Supreme Court Watch: Supreme Court Holds Forensic Analysis Affidavits Violated Confrontation Clause

In a 5 to 4 ruling, the Supreme Court rules that certificates by a forensic analyst (identifying substance associated with the petitioner as cocaine) were affidavits and therefore “testimonial”; in the absence of the analyst’s testimony, the Confrontation Clause was violated, in Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527 (2009) (No. 07–591)

Yesterday the Supreme Court decided the latest case in a line construing the Confrontation Clause following the landmark decision in Crawford v. Washington, 541 U.S. 36 (2004). The issue presented in the case concerned “affidavits reporting the results of forensic analysis which showed that material seized by the police and connected to the defendant was cocaine.” The case probed whether this evidence was “‘testimonial,’ rendering the affiants ‘witnesses’ subject to the defendant’s right of confrontation under the Sixth Amendment.” Melendez-Diaz, 557 U. S. at __; see also Question Presented.

Facts

In the case, police officers received information that a store employee engaged in a pattern of suspected drug activity. According to reports, the employee would receive a telephone call, meet others in a blue sedan, and then return to the store shortly afterwards. During surveillance, law enforcement confirmed the activity. The employee was stopped and searched after exiting the car and an officer found four plastic bags containing suspected cocaine. Two other men in the car were arrested, including petitioner Luis Melendez-Diaz. After arriving at the station, and having observed the arrestees moving around during the transport, officers found a concealed plastic bag holding 19 other plastic bags.

Petitioner Melendez-Diaz was tried for distributing cocaine in state court. The government admitted baggies seized from the employee and found in the police car. Under state law, three “certificates of analysis” were admitted indicating the the weight of each bags and that the substance was determined to be cocaine. See Mass. Gen. Laws, ch. 111, § 13; see also State Exhibit 11 (example of one of the notarized drug analysis certificates in the case). The analyst swore to each certificate before a notary public, as required by state law. The trial court overruled the petitioner’s objection that admitting the certificates would violate the Confrontation Clause under Crawford v. Washington, 541 U. S. 36 (2004). State law permitted the certificates to be admitted as “prima facie evidence of the composition, quality, and the net weight of the narcotic . . . analyzed.” Mass. Gen. Laws, ch. 111, § 13. The jury convicted the defendant. On appeal, the defendant claimed the introduction of the certificates violated the Confrontation Clause.

The state appeals court affirmed by applying state supreme court precedent which had held that the Confrontation Clause was not violated by the introduction of the certificates of analysis. See Commonwealth v. Melendez-Diaz, 69 Mass. App. 1114, 870 N. E. 2d 676, n. 3 (July 31, 2007) (citing Commonwealth v. Verde, 444 Mass. 279, 283–285, 827 N. E. 2d 701, 705–706 (2005)). After the state supreme court denied review, the U.S. Supreme Court granted certiorari. Melendez-Diaz v. Massachusetts, 552 U. S. ___ (2008).

Majority Opinion

Justice Scalia, the author of the landmark Crawford Confrontation Clause ruling in 2004, wrote the majority opinion, which was joined by Justices Stevens, Souter, Thomas and Ginsburg. The Court concluded:

“This case involves little more than the application of our holding in Crawford v. Washington, 541 U. S. 36. The Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits, and the admission of such evidence against Melendez-Diaz was error.”
Melendez-Diaz, 557 U.S. __, 129 S. Ct. 2527 (footnote omitted).


The state court conviction was reversed and the case was remanded. In addressing the issue presented, the majority returned to the definition of “testimonial” statements provided in Crawford:

“Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its functional equivalent -- that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”
Melendez-Diaz, 557 U.S. __, 129 S. Ct. 2527 (quoting Crawford, 541 U.S. at 51-52) (internal quotation marks and citations omitted).


In applying this definition, the majority concluded:

“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. The documents at issue here, while denominated by Massachusetts law ‘certificates,’ are quite plainly affidavits: ‘declaration[s] of facts written down and sworn to by the declarant before an officer authorized to administer oaths.’ Black’s Law Dictionary 62 (8th ed. 2004). They are incontrovertibly a “‘solemn declaration or affirmation made for the purpose of establishing or proving some fact.’” Crawford, supra, at 51 (quoting 2 N. Webster, An American Dictionary of the English Language (1828)). The fact in question is that the substance found in the possession of Melendez-Diaz and his codefendants was, as the prosecution claimed, cocaine — the precise testimony the analysts would be expected to provide if called at trial. The ‘certificates’ are functionally identical to live, in-court testimony, doing ‘precisely what a witness does on direct examination.’ Davis v. Washington, 547 U. S. 813, 830 (2006) (emphasis deleted).”
Melendez-Diaz, 557 U.S. __, 129 S. Ct. 2527 (other citation omitted).


