OPINION OF THE COURT MELENDEZ-DIAZ V. MASSACHUSETTS 557 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 07-591 LUIS E. MELENDEZ-DIAZ, PETITIONER v. MASSACHUSETTS

															on writ of certiorari to the appeals court of
massachusetts

															[June 25, 2009]

															   Justice Scalia delivered the
opinion of the Court.

															   The Massachusetts courts in this
case admitted into evidence affidavits reporting the results of
forensic analysis which showed that material seized by the police
and connected to the defendant was cocaine. The question presented
is whether those affidavits are “testimonial,” rendering the
affiants “witnesses” subject to the defendant’s right of
confrontation under the Sixth Amendment.

															I

															   In 2001, Boston police officers
received a tip that a Kmart employee, Thomas Wright, was engaging
in suspicious activity. The informant reported that Wright
repeatedly received phone calls at work, after each of which he
would be picked up in front of the store by a blue sedan, and would
return to the store a short time later. The police set up
surveillance in the Kmart parking lot and witnessed this precise
sequence of events. When Wright got out of the car upon his return,
one of the officers detained and searched him, finding four clear
white plastic bags containing a substance resembling cocaine. The
officer then signaled other officers on the scene to arrest the two
men in the car—one of whom was petitioner Luis Melendez-Diaz. The
officers placed all three men in a police cruiser.

															   During the short drive to the
police station, the officers observed their passengers fidgeting
and making furtive movements in the back of the car. After
depositing the men at the station, they searched the police cruiser
and found a plastic bag containing 19 smaller plastic bags hidden
in the partition between the front and back seats. They submitted
the seized evidence to a state laboratory required by law to
conduct chemical analysis upon police request. Mass. Gen. Laws, ch.
111, §12 (West 2006).

															   Melendez-Diaz was charged with distributing
cocaine and with trafficking in cocaine in an amount between 14 and
28 grams. Ch. 94C, §§32A, 32E(b)(1). At trial, the prosecution
placed into evidence the bags seized from Wright and from the
police cruiser. It also submitted three “certificates of analysis”
showing the results of the forensic analysis performed on the
seized substances. The certificates reported the weight of the
seized bags and stated that the bags “[h]a[ve] been examined with
the following results: The substance was found to contain:
Cocaine.” App. to Pet. for Cert. 24a, 26a, 28a. The certificates
were sworn to before a notary public by analysts at the State
Laboratory Institute of the Massachusetts Department of Public
Health, as required under Massachusetts law. Mass. Gen. Laws, ch.
111, §13.

															   Petitioner objected to the admission of the
certificates, asserting that our Confrontation Clause decision in Crawford v. Washington , 541 U. S. 36 (2004), required the
analysts to testify in person. The objection was overruled, and the
certificates were admitted pursuant to state law as “prima facie
evidence of the composition, quality, and the net weight of the
narcotic … analyzed.” Mass. Gen. Laws, ch. 111, §13.

															   The jury found Melendez-Diaz guilty. He
appealed, contending, among other things, that admission of the
certificates violated his Sixth Amendment right to be confronted
with the witnesses against him. The Appeals Court of Massachusetts
rejected the claim, affirmance order, 69 Mass. App. 1114, 870
N. E. 2d 676, 2007 WL 2189152, *4, n. 3 (July 31, 2007),
relying on the Massachusetts Supreme Judicial Court’s decision in Commonwealth v. Verde , 444 Mass. 279, 283–285,
827 N. E. 2d 701, 705–706 (2005), which held that the authors
of certificates of forensic analysis are not subject to
confrontation under the Sixth Amendment. The Supreme Judicial Court
denied review. 449 Mass. 1113, 874 N. E. 2d 407 (2007). We
granted certiorari. 552 U. S. ___ (2008).

															II

															   The Sixth Amendment to the United
States Constitution, made applicable to the States via the
Fourteenth Amendment, Pointer v. Texas , 380 U. S. 400 , 403
(1965), provides that “[i]n all criminal prosecutions, the accused
shall enjoy the right … to be confronted with the witnesses against
him.” In Crawford , after reviewing the Clause’s historical
underpinnings, we held that it guarantees a defendant’s right to
confront those “who ‘bear testimony’ ” against him. 541 U. S.,
at 51. A witness’s testimony against a defendant is thus
inadmissible unless the witness appears at trial or, if the witness
is unavailable, the defendant had a prior opportunity for
cross-examination. Id., at 54.

															   Our opinion described the class
of testimonial statements covered by the Confrontation Clause as
follows:

															   “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.” Id. , at 51–52 (internal quotation marks and
citations omitted).

															   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. See also White v. Illinois , 502 U. S. 346 , 365
(1992) (Thomas, J., concurring in part and concurring in judgment)
(“[T]he 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”). 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).

															   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 substance, 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. See App. to Pet. for Cert. 25a, 27a,
29a.

															   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.[ Footnote 1 ]

															III

															   Respondent and the dissent
advance a potpourri of analytic arguments in an effort to avoid
this rather straightforward application of our holding in Crawford . Before addressing them, however, we must assure
the reader of the falsity of the dissent’s opening alarum that we
are “sweep[ing] away an accepted rule governing the admission of
scientific evidence” that has been “established for at least 90
years” and “extends across at least 35 States and six Federal
Courts of Appeals.” Post , at 1 (opinion of Kennedy,
J.).

															   The vast majority of the
state-court cases the dissent cites in support of this claim come
not from the last 90 years, but from the last 30, and not
surprisingly nearly all of them rely on our decision in Ohio v. Roberts , 448 U. S. 56 (1980), or its
since-rejected theory that unconfronted testimony was admissible as
long as it bore indicia of reliability, id., at 66. See post , at 30.[ Footnote
2 ] As for the six Federal Courts of Appeals cases cited by the
dissent, five of them postdated and expressly relied on Roberts . See post, at 21–22. The sixth predated Roberts but relied entirely on the same erroneous
theory . See Kay v. United States , 255
F. 2d 476, 480–481 (CA4 1958) (rejecting confrontation clause
challenge “where there is reasonable necessity for [the evidence]
and where . . . the evidence has those qualities of reliability and
trustworthiness”).

