The Aftermath of Melendez-diaz v. Massachusetts, 129 S. Ct. 2527 (2009)-identifying the Analyst Who Can Satisfy Confrontation

• Publication year: 2021

89 Nebraska L. Rev.561. The Aftermath of Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009)-Identifying the Analyst Who Can Satisfy Confrontation

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Note(fn*)

The Aftermath of Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009)-Identifying the Analyst Who Can Satisfy Confrontation

TABLE OF CONTENTS

I. Introduction.......................................... 562

II. Background........................................... 564
A.Development of the Confrontation Clause Over the Last 30 Years..................................... 564
B.Melendez-Diaz v. Massachusetts ................... 566
1.Facts and Procedural Posture of the Case ...... 566
2.Discussion and Holding ........................ 567
3.The Majority's Response to Arguments Opposing Its Ruling..................................... 568
i. Analyst Reports are Accusatory............ 568
ii. The Confrontation Clause Extends Beyond the "Conventional Witness" ................569
iii. Analyst Reports Are Not Neutral ...........569
iv. The Business Records Exception Does Not Apply to Analyst Reports ...................570
v. The Right to Subpoena Is Not Enough......571
vi. Requiring Analyst Testimony Will Not Cripple the Justice System................. 572

III.Analysis .............................................. 574
A.The Unresolved Issue: Who Must Testify?.......... 574
B.Resolving the Issue Through Legislative Action .... 578
1.Characteristics of the "Testifying Analyst"......580
2. Surrogate Testimony Will Not Satisfy Confrontation..................................581
3. Examination of Identifying Language in Ohio Notice-and-Demand Statute....................583

IV. Conclusion............................................585

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I. INTRODUCTION

A citizen's ability to confront his or her accuser is a right so fundamental that it was inscribed in the Sixth Amendment of the United States Constitution.(fn1) This "Confrontation Clause" has been a topic of great debate in recent decades. The broad language of the Clause spawns many questions of interpretation. The question at the core of most Confrontation Clause issues has been which out-of-court statements violate the Clause.

In recent years, the Supreme Court has increasingly addressed concerns over the interpretation of the Confrontation Clause. The most significant decision was Crawford v. Washington,(fn2) where the Court determined that the Clause prohibited the admission of statements that were "testimonial," regardless of their indicia of reliabil-ity.(fn3) Although the Court did not expressly define "testimonial,"(fn4) it did provide some examples in Crawford and in subsequent decisions. The list of testimonial statements identified by the Court included sworn statements made to the police,(fn5) statements made to 911 operators,(fn6) affidavits,(fn7) and other "prior testimony that the defendant was unable to cross-examine."(fn8) The Court's findings made clear that most out-of-court statements made to law enforcement are inadmissible without affording the defendant an opportunity to cross-examine the declar-ant.(fn9) With this issue resolved, the next question to emerge was whether certified analyst reports would bear the same fate. For years, prosecutors have freely admitted the contents of certified analyst reports

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as prima facie evidence against defendants to prove the composition, weight, or quantity of an illegal substance.(fn10) Many jurisdictions allowed such admissions without providing the defendant an opportunity to cross-examine the analyst who prepared the report.(fn11) After Crawford, defense attorneys challenged such admissions, arguing that analyst reports were "testimonial." They took the position that admitting the lab reports would violate the Confrontation Clause unless the prosecution presented the analyst for cross-examination.(fn12)

The Supreme Court addressed this issue in Melendez-Diaz v. Mas-sachusetts,(fn13) the latest victory for proponents of a broader application of the Confrontation Clause. In Melendez-Diaz, the Court examined a Massachusetts law(fn14) which authorized the admission of certified analyst reports as prima facie evidence against the accused.(fn15) The Supreme Court found that this statute unconstitutionally deprived the defendant of his Sixth Amendment right to confrontation.(fn16) The Court concluded that analyst reports are "testimonial" under Crawford and therefore require the live testimony of the analyst who performed the tests.(fn17) Although the Court found the Massachusetts law unconstitutional, it approved a handful of other statutes which provide for the admission of analyst reports as prima facie evidence.(fn18) Unlike the Massachusetts law, however, these "notice-and-demand"(fn19) statutes contain additional language requiring the prosecution to give notice to the defendant of its intent to admit the reports and grant the defendant the right to demand the live testimony of the analyst preparing the report.(fn20) While the Court's holding in Melendez-Diaz was a proper application of Crawford-and provides courts and legislatures with additional guidance as to the scope of the Confrontation Clause

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the Court failed to clearly identify who must testify in order to admit the contents of the lab report. This Note proposes that jurisdictions adopt legislation which identifies a single analyst whose testimony would satisfy confrontation requirements for admitting the entire contents of the lab report.

This Note begins by briefly exploring the development of the Confrontation Clause over the last thirty years, followed by a discussion of the holding in Melendez-Diaz and a summary of the Court's responses to arguments made in opposition to its ruling. Part III begins by identifying a significant issue on which the Court's ruling left inadequate guidance: Who must testify in order to admit the contents of the analyst report?(fn21) Oftentimes, several technicians are involved in the analysis of a single sample, yet Melendez-Dias fails to identify which of these analysts alone would satisfy confrontation requirements, leaving open the possibility that multiple analysts must testify in order to admit all the contents of a lab report. Section III.B proposes and discusses how jurisdictions can take legislative action in order to preemptively resolve this issue. Melendez-Diaz does not require the testimony of every analyst involved in the testing of the substance. In fact, the testimony of a single analyst may be sufficient as long as this analyst participated in the testing of the substance and possesses adequate knowledge regarding the equipment used and the methods employed. This Note proposes that jurisdictions adopt statutory language identifying the characteristics of this "testifying analyst," which would allow for the admission of the lab report through the testimony of a single analyst.

II. BACKGROUND

A. Development of the Confrontation Clause Over the Last Thirty Years

Three decades ago, in Ohio v. Roberts,(fn22) the Supreme Court concluded that the Confrontation Clause did not bar the admission of an unavailable witness's statement against a criminal defendant if the statement bore "adequate 'indicia of reliability.'"(fn23) The Court found that one could infer reliability in cases where the statement falls "within a firmly rooted hearsay exception."(fn24) The Court also found reliability where the evidence contained "particularized guarantees of trustworthiness."(fn25) Although the Court never fully defined these guarantees, it later ruled in Idaho v. Wright that "to be admissible

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under the Confrontation Clause, hearsay evidence used to convict a defendant must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial."(fn26) That is, the statement must be shown to be trustworthy on its own-no corroborating evidence could be admitted to prove the trustworthiness of the statement. The standard established by Ohio v. Roberts remained for nearly thirty years, and during this time courts and legislatures developed rules and adopted criteria to comply with this "reliability" standard. In 2004, with seven of the nine Roberts Court Justices no longer serving,(fn27) the Supreme Court overruled its "reliability" standard and replaced it with a broader, yet equally unclear "testimonial" standard.(fn28)

In Crawford v. Washington, the court ruled that the Confrontation Clause applied to all "testimonial" statements.(fn29) Writing for the majority, Justice Scalia found that history clearly demonstrated that the Confrontation Clause was intended to exclude ex parte testimony from "'witnesses'" against the accused-"those who 'bear testimony.'"(fn30) Justice Scalia further opined that "the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination."(fn31) Justice Scalia concluded that "[d]ispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty." Of course, this raised the issue of which statements qualified as testimonial. The Crawford Court failed to provide a user-friendly, bright-line definition of "testimonial,"(fn32) but it did identify what it called a "core class" of testimonial...