Additionally, the majority noted the purpose of the certificate was for use at trial:

“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,’” Crawford, supra, at 52, 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 sub-stance, Mass. Gen. Laws, ch. 111, § 13. 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. In short, under our decision in Crawford the analysts’ affidavits were testimonial statements, and the analysts were “witnesses” for purposes of the Sixth Amendment. Absent 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. Crawford, supra, at 54.”
Melendez-Diaz, 557 U.S. __, 129 S. Ct. 2527 (citation and footnote omitted).


The Court majority considered the resolution to represent a “rather straightforward application of our holding in Crawford.” The opinion did not address the issue whether the constitutional error was harmless beyond a reasonable doubt. Melendez-Diaz, 557 U. S. at __ n.14.

Responding To Dissent And Respondent Contentions

After this short analysis and application of the prior definition of “testimonial” under Crawford, the majority addressed many of the contentions advanced by the dissent and by the respondent.

  • The majority disagreed that its holding required the testimony of “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.” Melendez-Diaz, 557 U. S. at __ n.1, 129 S. Ct. __ n.1. Without providing much guidance, the majority responded:

    “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.”
    Melendez-Diaz, 557 U. S. at __ n.1.
  • The Court found the respondent’s claim unpersuasive that the analysts completing the certificates were not “‘accusatory’ witnesses, in that they do not directly accuse petitioner of wrongdoing; rather, their testimony is inculpatory only when taken together with other evidence linking petitioner to the contraband.” Melendez-Diaz, 557 U. S. at __. The Court identified “two classes of witnesses — those against the defendant and those in his favor. The prosecution must produce the former,” and “the defendant may call the latter,” under the Compulsory Process Clause. Melendez-Diaz, 557 U. S. at __ (footnote omitted). The Court declined to recognize “a third category of witnesses, helpful to the prosecution, but somehow immune from confrontation.”
  • The Court dismissed the argument of the dissent and respondent that “the analysts should not be subject to confrontation because they are not ‘conventional’ (or ‘typical’ or ‘ordinary’) witnesses” including “of the sort whose ex parte testimony was most notoriously used at the trial of Sir Walter Raleigh.” First, the Court noted, the Raleigh case did not limit the scope of the right of confrontation. Second, a distinction that a “conventional witness recalls events observed in the past, while an analyst’s report contains near-contemporaneous observations of the test,” was not well-founded and did not govern whether the Confrontation Clause applied. Third, the fact that the analyst did not observe “the crime nor any human action related to it” did not exempt the witness from the right of confrontation. The Court noted that if adopted, this “novel exception” would “exempt all expert witnesses — a hardly ‘unconventional’ class of witnesses.” Melendez-Diaz, 557 U. S. at __. Fourth, the fact that the statements were not the product of interrogation did not permit them to avoid the Confrontation Clause. There was no exception for volunteered information.
  • The Court rejected the distinction “between testimony recounting historical events, which is ‘prone to distortion or manipulation,’ and the testimony at issue here, which is the ‘resul[t] of neutral, scientific testing.’” This and related arguments were viewed as an effort to permit statements to be admitted that satisfied “particularized guarantees of trustworthiness,” under Ohio v. Roberts, 448 U. S. 56, 66 (1980), a standard overruled in Crawford. On this point, the majority added:

    “Respondent and the dissent may be right that there are other ways — and in some cases better ways — to challenge or verify the results of a forensic test. But the Constitution guarantees one way: confrontation. We do not have license to suspend the Confrontation Clause when a preferable trial strategy is available.”

    Melendez-Diaz, 557 U. S. at __.