															   A review of cases that predate the Roberts era yields a mixed picture. As the dissent notes,
three state supreme court decisions from the early 20th century
denied confrontation with respect to certificates of analysis
regarding a substance’s alcohol content. See post, at 21
(citing cases from Massachusetts, Connecticut, and Virginia). But
other state courts in the same era reached the opposite conclusion.
See Torres v. State , 18 S. W. 2d 179,
180 (Tex. Crim. App. 1929); Volrich v. State , No.
278, 1925 WL 2473 (Ohio App., Nov. 2, 1925). At least this much is
entirely clear: In faithfully applying Crawford to the
facts of this case, we are not overruling 90 years of settled
jurisprudence. It is the dissent that seeks to overturn precedent
by resurrecting Roberts a mere five years after it was
rejected in Crawford .

															   We turn now to the various legal arguments
raised by respondent and the dissent.

															A

															   Respondent first argues that the
analysts are not subject to confrontation because they are 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. See Brief for Respondent 10. This finds no support
in the text of the Sixth Amendment or in our case law.

															   The Sixth Amendment guarantees a
defendant the right “to be confronted with the witnesses against him .” (Emphasis added.) To the extent the analysts
were witnesses (a question resolved above), they certainly provided
testimony against petitioner, proving one fact necessary
for his conviction—that the substance he possessed was cocaine. The
contrast between the text of the Confrontation Clause and the text
of the adjacent Compulsory Process Clause confirms this analysis.
While the Confrontation Clause guarantees a defendant the right to
be confronted with the witnesses “against him,” the Compulsory
Process Clause guarantees a defendant the right to call witnesses
“in his favor.” U. S. Const., Amdt. 6. The text of the Amendment
contemplates two classes of witnesses—those against the defendant
and those in his favor. The prosecution must produce the
former;[ Footnote 3 ] the
defendant may call the latter. Contrary to respondent’s
assertion, there is not a third category of witnesses, helpful to
the prosecution, but somehow immune from confrontation.

															   It is often, indeed perhaps usually, the case
that an adverse witness’s testimony, taken alone, will not suffice
to convict. Yet respondent fails to cite a single case in which
such testimony was admitted absent a defendant’s opportunity to
cross-examine.[ Footnote 4 ]
Unsurprisingly, since such a holding would be contrary to
longstanding case law. In Kirby v. United States , 174 U. S. 47 (1899), the Court considered Kirby’s conviction for receiving
stolen property, the evidence for which consisted, in part, of the
records of conviction of three individuals who were found guilty of
stealing the relevant property. Id., at 53. Though this
evidence proved only that the property was stolen, and not that
Kirby received it, the Court nevertheless ruled that admission of
the records violated Kirby’s rights under the Confrontation Clause. Id., at 55. See also King v. Turner , 1
Mood. 347, 168 Eng. Rep. 1298 (1832) (confession by one defendant
to having stolen certain goods could not be used as evidence
against another defendant accused of receiving the stolen
property).

