No Witness? No Admission: the Tale of Testimonial Statements and Melendez-diaz v. Massachusetts - Jody L. Sellers

• Publication year: 2010

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No Witness? No Admission: The Tale of Testimonial Statements and Melendez-Diaz v. Massachusetts

In Melendez-Diaz v. Massachusetts,¹ the United States Supreme Court held that the Massachusetts trial court's admission into evidence of forensic "certificates of analysis" violated the Confrontation Clause of the Sixth Amendment.² Following Crawford v. Washington,³ the Supreme Court held that the accused has a right to be confronted with the forensic analysts at trial unless "the analysts [are] unavailable to testify at trial" and the accused "had a prior opportunity to cross-examine" the analysts.⁴ Melendez-Diaz will have an important impact on criminal evidence procedure, specifically in regard to the potential growth of notice-and-demand statutes.

I. Factual Background

In 2001 Luis Melendez-Diaz was arrested with two other men outside of a K-Mart in Boston, Massachusetts. While being transported to the police station, the police officers observed the passengers fidgeting in the back seat of the police cruiser. Upon arrival at the police station, the police officers searched the back seat of the cruiser and discovered nineteen small plastic bags hidden in the seat.⁵ Per police request, the bags were submitted to a state laboratory for chemical analysis in accordance with state law.⁶ After the laboratory confirmed that the bags contained cocaine, Melendez-Diaz was charged with cocaine distribution and trafficking.⁷

During trial, the prosecution placed into evidence three "certificates of analysis" that showed the forensic analysis results of the plastic bags discovered in the police cruiser.⁸ Relying on the United States Supreme Court's application ofthe Confrontation Clause in Crawford v. Washing-ton,⁹ Melendez-Diaz objected to the prosecution's admission of the certificates into evidence because the prosecution failed to produce the analysts who had conducted the testing as witnesses at trial.¹⁰ The trial court overruled the objection, however, and admitted the certificates into evidence "as 'prima facie evidence of the . . . narcotic . . . ana-lyzed.'"¹¹ Melendez-Diaz was subsequently found guilty by a jury.¹²

Melendez-Diaz appealed the trial court's ruling, asserting that the "admission of the certificates violated his Sixth Amendment right[s]," namely, the "right to be confronted with the witnesses against him."¹³ Citing Commonwealth v. Verde,¹⁴ a decision by the Supreme Judicial Court of Massachusetts, the Appeals Court of Massachusetts rejected Melendez-Diaz's claim, reaffirming that "the authors of certificates of. . . analysis are not subject to confrontation under the Sixth Amend- ment."¹⁵ The supreme judicial court denied review, but the United States Supreme Court granted certiorari.¹⁶

The Supreme Court held that admitting the certificates into evidence without offering the analysts as witnesses at trial violated Melendez-Diaz's right to confront the witnesses against him under the Confrontation Clause of the Sixth Amendment.¹⁷

II. Legal Background

A. Ole' Reliable: Ohio v. Roberts

For nearly a quarter of a century after the United States Supreme Court's ruling in Ohio v. Roberts,¹⁸ the "indicia of reliability" test determined whether or not a declarant's statements violated the Confrontation Clause.¹⁹ Following the Roberts test, when a witness was unavailable for cross-examination by the defendant at trial, the Confrontation Clause required both a showing that the witness was unavailable and proof that the witness's statements bore an "indicia of reliability."²⁰ Under the test, reliability could be established by either evidence that fell "within a firmly rooted hearsay exception" or by evidence that showed "particularized guarantees of trustworthiness."²¹

In Roberts the defendant was charged with forgery and possession of stolen credit cards. At Roberts's preliminary hearing, Anita Isaacs was called as the defense's witness but was never cross-examined by the defense counsel. Following the preliminary hearing, Roberts was indicted on all charges. At trial, Anita's preliminary testimony was offered by the prosecution as evidence of Roberts's guilt. Roberts objected to the use of the transcript, claiming a violation of his Sixth Amendment right under the Confrontation Clause. Nevertheless, the transcript was admitted and Roberts was convicted on all charges.²²

The Court of Appeals of Ohio reversed, stating that the prosecution failed to make a "good-faith effort" to ensure that Anita appeared at trial.²³ The Ohio Supreme Court concluded that the defendant's prior opportunity to cross-examine Anita at the preliminary hearing did not destroy the defendant's right to confrontation at trial.²⁴ The United States Supreme Court reversed, holding "that Anita was constitutionally unavailable for purposes of [Roberts's] trial,"²⁵ and the transcript of Anita's preliminary testimony "bore sufficient 'indicia of reliability.'"²⁶