    Because forensic testing may be manipulated, “Confrontation is one means of assuring accurate forensic analysis…. Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well.” Melendez-Diaz, 557 U. S. at __. In this case, the affidavit did not specify what tests were performed to support the conclusion that the substance was cocaine.
  • The Court noted that business and public records generally do not raise Confrontation Clause issues. According to the majority:

    “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. Whether or not they qualify as business or official records, the analysts’ statements here—prepared specifically for use at petitioner’s trial -- were testimony against petitioner, and the analysts were subject to confrontation under the Sixth Amendment.”
    Melendez-Diaz, 557 U. S. at __.
  • The Court rejected the Respondent’s claim that the petitioner could subpoena the analyst to testify at trial. This ability did not satisfy the requirements under the Confrontation Clause, particularly for a witness who was unavailable or refused to appear in court. As the Court explained:

    “Converting the prosecution’s duty under the Confrontation Clause into the defendant’s privilege under state law or the Compulsory Process Clause shifts the consequences of adverse-witness no-shows from the State to the accused. More fundamentally, the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court. Its value to the defendant is not replaced by a system in which the prosecution presents its evidence via ex parte affidavits and waits for the defendant to subpoena the affiants if he chooses.”
    Melendez-Diaz, 557 U. S. at __.
  • The Court discredited the argument that the certificates of analysis should be permitted to address the “necessities of trial and the adversary process” and that the impact of the ruling would impact a substantial number of drug cases involving forensic analysis. Most cases already are resolved by plea and there was little reason to question that this would continue.

Concurring Opinion

Justice Thomas wrote a brief concurring opinion. He agreed that the “documents at issue in this case ‘are quite plainly affidavits’” which fell “‘within the core class of testimonial statements’ governed by the Confrontation Clause.” He reiterated his “position that ‘the Confrontation Clause is implicated by extrajudicial statements only insofar as they are contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.’” Melendez-Diaz, 557 U. S. at __ (Thomas, J., concurring) (citations omitted).

Dissent

Justice Kennedy dissented in an opinion joined by Chief Justice Roberts and Justices Breyer and Alito. In sum, the lengthy dissent noted the broad sweep of the ruling, which it believed overruled the accepted practice that “scientific analysis could be introduced into evidence without testimony from the ‘analyst’ who produced it” and “disrupt criminal procedures that already give ample protections against the misuse of scientific evidence.” Melendez-Diaz, 557 U. S. at __ (Kennedy, J., dissenting).

The dissent introduced its objections succinctly:

“The Court sweeps away an accepted rule governing the admission of scientific evidence. Until today, scientific analysis could be introduced into evidence without testimony from the ‘analyst’ who produced it. This rule has been established for at least 90 years. It extends across at least 35 States and six Federal Courts of Appeals….

Crawford and Davis dealt with ordinary witnesses — women who had seen, and in two cases been the victim of, the crime in question. Those cases stand for the proposition that formal statements made by a conventional witness — one who has personal knowledge of some aspect of the defendant’s guilt — may not be admitted without the witness appearing at trial to meet the accused face to face. But Crawford and Davis do not say —indeed, could not have said, because the facts were not before the Court — that anyone who makes a testimonial statement is a witness for purposes of the Confrontation Clause, even when that person has, in fact, witnessed nothing to give them personal knowledge of the defendant’s guilt.


"The Court dictates to the States, as a matter of constitutional law, an as-yet-undefined set of rules governing what kinds of evidence may be admitted without in-court testimony. Indeed, under today’s opinion the States bear an even more onerous burden than they did before Crawford. Then, the States at least had the guidance of the hearsay rule and could rest assured that ‘where the evidence f[ell] within a firmly rooted hearsay exception,’ the Confrontation Clause did not bar its admission. Ohio v. Roberts, 448 U. S. 56, 66 (1980) (overruled by Crawford). Now, without guidance from any established body of law, the States can only guess what future rules this Court will distill from the sparse constitutional text. See, e.g., Méndez, Crawford v. Washington: A Critique, 57 Stan. L. Rev. 569, 586–593 (2004) (discussing unanswered questions regarding testimonial statements).

“The Court’s opinion suggests this will be a body of formalistic and wooden rules, divorced from precedent, common sense, and the underlying purpose of the Clause. Its ruling has vast potential to disrupt criminal procedures that already give ample protections against the misuse of scientific evidence.”
Melendez-Diaz, 557 U. S. at __ (Kennedy, J., dissenting).

Ramifications

The ramifications of this latest Confrontation Clause ruling will continue to be assessed in the coming weeks and months. For additional materials on this Confrontation Clause case, see the Federal Evidence Review Melendez-Diaz Resource Page, which includes links to briefs and key materials and will follow cases applying the decision.

Federal Rules of Evidence
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