															B Respondent and
the dissent argue that the analysts should not be subject to
confrontation because they are not “conventional” (or “typical” or
“ordinary”) witnesses of the sort whose ex parte testimony
was most notoriously used at the trial of Sir Walter Raleigh. Post , at 15–16; Brief for Respondent 28. It is true, as
the Court recognized in Crawford , that ex parte examinations of the sort used at Raleigh’s trial have “long been
thought a paradigmatic confrontation violation.” 541 U. S., at 52.
But the paradigmatic case identifies the core of the right to
confrontation, not its limits. The right to confrontation was not
invented in response to the use of the ex parte examinations in Raleigh’s Case , 2 How. St. Tr. 1 (1603).
That use provoked such an outcry precisely because it flouted the
deeply rooted common-law tradition “of live testimony in court
subject to adversarial testing.” Crawford , supra ,
at 43 (citing 3 W. Blackstone, Commentaries on the Laws of England
373–374 (1768)). See also Crawford , supra , at
43–47. In any case,
the purported distinctions respondent and the dissent identify
between this case and Sir Walter Raleigh’s “conventional” accusers
do not survive scrutiny. The dissent first contends that a
“conventional witness recalls events observed in the past, while an
analyst’s report contains near-contemporaneous observations of the
test.” Post , at 16–17. It is doubtful that the analyst’s
reports in this case could be characterized as reporting
“near-contemporaneous observations”; the affidavits were completed
almost a week after the tests were performed. See App. to Pet. for
Cert. 24a–29a (the tests were performed on November 28, 2001, and
the affidavits sworn on December 4, 2001). But regardless, the
dissent misunderstands the role that “near-contemporaneity” has
played in our case law. The dissent notes that that factor was
given “substantial weight” in Davis, post, at 17,
but in fact that decision disproves the dissent’s
position. There the Court considered the admissibility of
statements made to police officers responding to a report of a
domestic disturbance. By the time officers arrived the assault had
ended, but the victim’s statements—written and oral—were
sufficiently close in time to the alleged assault that the trial
court admitted her affidavit as a “present sense impression.” Davis , 547 U. S. , at 820 (internal quotation
marks omitted). Though the witness’s statements in Davis were “near-contemporaneous” to the events she reported, we
nevertheless held that they could not be admitted absent
an opportunity to confront the witness. Id., at
830. A second reason the dissent
contends that the analysts are not “conventional witnesses” (and
thus not subject to confrontation) is that they “observe[d] neither
the crime nor any human action related to it.” Post, at
17. The dissent provides no authority for this particular
limitation of the type of witnesses subject to confrontation. Nor
is it conceivable that all witnesses who fit this description would
be outside the scope of the Confrontation Clause. For example, is a
police officer’s investigative report describing the crime scene
admissible absent an opportunity to examine the officer? The
dissent’s novel exception from coverage of the Confrontation Clause
would exempt all expert witnesses—a hardly “unconventional” class
of witnesses. A third respect in which the
dissent asserts that the analysts are not “conventional” witnesses
and thus not subject to confrontation is that their statements were
not provided in response to interrogation. Ibid . See also
Brief for Respondent 29. As we have explained, “[t]he Framers were
no more willing to exempt from cross-examination volunteered
testimony or answers to open-ended questions than they were to
exempt answers to detailed interrogation.” Davis , supra , at 822–823, n. 1. Respondent and the dissent cite
no authority, and we are aware of none, holding that a person who
volunteers his testimony is any less a “ ‘witness against’ the
defendant,” Brief for Respondent 26, than one who is responding to
interrogation. In any event, the analysts’ affidavits in this case were presented in response to a police request. See Mass.
Gen. Laws, ch. 111, §§12–13. If an affidavit submitted in response
to a police officer’s request to “write down what happened”
suffices to trigger the Sixth Amendment’s protection (as it
apparently does, see Davis , 547 U. S., at 819–820; id. , at 840, n. 5 (Thomas, J., concurring in judgment
in part and dissenting in part)), then the analysts’ testimony
should be subject to confrontation as well. C Respondent
claims that there is a difference, for Confrontation Clause
purposes, 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.” Brief
for Respondent 29. Relatedly, respondent and the dissent argue that
confrontation of forensic analysts would be of little value because
“one would not reasonably expect a laboratory professional … to
feel quite differently about the results of his scientific test by
having to look at the defendant.” Id., at 31 (internal
quotation marks omitted); see post , at 10–11. This argument
is little more than an invitation to return to our overruled
decision in Roberts , 448 U. S. 56 , which held that evidence
with “particularized guarantees of trustworthiness” was admissible
notwithstanding the Confrontation Clause. Id., at 66. What
we said in Crawford in response to that argument remains
true: “To be sure, the Clause’s
ultimate goal is to ensure reliability of evidence, but it is a
procedural rather than a substantive guarantee. It commands, not
that evidence be reliable, but that reliability be assessed in a
particular manner: by testing in the crucible of cross-examination.
… Dispensing with confrontation because testimony is obviously
reliable is akin to dispensing with jury trial because a defendant
is obviously guilty. This is not what the Sixth Amendment
prescribes.” 541 U. S., at 61–62. 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.[ Footnote 5 ] But the Constitution guarantees
one way: confrontation. We do not have license to suspend the
Confrontation Clause when a preferable trial strategy is
available. Nor is it evident that what
respondent calls “neutral scientific testing” is as neutral or as
reliable as respondent suggests. Forensic evidence is not uniquely
immune from the risk of manipulation. According to a recent study
conducted under the auspices of the National Academy of Sciences,
“[t]he majority of [laboratories producing forensic evidence] are
administered by law enforcement agencies, such as police
departments, where the laboratory administrator reports to the head
of the agency.” National Research Council of the National
Academies, Strengthening Forensic Science in the United States: A
Path Forward 6–1 (Prepublication Copy Feb. 2009) (hereinafter
National Academy Report). And “[b]ecause forensic scientists often
are driven in their work by a need to answer a particular question
related to the issues of a particular case, they sometimes face
pressure to sacrifice appropriate methodology for the sake of
expediency.” Id. , at S–17. A forensic analyst responding
to a request from a law enforcement official may feel pressure—or
have an incentive—to alter the evidence in a manner favorable to
the prosecution. Confrontation is one means
of assuring accurate forensic analysis. While it is true, as the
dissent notes, that an honest analyst will not alter his testimony
when forced to confront the defendant, post, at 10, the
same cannot be said of the fraudulent analyst. See Brief for
National Innocence Network as Amicus Curiae 15–17
(discussing cases of documented “drylabbing” where forensic
analysts report results of tests that were never performed);
National Academy Report 1–8 to 1–10 (discussing documented cases of
fraud and error involving the use of forensic evidence). Like the
eyewitness who has fabricated his account to the police, the
analyst who provides false results may, under oath in open court,
reconsider his false testimony. See Coy v. Iowa , 487 U. S. 1012 , 1019 (1988). And, of
course, the prospect of confrontation will deter fraudulent
analysis in the first place. Confrontation is designed to
weed out not only the fraudulent analyst, but the incompetent one
as well. Serious deficiencies have been found in the forensic
evidence used in criminal trials. One commentator asserts that
“[t]he legal community now concedes, with varying degrees of
urgency, that our system produces erroneous convictions based on
discredited forensics.” Metzger, Cheating the Constitution, 59
Vand. L. Rev. 475, 491 (2006). One study of cases in which
exonerating evidence resulted in the overturning of criminal
convictions concluded that invalid forensic testimony contributed
to the convictions in 60% of the cases. Garrett & Neufeld,
Invalid Forensic Science Testimony and Wrongful Convictions, 95 Va.
L. Rev. 1, 14 (2009). And the National Academy Report
concluded: “The forensic science system,
encompassing both research and practice, has serious problems that
can only be addressed by a national commitment to overhaul the
current structure that supports the forensic science community in
this country.” National Academy Report P–1 (emphasis in
original).[ Footnote
6 ] Like expert witnesses generally,
