted, I take it he is the one who would have to show up.”). 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.

For two recent cases considering this issue before Melendez-Diaz, see United States v. Richardson, 537 F.3d 951, 960 (8th Cir. 2008) (peer review expert’s testimony confirming a match of the defendant’s DNA and the DNA found on the firearm did not violate the Confrontation Clause since the expert testified and was cross-examined about her conclusions; “Although she did not actually perform the tests, she had an independent responsibility to do the peer review. Her testimony concerned her independent conclusions derived from another scientist’s tests results and did not violate the Confrontation Clause.”) (citing United States v. Moon, 512 F.3d 359, 362 (7th Cir. 2008) (holding the reviewing scientist “was entitled to analyze the data that [the first scientist] had obtained”; noting “the Sixth Amendment does not demand that a chemist or other testifying expert have done the lab work himself”)).

Q3: What is the impact of the ruling on the criminal justice cases? Is the sky falling?

The majority and dissent disputed the impact of the ruling on criminal justice cases. The dissent worried about the ramifications on state and federal cases. For example, the dissent noted that the FBI laboratory conducts more than one million forensic tests each year. Justice Kennedy noted, “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.” Melendez-Diaz, 557 U. S. at __ (Kennedy, J., dissenting).

The majority responded to the dissent concerns:

“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, [Brief for Law Professors as Amici Curiae] id., at 13–15 (cataloging such state laws). 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.”
Melendez-Diaz, 557 U. S. at __ (footnote omitted).


The majority did not accept the “back-of-the-envelope” statistics offered by the defense: “The dissent provides some back-of-the-envelope calculations regarding the number of court appearances that will result from today’s ruling. Post, at 13–14. Those numbers rely on various unfounded assumptions: that the prosecution will place into evidence a drug analysis certificate in every case; that the defendant will never stipulate to the nature of the controlled substance; that even where no such stipulation is made, every defendant will object to the evidence or otherwise demand the appearance of the analyst. These assumptions are wildly unrealistic, and, as discussed below, the figures they produce do not reflect what has in fact occurred in those jurisdictions that have already adopted the rule we announce today.” Melendez-Diaz, 557 U. S. at __ n.10.

Whether the majority or the dissent proves to be correct concerning the impact of the ruling remains to be seen.

Q4: State procedural waiver rules, including notice-and-demand statutes.

The majority supported the adoption of procedural rules, including notice-and-demand statutes, which govern the time in which an objection must be lodged. Melendez-Diaz, 557 U. S. at __ & __ n.3. The majority, citing three state statutes in support, explained:

“notice-and-demand statutes require the prosecution to provide notice to the defendant of its intent to use an analyst’s report as evidence at trial, after which the defendant is given a period of time in which he may object to the admission of the evidence absent the analyst’s appearance live at trial. See, e.g., Ga. Code Ann. § 35–3–154.1 (2006); Tex. Code Crim. Proc. Ann., Art. 38.41, § 4 (Vernon 2005); Ohio Rev. Code Ann. § 2925.51(C) (West 2006). Contrary to the dissent’s perception, these statutes shift no burden whatever. The defendant always has the burden of raising his Confrontation Clause objection; notice-and-demand statutes simply govern the time within which he must do so. States are free to adopt procedural rules governing objections.” Melendez-Diaz, 557 U. S. at __; see also Luis E. Melendez-Diaz v. Massachusetts, Transcript at 9, 13-14, 20:17-19, 46-47, 47:6-10 (Nov. 10, 2008) (noting different varieties of notice-and-demand statutes).

Given this signal, will other states adopt similar procedural waiver rules governing the time to object to a lab analyst certification? Will such procedural rules ameliorate the concerns about analysts being required to testify on routine matters? Will states consider broadening the reach of the notice-and-demand statutes to include chain of custody witnesses on lab specimens (as discussed in Q4, above)?

Q5: Scope of public and business records.

One question advanced by the respondent was that the analyst certificates were admissible either as public or business records. The majority rejected this claim:

“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. See Fed. Rule Evid. 803(6). But that is not the case if the regularly conducted business activity is the production of evidence for use at trial. Our decision in Palmer v. Hoffman, 318 U. S. 109 (1943), made that distinction clear. There we held that an accident report provided by an employee of a railroad company did not qualify as a business record because, although kept in the regular course of the railroad’s operations, it was ‘calculated for use essentially in the court, not in the business.’ Id., at 114. The analysts’ certificates—like police reports generated by law enforcement officials—do not qualify as business or public records for precisely the same reason. See Rule 803(8) (defining public records as ‘excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel’).”

Melendez-Diaz, 557 U. S. at __. On this ground, the general rule that Confrontation Clause issues are not raised for business and public records appears to remain undisturbed.

Q6: Harmless error?

Was the error in admitting the certificate of analysis, without the analyst’s testimony, harmless beyond a reasonable doubt? The majority opinion noted this issue in a footnote, and that the Massachusetts Court of Appeals also did not address this issue. See Melendez-Diaz, 557 U. S. at __ n.14. How many other pending cases with a similar procedural posture (relying on an analyst’s certificate in lieu of testimony) may be salvaged under harmless error review?

Q7: Contours of “testimonial” statements remain unresolved.

The Supreme 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.” Crawford v. Washington, 541 U. S. 36, 68 n.10 (2004). The Crawford Court concluded that the term “testimonial” “applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” Crawford, 541 U.S. at __.

Many of the questions concerning the scope of testimonial statements from the landmark ruling in 2004 remain unresolved five years later. Melendez-Diaz did not provide further guidance on the meaning of “testimonial” statements since the Court concluded the certificates of analysis were affidavits, and therefore within the “core class of testimonial statements.” Melendez-Diaz, 557 U. S. at __ (“There is little doubt that the documents at issue in this case fall within the ‘core class of testimonial statements’ thus described. Our description of that category mentions affidavits twice.”) (quoting Crawford, 541 U.S. at 51-52).

Q8: The impact of Justice Souter’s retirement?

Questions are raised about the future application of the Confrontation Clause by the announced departure of Justice Souter. The alignment of Justices for the majority and dissent was uncommon. The majority opinion, authored by Justice Scalia, was joined by Justices Stevens, Souter, Thomas and Ginsburg. Justice Kennedy authored the dissent, which was joined by Chief Justice Roberts and Justices Breyer and Alito.

The majority considered the resolution to represent a “rather straightforward application of our holding in Crawford.” Melendez-Diaz, 557 U. S. at __. Since the decision was rendered by the narrowest of margins, and Justice Souter was a member of the majority, what impact will his departure and his replacement have on the Confrontation Clause jurisprudence where the issue is not so “straightforward”? The new Justice, replacing Justice Souter, may help provide clarification or a new direction on Confrontation Clause jurisprudence.

On related issues, which Justice provided the critical fifth vote? Why did it take so long to issue the ruling, after the case was argued and submitted on November 10, 2008? The answers to these questions are unlikely to be known.

Only time will tell as to these preliminary and other questions concerning the application of Melendez-Diaz.

Federal Rules of Evidence
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