In holding that Anita was constitutionally unavailable, the Supreme Court relied on the reasoning of several previous decisions construing the test of Sixth Amendment unavailability. Under the test, the prosecution must make a reasonable, good-faith effort to present the witness at trial before the witness is considered unavailable.²⁷ Following similar reasoning in Mancusi v. Stubbs,²⁸ the Supreme Court concluded that the prosecution's efforts to find Anita were made in good faith because, after numerous subpoenas and communications with Anita's parents months before trial, "Anita's whereabouts were [still unknown] and there was no assurance that [if found] . . . she could be forced to" appear in court.²⁹

The Supreme Court relied on its reasoning in California v. Green³⁰ in holding that there was sufficient "indicia of reliability" in the transcript of Anita's preliminary testimony.³¹ In Green several factors were presented to establish reliability: (1) the statements made at preliminary hearings are given under circumstances very similar to a typical trial, (2) the defendant had the opportunity to cross-examine witnesses about the statements made, and (3) the "'proceedings [are] conducted before a judicial tribunal [that] provide[s] a judicial record of the hearings.'"³² Following similar reasoning, the Supreme Court concluded that because Roberts had a sufficient opportunity to cross-examine Anita at his preliminary hearing, and because his attorney questioned Anita, there was clear "indicia of reliability," which allowed the trial court to evaluate the truth of the witness's statement.³³

For nearly a quarter of a century, the holding in Roberts remained the foundation for determining whether admitting a declarant's statements into evidence violated a defendant's right to confrontation. The Supreme Court reconsidered the Roberts test in Crawford v. Washington³⁴ and overruled more than two decades of precedent, holding that admission based on a mere finding of reliability "is fundamentally at odds with the right to confrontation."³⁵

B. Confrontation Today: The Crawford Approach

In 2004 the Supreme Court held in Crawford v. Washington³⁶ that when "testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is . . . confronta-tion."³⁷ In Crawford the defendant, Michael Crawford, was charged with assault and attempted murder. The prosecution offered into evidence tape-recorded statements given by Crawford's wife to police, asserting Crawford's guilt.³⁸ Crawford objected to admission of the recorded statements as a violation of his Sixth Amendment "right to be 'confronted with the witnesses against him.'"³⁹ The trial court admitted the statements, however, finding that the statements were trustworthy and thus complied with the Roberts test. The Washington Court of Appeals reversed, applying the Roberts test as well and finding that the statements were not trustworthy.⁴⁰ The Washington Supreme Court then reversed the court of appeals, applying the Roberts test yet again and unanimously concluding that the recorded statements "bore guarantees of trustworthiness."⁴¹ As the United States Supreme Court later noted in its opinion, the failings of the Roberts test "were on full display."⁴²

Acknowledging the inherent flaws in the Roberts test,⁴³ the United States Supreme Court granted certiorari to settle the dispute.⁴⁴ To determine the meaning ofthe Sixth Amendment's Confrontation Clause, the Supreme Court conducted a survey of the historical background of the Confrontation Clause, most notably the English common law trial of

Sir Walter Raleigh⁴⁵ and the American colonial "declarations of rights adopted [during] . . . the Revolution."⁴⁶ Finding historical support for a common law right of confrontation, the Supreme Court noted two principles inferred from this history: (1) the Confrontation Clause was primarily directed at the "use of ex parte examinations as evidence against the accused,"⁴⁷ and (2) the Framers would have only allowed testimonial statements of a witness who did not appear at trial if the witness "was unavailable to testify[] and the defendant had had a prior opportunity for cross-examination."⁴⁸

Applying these principles, the Supreme Court reasoned that the text of the Confrontation Clause is not implicated by all hearsay, but only by " 'testimonial' statements."⁴⁹ The Court established three different formulations of testimonial statements: "ex parte in-court testimony or its functional equivalent,"⁵⁰ "extrajudicial statements . . . contained in formalized testimonial materials,"⁵¹ and "statements . . . made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."⁵² Having established what testimonial statements were, the Court went on to note that for the most part, "case law ha[d] been largely consistent with these" formulations of testimonial statements.⁵³

Despite this consistency, the Supreme Court acknowledged...