an analyst’s lack of proper training or deficiency in judgment may
be disclosed in cross-examination. This case is illustrative.
The affidavits submitted by the analysts contained only the
bare-bones statement that “[t]he substance was found to contain:
Cocaine.” App. to Pet. for Cert. 24a, 26a, 28a. At the time of
trial, petitioner did not know what tests the analysts performed,
whether those tests were routine, and whether interpreting their
results required the exercise of judgment or the use of skills that
the analysts may not have possessed. While we still do not know the
precise tests used by the analysts, we are told that the
laboratories use “methodology recommended by the Scientific Working
Group for the Analysis of Seized Drugs,” App. to Brief for
Petitioner 1a–2a. At least some of that methodology requires the
exercise of judgment and presents a risk of error that might be
explored on cross-examination. See 2 P. Giannelli & E.
Imwinkelried, Scientific Evidence §23.03[c], pp. 532–533, ch. 23A,
p. 607 (4th ed. 2007) (identifying four “critical errors” that
analysts may commit in interpreting the results of the commonly
used gas chromatography/mass spectrometry analysis); Shellow, The
Application of Daubert to the Identification of Drugs, 2
Shepard’s Expert & Scientific Evidence Quarterly 593, 600
(1995) (noting that while spectrometers may be equipped with
computerized matching systems, “forensic analysts in crime
laboratories typically do not utilize this feature of the
instrument, but rely exclusively on their subjective
judgment”). The same is true of many of
the other types of forensic evidence commonly used in criminal
prosecutions. “[T]here is wide variability across forensic science
disciplines with regard to techniques, methodologies, reliability,
types and numbers of potential errors, research, general
acceptability, and published material.” National Academy Report
S–5. See also id., at 5–9, 5–12, 5–17, 5–21 (discussing
problems of subjectivity, bias, and unreliability of common
forensic tests such as latent fingerprint analysis,
pattern/impression analysis, and toolmark and firearms analysis).
Contrary to respondent’s and the dissent’s suggestion, there is
little reason to believe that confrontation will be useless in
testing analysts’ honesty, proficiency, and methodology—the
features that are commonly the focus in the cross-examination of
experts. D Respondent
argues that the analysts’ affidavits are admissible without
confrontation because they are “akin to the types of official and
business records admissible at common law.” Brief for Respondent
35. 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.[ Footnote 7 ] 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”). Respondent seeks to rebut
this limitation by noting that at common law the results of a
coroner’s inquest were admissible without an opportunity for
confrontation. But as we have previously noted, whatever the status
of coroner’s reports at common law in England, they were not
accorded any special status in American practice. See Crawford , 541 U. S., at 47, n. 2; Giles v. California , 554 U. S. ___, ___ (2008) (slip op., at 20)
(Breyer, J., dissenting); Evidence—Official Records—Coroner’s
Inquest, 65 U. Pa. L. Rev. 290 (1917). The dissent identifies a
single class of evidence which, though prepared for use at trial,
was traditionally admissible: a clerk’s certificate authenticating
an official record—or a copy thereof—for use as evidence. See post, at 19. But a clerk’s authority in that regard was
narrowly circumscribed. He was permitted “to certify to the
correctness of a copy of a record kept in his office,” but had “no
authority to furnish, as evidence for the trial of a lawsuit, his
interpretation of what the record contains or shows, or to certify
to its substance or effect.” State v. Wilson , 141
La. 404, 409, 75 So. 95, 97 (1917). See also State v. Champion , 116 N. C. 987, 21 S. E. 700, 700–701
(1895); 5 J. Wigmore, Evidence §1678 (3d ed. 1940). The dissent
suggests that the fact that this exception was “ ‘narrowly
circumscribed’ ” makes no difference. See post, at
20. To the contrary, it makes all the difference in the world. It
shows that even the line of cases establishing the one narrow
exception the dissent has been able to identify simultaneously
vindicates the general rule applicable to the present case. A clerk
could by affidavit authenticate or provide a copy of an
otherwise admissible record, but could not do what the analysts did
here: create a record for the sole purpose of providing
evidence against a defendant.[ Footnote 8 ] Far more probative here are
those cases in which the prosecution sought to admit into evidence
a clerk’s certificate attesting to the fact that the clerk had
searched for a particular relevant record and failed to find it.
Like the testimony of the analysts in this case, the clerk’s
statement would serve as substantive evidence against the defendant
whose guilt depended on the nonexistence of the record for which
the clerk searched. Although the clerk’s certificate would qualify
as an official record under respondent’s definition—it was prepared
by a public officer in the regular course of his official
duties—and although the clerk was certainly not a “conventional
witness” under the dissent’s approach, the clerk was nonetheless
subject to confrontation. See People v. Bromwich ,
200 N. Y. 385, 388–389, 93 N. E. 933, 934 (1911); People v. Goodrode , 132 Mich. 542, 547, 94
N. W. 14, 16 (1903); Wigmore, supra , §1678.[ Footnote 9 ] Respondent also
misunderstands the relationship between the
business-and-official-records hearsay exceptions and the
Confrontation Clause. As we stated in Crawford: “Most of
the hearsay exceptions covered statements that by their nature were
not testimonial—for example, business records or statements in
furtherance of a conspiracy.” 541 U. S., at 56. 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. E Respondent
asserts that we should find no Confrontation Clause violation in
this case because petitioner had the ability to subpoena the
analysts. But that power—whether pursuant to state law or the
Compulsory Process Clause—is no substitute for the right of
confrontation. Unlike the Confrontation Clause, those provisions
are of no use to the defendant when the witness is unavailable or
simply refuses to appear. See, e.g. , Davis , 547
U. S., at 820 (“[The witness] was subpoenaed, but she did not
appear at … trial”). 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. F Finally,
respondent asks us to relax the requirements of the Confrontation
Clause to accommodate the “ ‘necessities of trial and the
adversary process.’ ” Brief for Respondent 59. It is not clear
whence we would derive the authority to do so. The Confrontation
Clause may make the prosecution of criminals more burdensome, but
that is equally true of the right to trial by jury and the
privilege against self-incrimination. The Confrontation Clause—like
those other constitutional provisions—is binding, and we may not
disregard it at our convenience. We also doubt
the accuracy of respondent’s and the dissent’s dire predictions.
The dissent, respondent, and its amici highlight the
substantial total number of controlled-substance analyses performed
by state and federal laboratories in recent years. But only some of
those tests are implicated in prosecutions, and only a small
fraction of those cases actually proceed to trial. See Brief for
Law Professors as Amici Curiae 7–8 (nearly 95% of
convictions in state and federal courts are obtained via guilty
plea).[ Footnote
10 ] 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,[ Footnote 11 ] 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, 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. Indeed, in Massachusetts itself, a
defendant may subpoena the analyst to appear at trial, see Brief
for Respondent 57, and yet there is no indication that
obstructionist defendants are abusing the privilege. The dissent finds this
evidence “far less reassuring than promised.” Post , at 28.
But its doubts rest on two flawed premises. First, the dissent
believes that those state statutes “requiring the defendant to give
early notice of his intent to confront the analyst,” are
“burden-shifting statutes [that] may be invalidated by the Court’s
reasoning.” Post, at 22, 28–29. That is not so. In their
simplest form, 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. See Wainwright v. Sykes , 433
U. S. 72 , 86–87 (1977). It is common to require a defendant to
exercise his rights under the Compulsory Process Clause in advance
of trial, announcing his intent to present certain witnesses. See
Fed. Rules Crim. Proc. 12.1(a), (e), 16(b)(1)(C); Comment: Alibi
Notice Rules: The Preclusion Sanction as Procedural Default, 51 U.
Chi. L. Rev. 254, 254–255, 281–285 (1984) (discussing and
cataloguing State notice-of-alibi rules); Taylor v. Illinois , 484 U. S. 400 , 411
(1988); Williams v. Florida , 399 U. S. 78 , 81–82
(1970). There is no conceivable reason why he cannot similarly be
compelled to exercise his Confrontation Clause rights before trial.
See Hinojos-Mendoza v. People , 169 P. 3d 662, 670
(Colo. 2007) (discussing and approving Colorado’s notice-and-demand
provision). Today’s decision will not disrupt criminal prosecutions
