Cases Applying Melendez-Diaz v. Massachusetts

The Melendez-Diaz Case Page provides a table that summarizes and links to significant or useful cases applying the Supreme Court decision in Melendez-Diaz. Periodically the table will be updated as new cases are reported. Other information on the Melendez-Diaz v. Massachusetts Resource Pages, includes Overview; Key Briefs & Materials; and coverage in the Federal Evidence Blog.

For many cases reported in the table below, a link to a pdf of the case is provided in the first column reporting the title of the case. If you become aware of any cases concerning Melendez-Diaz that are not included in the table below, please contact the Federal Evidence Review.



Case Holding/ Notes
Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527 (June 25, 2009)Certificates of forensic analysis are "testimonial" and "the Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits." Justice Scalia delivered the opinion of the Court, in which Stevens, Souter, Thomas, and Ginsburg, joined. Justice Thomas wrote a concurring opinion. Justice Kennedy filed a dissenting opinion, in which Chief Justice Roberts and Justices Breyer and Alito joined. Writing for the 5-4 majority, Justice Scalia indicated: "This case involves little more than the application of our holding in Crawford v. Washington, 541 U. S. 36 (2004). 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. We therefore reverse the judgment of the Appeals Court of Massachusetts and remand the case...."
Briscoe, et al., v. Virginia 559 U. S. __ (2010) (per curiam) (07-11191)
  • Two weeks after oral argument, the Supreme Court vacated the state court judgment and remanded the case “for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts, 557 U. S. ___ (2009).” The question presented in the case concerned whether the state can "avoid" its obligation to make a lab analyst who prepared a testimonial report available for defense cross-examination "by providing ... the accused ... a right to call the analyst as his own witness” at trial.

United States v. Yeley-Davis, _ F.3d _ (10th Cir. Jan. 20, 2011) (No. 10-8000)
  • In cocaine conspsiracy trial, admitting certified records of telephone calls made and received by the co-conspirators, which were admitted as FRE 902(11) certificates, and holding that neither the telephone records nor the certificates were testimonial;
  • holding that the "ruling in Melendez-Diaz does not change our holding that Rule 902(11) certifications of authenticity are not testimonial"

United States v. McGhee, _ F.3d _ (1st Cir. Dec. 7, 2010) (No. 09-1322)
  • In cocaine-base distribution trial, in admitting expert chemist’s trial testimony noting the results of another chemist who did not testify which confirmed that an uncharged sample, obtained during a controlled buy, was cocaine base, concluding that while Melendez-Diaz was distinguishable for a number of reasons, any assumed error was harmless beyond a reasonable doubt based on other uncontradicted, independent evidence

United States v. Ali, 616 F.3d 745 (8th Cir. 2010)
  • In aiding and assisting in the preparation of false individual income tax returns trial, Melendez-Diaz v. Massachusetts, does not apply to business records that have been certified by a custodian of records under FRE 803 and FRE 902

United States v. Orozco-Acosta, 607 F.3d 1156 (9th Cir. 2010)
  • In illegal reentry after deportation trial, the govenment conceded that the defendant’s Confrontation Clause rights were violated by the introduction of the CNR under Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527, 2539 (2009); however, the error was harmless beyond a reasonabe doubt
  • The admission of a warrant of deportation did not violate the Confrontation Clause since it was not testimonial; Melendez-Diaz, did not modify prior precedent in United States v. Bahena-Cardenas, 411 F.3d 1067, 1075 (9th Cir. 2005) (concluding a “warrant of deportation is nontestimonial because it was not made in anticipation of litigation, and because it is simply a routine, objective, cataloging of an unambiguous factual matter”; concluding a notation on the warrant concerning the removal of the alien was not testimonial)

United States v. Martinez-Rios, 595 F.3d 581 (5th Cir. 2010) (per curiam)
  • In illegal reentry after deportation trial, the defendant’s Confrontation Clause rights were violated by the introduction of the CNR, under Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527, 2539 (2009), since the defendant "was unable to cross-examine the person who had prepared a testimonial statement to be used against him at trial"
  • The CNRs are testimonial since they are “not routinely produced in the course of government business but instead are exclusively generated for use at trial”
  • However, there was no plain error in admitting a Certificate of Nonexistence of Record (noting that "after a diligent search … no record was found to exist indicating" that consent had been provided "for readmission in the United States") under the Confrontation Clause since no substantial rights were affected

United States v. Turner, 591 F.3d 928 (7th Cir. 2010)
  • In drug distribution trial involving supervisor’s expert testimony describing peer review process, providing independent opinion concerning the nature of the substance, and making passing reference to the testing chemist’s conclusion did not violate the Confrontation Clause, distinguishing Melendez-Diaz
  • Concluding "Melendez-Diaz did not do away with FRE 703. And most importantly, unlike in Melendez-Diaz, [the chemist]’s report was not admitted into evidence, let alone presented to the jury in the form of a sworn affidavit"

United States v. Santos, 589 F.3d 759 (5th Cir. 2009) In assault resulting in serious bodily injury prosecution, medical treatment statements of the victim concerning his pain and being cut up and stabbed which were made during an ongoing emergency to a prison nurse were not testimonial and did not implicate the Confrontation Clause
United States v. Johnson, 587 F.3d 625 (4th Cir. 2009)
  • In drug conspiracy prosecution, law enforcement expert testimony concerning the use of code words in recorded conversations (which was based on experience and testimonial statements from interviews with informants, cooperators and witnesses) did not violate the Confrontation Clause since the experts “presented their independent assessments to the jury” and “did not become mere conduits for that hearsay”
  • Circuit distinguishes Melendez-Diaz since experts were subject to cross-examination; in Melendez-Diaz, certificates of forensic analysis, which were “testimonial,” were used lieu of expert testimony
United States v. Rose, 587 F.3d 695 (5th Cir. 2009) (per curiam)

In possession of cocaine with intent to distribute and related firearms offenses prosecution in a bench trial:

  • Admission of drug lab report without the testimony of the authoring analyst violated the Confrontation Clause because even “sworn certificates of analysis detailing the results of forensic analyses on suspected drugs are testimonial statements for purposes of the Confrontation Clause” (citing Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 2532 (2009); Crawford v. Washington, 541 U.S. 36, 59 (2004) (testimonial statements by a non-testifying witness inadmissible unless the witness is unavailable and was previously subject to cross-examination by the defendant))
  • The error in admitting the drug lab report did not rise to the level of plain error based on the unique circumstances of the case because the lab supervisor who reviewed and signed the report testified, was subject to cross-examination, and the defendant failed to object to supervisor’s testimony or to the report (despite ambiguity on whether the supervisor had personal knowledge of tests performed)
  • Circuit clarifies “that we do not hold that the prosecution may avoid confrontation issues through the in-court testimony of any witness who signed a lab report without regard to that witness’s role in conducting tests or preparing the report. Instead, we refer to the above language from Melendez-Diaz to illustrate that any error that may have arisen from the facts of this case ... was not plain as required by our standard of review”)
Federal Rules of Evidence
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