in the many large States whose practice is already in accord with
the Confrontation Clause.[ Footnote 12 ] Second, the dissent notes
that several of the state-court cases that have already adopted
this rule did so pursuant to our decision in Crawford , and
not “independently … as a matter of state law.” Post, at
28. That may be so. But in assessing the likely practical effects
of today’s ruling, it is irrelevant why those courts
adopted this rule; it matters only that they did so. It is
true that many of these decisions are recent, but if the dissent’s
dire predictions were accurate, and given the large number of drug
prosecutions at the state level, one would have expected immediate
and dramatic results. The absence of such evidence is
telling. But it is not surprising.
Defense attorneys and their clients will often stipulate to the
nature of the substance in the ordinary drug case. It is unlikely
that defense counsel will insist on live testimony whose effect
will be merely to highlight rather than cast doubt upon the
forensic analysis. Nor will defense attorneys want to antagonize
the judge or jury by wasting their time with the appearance of a
witness whose testimony defense counsel does not intend to rebut in
any fashion.[ Footnote 13 ]
The amicus brief filed by District Attorneys in Support of
the Commonwealth in the Massachusetts Supreme Court case upon which
the Appeals Court here relied said that “it is almost always the
case that [analysts’ certificates] are admitted without objection.
Generally, defendants do not object to the admission of drug
certificates most likely because there is no benefit to a defendant
from such testimony.” Brief for District Attorneys in Support of
the Commonwealth in No. SJC–09320 (Mass.), p. 7 (footnote
omitted). Given these strategic considerations, and in light of the
experience in those States that already provide the same or similar
protections to defendants, there is little reason to believe that
our decision today will commence the parade of horribles respondent
and the dissent predict. *  *  * 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.[ Footnote 14 ] We therefore reverse the judgment of the
Appeals Court of Massachusetts and remand the case for further
proceedings not inconsistent with this opinion. It is so ordered. Footnote
1 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. Footnote
2 The exception is a single
pre- Roberts case that relied on longstanding Massachusetts
precedent. See Commonwealth v. Harvard , 356 Mass.
452, 462, 253 N. E. 2d 346, 352 (1969). Others are simply
irrelevant, since they involved medical reports created for
treatment purposes, which would not be testimonial under our
decision today. See, e.g., Baber v. State , 775 So. 2d 258, 258–259 (Fla. 2000); State v. Garlick , 313 Md. 209, 223–225, 545
A. 2d 27, 34–35 (1998). Footnote
3 The right to confrontation
may, of course, be waived, including by failure to object to the
offending evidence; and States may adopt procedural rules governing
the exercise of such objections. See infra , at
21. Footnote
4 Respondent cites our
decision in Gray v. Maryland , 523 U. S. 185 (1998).
That case did indeed distinguish between evidence that is
“incriminating on its face” and evidence that “bec[omes]
incriminating … only when linked with evidence introduced later at
trial, ” id., at 191 (internal quotation marks
omitted). But it did so for the entirely different purpose of
determining when a nontestifying codefendant’s confession, redacted
to remove all mention of the defendant, could be admitted into
evidence with instruction for the jury not to consider the
confession as evidence against the nonconfessor. The very premise
of the case was that, without the limiting instruction even
admission of a redacted confession containing evidence of the
latter sort would have violated the defendant’s Sixth
Amendment rights. See id. , at 190–191. Footnote
5 Though surely not always.
Some forensic analyses, such as autopsies and breathalyzer tests,
cannot be repeated, and the specimens used for other analyses have
often been lost or degraded. Footnote
6 Contrary to the dissent’s
suggestion, post, at 23, we do not “rel[y] in such great
measure” on the deficiencies of crime-lab analysts shown by this
report to resolve the constitutional question presented in this
case. The analysts who swore the affidavits provided testimony
against Melendez-Diaz, and they are therefore subject to
confrontation; we would reach the same conclusion if all analysts
always possessed the scientific acumen of Mme. Curie and the
veracity of Mother Theresa. We discuss the report only to refute
the suggestion that this category of evidence is uniquely reliable
and that cross-examination of the analysts would be an empty
formalism. Footnote
7 The early common-law cases
likewise involve records prepared for the administration of an
entity’s affairs, and not for use in litigation. See, e.g., King v. Rhodes , 1 Leach 24, 168
Eng. Rep. 115 (1742) (admitting into evidence ship’s muster-book); King v. Martin , 2 Camp. 100, 101, 170 Eng. Rep.
1094, 1095 (1809) (vestry book); King v. Aickles ,
1 Leach 390, 391–392, 168 Eng. Rep. 297, 298 (1785) (prison
logbook). Footnote
8 The dissent’s reliance on
our decision in Dowdell v. United States , 221 U. S. 325 (1911), see post , at 20 (opinion of Kennedy, J.), is
similarly misplaced. As the opinion stated in Dowdell —and
as this Court noted in Davis v. Washington , 547 U. S. 813 , 825 (2006)—the judge
and clerk who made the statements at issue in Dowdell were
not witnesses for purposes of the Confrontation Clause because
their statements concerned only the conduct of defendants’ prior
trial, not any facts regarding defendants’ guilt or innocence. 221
U. S., at 330–331. Footnote
9 An earlier line of 19th
century state-court cases also supports the notion that forensic
analysts’ certificates were not admitted into evidence as public or
business records. See Commonwealth v. Waite , 93
Mass. 264, 266 (1865); Shivers v. Newton , 45
N. J. L. 469, 476 (Sup. Ct. 1883); State v. Campbell , 64 N. H. 402, 403, 13 A. 585, 586 (1888).
In all three cases, defendants—who were prosecuted for selling
adulterated milk—objected to the admission of the state chemists’
certificates of analysis. In all three cases, the objection was
defeated because the chemist testified live at trial. That the
prosecution came forward with live witnesses in all three cases
suggests doubt as to the admissibility of the certificates without
opportunity for cross-examination. Footnote
10 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. Footnote
11 State v. Johnson , 982 So. 2d 672, 680–681 (Fla. 2008); Hinojos-Mendoza v. People , 169 P. 3d 662, 666–667
(Colo. 2007); State v. Birchfield , 342 Ore. 624,
631–632, 157 P. 3d 216, 220 (2007); State v. March , 216 S. W. 3d 663, 666–667 (Mo. 2007); Thomas v. United States , 914 A. 2d 1, 12–13 (D.
C. 2006); State v. Caulfield , 722 N. W. 2d 304,
310 (Minn. 2006); Las Vegas v. Walsh , 121 Nev.
899, 904–906, 124 P. 3d 203, 207–208 (2005); People v. McClanahan , 191 Ill. 2d 127, 133–134, 729 N. E. 2d 470,
474–475 (2000); Miller v. State , 266 Ga. 850,
854–855, 472 S. E. 2d 74, 78–79 (1996); Barnette v. State , 481 So. 2d 788, 792 (Miss. 1985). Footnote
12 As the dissent notes, post , at 27, some state statutes, “requir[e]
defense counsel to subpoena the analyst, to show good cause for
demanding the analyst’s presence, or even to affirm under oath an
intent to cross-examine the analyst.” We have no occasion today to
pass on the constitutionality of every variety of statute commonly
given the notice-and-demand label. It suffices to say that what we
have referred to as the “simplest form [of] notice-and-demand
statutes,” supra, at 21, is constitutional; that such
provisions are in place in a number of States; and that in those
States, and in other States that require confrontation without
notice-and-demand, there is no indication that the dire
consequences predicted by the dissent have materialized. Footnote
13 Contrary to the dissent’s
suggestion, post , at 24–25, we do not cast aspersions on
trial judges, who we trust will not be antagonized by good-faith
requests for analysts’ appearance at trial. Nor do we expect
defense attorneys to refrain from zealous representation of their
clients. We simply do not expect defense attorneys to believe that
their clients’ interests (or their own) are furthered by objections
to analysts’ reports whose conclusions counsel have no intention of
challenging. Footnote
14 We of course express no
view as to whether the error was harmless. The Massachusetts Court
of Appeals did not reach that question and we decline to address it
in the first instance. Cf. Coy v. Iowa , 487 U. S. 1012 , 1021–1022 (1988). In
connection with that determination, however, we disagree with the
dissent’s contention, post , at 25, that “only an analyst’s
testimony suffices to prove [the] fact” that “the substance is
cocaine.” Today’s opinion, while insisting upon retention of the
confrontation requirement, in no way alters the type of evidence
(including circumstantial evidence) sufficient to sustain a
conviction. 557 U. S. ____ (2009) 557 U. S. ____ (2009) 557 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 07-591 LUIS E. MELENDEZ-DIAZ, PETITIONER v. MASSACHUSETTS

															on writ of certiorari to the appeals court of
massachusetts

															[June 25, 2009]

															   Justice Thomas, concurring.

															   I write separately to note that I
continue to adhere to my 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.” White v. Illinois , 502 U. S. 346 , 365
(1992) (opinion concurring in part and concurring in judgment); see
also Giles v. California , 554 U. S. ___, ___
(2008) (slip op., at 1) (concurring opinion) (characterizing
statements within the scope of the Confrontation Clause to include
those that are “sufficiently formal to resemble the Marian
examinations” because they were Mirandized or custodial or
“accompanied by [a] similar indicia of formality” (internal
quotation marks omitted)); Davis v. Washington , 547 U. S. 813 ,
836 (2006) (opinion concurring in judgment in part and dissenting
in part) (reiterating that the Clause encompasses extrajudicial
statements contained in the types of formalized materials listed in White , supra , at 365. I join the Court’s opinion
in this case because the documents at issue in this case “are quite
plainly affidavits,” ante , at 4. As such, they “fall
within the core class of testimonial statements” governed by the
Confrontation Clause. Ibid. (internal quotation marks
omitted). KENNEDY, J., DISSENTING MELENDEZ-DIAZ V. MASSACHUSETTS 557 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 07-591 LUIS E. MELENDEZ-DIAZ, PETITIONER v. MASSACHUSETTS

															on writ of certiorari to the appeals court of
massachusetts

															[June 25, 2009]

															   Justice Kennedy, with whom The
Chief Justice, Justice Breyer, and Justice Alito join,
dissenting.

															   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. Yet the Court undoes it
based on two recent opinions that say nothing about forensic
analysts: Crawford v. Washington , 541 U. S. 36 (2004), and Davis v. Washington , 547 U. S. 813 (2006).

															   It is remarkable that the Court so confidently
disregards a century of jurisprudence. We learn now that we have
misinterpreted the Confrontation Clause—hardly an arcane or
seldom-used provision of the Constitution—for the first 218 years
of its existence. The immediate systemic concern is that the Court
makes no attempt to acknowledge the real differences between
laboratory analysts who perform scientific tests and other, more
conventional witnesses—“witnesses” being the word the

															Framers used in the Confrontation Clause. 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.

															   Because Crawford and Davis concerned typical witnesses, the Court should have done the
sensible thing and limited its holding to witnesses as so defined.
Indeed, as Justice Thomas warned in his opinion in Davis ,
the Court’s approach has become “disconnected from history and
unnecessary to prevent abuse.” 547 U. S., at 838. The Court’s
reliance on the word “testimonial” is of little help, of course,
for that word does not appear in the text of the Clause.

															   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. For these reasons, as more fully explained below, the
Court’s opinion elicits my respectful dissent. I A 1 The Court says that,
before the results of a scientific test may be introduced into
evidence, the defendant has the right to confront the “analyst.” Ante , at 4–5. One must assume that this term, though it
appears nowhere in the Confrontation Clause, nevertheless has some
constitutional substance that now must be elaborated in future
cases. There is no accepted definition of analyst, and there is no
established precedent to define that term. Consider how many
people play a role in a routine test for the presence of illegal
drugs. One person prepares a sample of the drug, places it in a
testing machine, and retrieves the machine’s printout—often, a
graph showing the frequencies of radiation absorbed by the sample
or the masses of the sample’s molecular fragments. See 2 P.
Giannelli & E. Imwinkelried, Scientific Evidence §23.03 (4th
ed. 2007) (describing common methods of identifying drugs,
including infrared spectrophotometry, nuclear magnetic resonance,
gas chromatography, and mass spectrometry). A second person
interprets the graph the machine prints out—perhaps by comparing
that printout with published, standardized graphs of known drugs. Ibid . Meanwhile, a third person—perhaps an independent
contractor—has calibrated the machine and, having done so, has
certified that the machine is in good working order. Finally, a
fourth person—perhaps the laboratory’s director—certifies that his
subordinates followed established procedures. It is not at all evident which of
these four persons is the analyst to be confronted under the rule
the Court announces today. If all are witnesses who must appear for
in-court confrontation, then the Court has, for all practical
purposes, forbidden the use of scientific tests in criminal trials.
As discussed further below, requiring even one of these individuals
to testify threatens to disrupt if not end many prosecutions where
guilt is clear but a newly found formalism now holds sway. See Part
I–C, infra . It is possible to read the Court’s
opinion, however, to say that all four must testify. Each one has
contributed to the test’s result and has, at least in some
respects, made a representation about the test. Person One
represents that a pure sample, properly drawn, entered the machine
and produced a particular printout. Person Two represents that the
printout corresponds to a known drug. Person Three represents that
the machine was properly calibrated at the time. Person Four
represents that all the others performed their jobs in accord with
established procedures. And each of the four has power to
introduce error. A laboratory technician might adulterate the
sample. The independent contractor might botch the machine’s
calibration. And so forth. The reasons for these errors may range
from animus against the particular suspect or all criminal suspects
to unintentional oversight; from gross negligence to good-faith
mistake. It is no surprise that a plausible case can be made for
deeming each person in the testing process an analyst under the
Court’s opinion. Consider the independent
contractor who has calibrated the testing machine. At least in a
routine case, where the machine’s result appears unmistakable, that
result’s accuracy depends entirely on the machine’s calibration.
The calibration, in turn, can be proved only by the contractor’s
certification that he or she did the job properly. That
certification appears to be a testimonial statement under the
Court’s definition: It is a formal, out-of-court statement, offered
for the truth of the matter asserted, and made for the purpose of
later prosecution. See ante , at 3–5. It is not clear,
under the Court’s ruling, why the independent contractor is not
also an analyst. Consider the person who interprets
the machine’s printout. His or her interpretation may call for the
exercise of professional judgment in close cases. See Giannelli
& Imwinkelried, supra . If we assume no person
deliberately introduces error, this interpretive step is the one
most likely to permit human error to affect the test’s result. This
exercise of judgment might make this participant an analyst. The
Court implies as much. See ante , at 12–14. And we must yet consider the
laboratory director who certifies the ultimate results. The
director is arguably the most effective person to confront for
revealing any ambiguity in findings, variations in procedures, or
problems in the office, as he or she is most familiar with the
standard procedures, the office’s variations, and problems in prior
cases or with particular analysts. The prosecution may seek to
introduce his or her certification into evidence. The Court implies
that only those statements that are actually entered into evidence
require confrontation. See ante , at 4–5. This could mean
that the director is also an analyst, even if his or her
certification relies upon or restates work performed by
subordinates. The Court offers no principles or
historical precedent to determine which of these persons is the
analyst. All contribute to the test result. And each is equally
remote from the scene, has no personal stake in the outcome, does
not even know the accused, and is concerned only with the
performance of his or her role in conducting the test. It could be argued that the only
analyst who must testify is the person who signed the certificate.
Under this view, a laboratory could have one employee sign
certificates and appear in court, which would spare all the other
analysts this burden. But the Court has already rejected this
arrangement. The Court made clear in Davis that it will
not permit the testimonial statement of one witness to enter into
evidence through the in-court testimony of a second: “[W]e do not think it conceivable that
the protections of the Confrontation Clause can readily be evaded
by having a note-taking policeman [here, the laboratory employee
who signs the certificate] recite the unsworn hearsay
testimony of the declarant [here, the analyst who performs the
actual test], instead of having the declarant sign a deposition.
Indeed, if there is one point for which no case—English or early
American, state or federal—can be cited, that is it.” 547 U. S., at
826. Under this logic, the Court’s holding
cannot be cabined to the person who signs the certificates. If the
signatory is restating the testimonial statements of the true
analysts—whoever they might be—then those analysts, too, must
testify in person. Today’s decision demonstrates that
even in the narrow category of scientific tests that identify a
drug, the Court cannot define with any clarity who the analyst is.
Outside this narrow category, the range of other scientific tests
that may be affected by the Court’s new confrontation right is
staggering. See, e.g. , Comment, Toward a Definition of
“Testimonial”: How Autopsy Reports Do Not Embody the Qualities of a
Testimonial Statement, 96 Cal. L. Rev. 1093, 1094, 1115 (2008)
(noting that every court post- Crawford has held that
autopsy reports are not testimonial, and warning that a contrary
rule would “effectively functio[n] as a statute of limitations for
murder”). 2 It is difficult to
confine at this point the damage the Court’s holding will do in
other contexts. Consider just two—establishing the chain of custody
and authenticating a copy of a document. It is the obligation
of the prosecution to establish the chain of custody for evidence
sent to testing laboratories—that is, to establish “the identity
and integrity of physical evidence by tracing its continuous
whereabouts.” 23 C. J. S., Criminal Law §1142, p. 66
(2008). Meeting this obligation requires representations—that one
officer retrieved the evidence from the crime scene, that a second
officer checked it into an evidence locker, that a third officer
verified the locker’s seal was intact, and so forth. The iron logic
of which the Court is so enamored would seem to require in-court
testimony from each human link in the chain of custody. That, of
course, has never been the law. See, e.g. , United
States v. Lott , 854 F. 2d 244, 250 (CA7 1988)
(“[G]aps in the chain [of custody] normally go to the weight of the
evidence rather than its admissibility”); 29A Am. Jur. 2d, Evidence
§962, p. 269 (2009) (“The fact that one of the persons in control
of a fungible substance does not testify at trial does not, without
more, make the substance or testimony relating to it
inadmissible”); C. J. S., supra , §1142, at 67
(“It is generally not necessary that every witness who handled the
evidence testify”). It is no answer for the Court to
say that “[i]t is up to the prosecution to decide what steps in the
chain of custody are so crucial as to require evidence.” Ante , at 5, n. 1. The case itself determines which
links in the chain are crucial—not the prosecution. In any number
of cases, the crucial link in the chain will not be available to
testify and so the evidence will be excluded for lack of a proper
foundation. Consider another context in which
the Court’s holding may cause disruption: The long-accepted
practice of authenticating copies of documents by means of a
certificate from the document’s custodian stating that the copy is
accurate. See, e.g. , Fed. Rule Evid. 902(4) (in order to
be self-authenticating, a copy of a public record must be
“certified as correct by the custodian”); Rule 902(11) (business
record must be “accompanied by a written declaration of its
custodian”). Under one possible reading of the Court’s opinion,
recordkeepers will be required to testify. So far, courts have not
read Crawford and Davis to impose this largely
meaningless requirement. See, e.g. , United States v. Adefehinti , 510 F. 3d 319, 327–328 (CADC 2008)
(certificates authenticating bank records may be admitted without
confrontation); United States v. Ellis , 460
F. 3d 920, 927 (CA7 2006) (certificate authenticating hospital
records). But the breadth of the Court’s ruling today, and its
undefined scope, may well be such that these courts now must be
deemed to have erred. The risk of that consequence ought to tell us
that something is very wrong with the Court’s analysis. Because the Court is driven by
nothing more than a wooden application of the Crawford and Davis definition of “testimonial,” divorced from any
guidance from history, precedent, or common sense, there is no way
to predict the future applications of today’s holding. Surely part
of the justification for the Court’s formalism must lie in its
predictability. There is nothing predictable here, however, other
than the uncertainty and disruption that now must ensue. B With no precedent to
guide us, let us assume that the Court’s analyst is the person who
interprets the machine’s printout. This result makes no sense. The
Confrontation Clause is not designed, and does not serve, to detect
errors in scientific tests. That should instead be done by
conducting a new test. Or, if a new test is impossible, the
defendant may call his own expert to explain to the jury the test’s
flaws and the dangers of relying on it. And if, in an
extraordinary case, the particular analyst’s testimony is necessary
to the defense, then, of course, the defendant may subpoena the
analyst. The Court frets that the defendant may be unable to do so
“when the [analyst] is unavailable or simply refuses to appear.” Ante , at 19. But laboratory analysts are not difficult to
locate or to compel. As discussed below, analysts already devote
considerable time to appearing in court when subpoenaed to do so.
See Part I–C, infra; see also Brief for State of Alabama
et al. as Amici Curiae 26–28. Neither the Court,
petitioner, nor amici offer any reason to believe that
defendants have trouble subpoenaing analysts in cases where the
analysts’ in-court testimony is necessary. The facts
of this case illustrate the formalistic and pointless nature of the
Court’s reading of the Clause. Petitioner knew, well in advance of
trial, that the Commonwealth would introduce the tests against him.
The bags of cocaine were in court, available for him to test, and
entered into evidence. Yet petitioner made no effort, before or
during trial, to mount a defense against the analysts’ results.
Petitioner could have challenged the tests’ reliability by seeking
discovery concerning the testing methods used or the qualifications
of the laboratory analysts. See Mass. Rule Crim.
Proc. 14(a)(2) (2009). He did not do so. Petitioner could have
sought to conduct his own test. See Rule 41. Again, he did not seek
a test; indeed, he did not argue that the drug was not cocaine.
Rather than dispute the authenticity of the samples tested or the
accuracy of the tests performed, petitioner argued to the jury that
the prosecution had not shown that he had possessed or dealt in the
drugs. Despite not having
prepared a defense to the analysts’ results, petitioner’s counsel
made what can only be described as a pro forma objection
to admitting the results without in-court testimony, presumably
from one particular analyst. Today the Court, by deciding that this
objection should have been sustained, transforms the Confrontation
Clause from a sensible procedural protection into a distortion of
the criminal justice system. It is difficult to
perceive how the Court’s holding will advance the purposes of the
Confrontation Clause. One purpose of confrontation is to impress
upon witnesses the gravity of their conduct. See Coy v. Iowa , 487
U. S. 1012 , 1019–1020 (1988). A witness, when brought to face
the person his or her words condemn, might refine, reformulate,
reconsider, or even recant earlier statements. See ibid . A
further purpose is to alleviate the danger of one-sided
interrogations by adversarial government officials who might
distort a witness’s testimony. The Clause guards against this
danger by bringing the interrogation into the more neutral and
public forum of the courtroom. See Maryland v. Craig , 497
U. S. 836 , 869–870 (1990) (Scalia, J., dissenting) (discussing
the “value of the confrontation right in guarding against a child’s
distorted or coerced recollections”); see also 96 Cal.
L. Rev., supra , at 1120–1122 (“During private
law-enforcement questioning, police officers or prosecutors can
exert pressure on the witness without a high risk of being
discovered. Courtroom questioning, in contrast, is public and
performed in front of the jury, judge and defendant. Pressure is
therefore harder to exert in court”). But neither purpose is
served by the rule the Court announces today. It is not plausible
that a laboratory analyst will retract his or her prior conclusion
upon catching sight of the defendant the result condemns. After
all, the analyst is far removed from the particular defendant and,
indeed, claims no personal knowledge of the defendant’s guilt. And
an analyst performs hundreds if not thousands of tests each year
and will not remember a particular test or the link it had to the
defendant. This is not to say
that analysts are infallible. They are not. It may well be that if
the State does not introduce the machine printout or the raw
results of a laboratory analysis; if it does not call an expert to
interpret a test, particularly if that test is complex or little
known; if it does not establish the chain of custody and the
reliability of the laboratory; then the State will have failed to
meet its burden of proof. That result follows because the State
must prove its case beyond a reasonable doubt, without relying on
presumptions, unreliable hearsay, and the like. See United
States v. United States Gypsum Co. , 438 U. S. 422 , 446
(1978) (refusing to permit a “ ‘conclusive presumption [of
intent],’ ” which “ ‘would effectively eliminate intent
as an ingredient of the offense’ ” (quoting Morissette v. United States , 342 U. S. 246 , 274–275
(1952)). The State must permit the defendant to challenge the
analyst’s result. See Holmes v. South Carolina , 547 U. S. 319 ,
331 (2006) (affirming the defendant’s right to “have a meaningful
opportunity to present a complete defense” (internal quotation
marks omitted)). The rules of evidence, including those governing
reliability under hearsay principles and the latitude to be given
expert witnesses; the rules against irrebutable presumptions; and
the overriding principle that the prosecution must make its case
beyond a reasonable doubt—all these are part of the protections for
the accused. The States, however, have some latitude in determining
how these rules should be defined. The Confrontation
Clause addresses who must testify. It simply does not follow,
however, that this clause, in lieu of the other rules set forth
above, controls who the prosecution must call on every issue.
Suppose, for instance, that the defense challenges the procedures
for a secure chain of custody for evidence sent to a lab and then
returned to the police. The defense has the right to call its own
witnesses to show that the chain of custody is not secure. But that
does not mean it can demand that, in the prosecution’s case in
chief, each person who is in the chain of custody—and who had an
undoubted opportunity to taint or tamper with the evidence—must be
called by the prosecution under the Confrontation Clause. And the
same is true with lab technicians. The Confrontation
Clause is simply not needed for these matters. Where, as here, the
defendant does not even dispute the accuracy of the analyst’s work,
confrontation adds nothing. C For the
sake of these negligible benefits, the Court threatens to disrupt
forensic investigations across the country and to put prosecutions
nationwide at risk of dismissal based on erratic, all-too-frequent
instances when a particular laboratory technician, now invested by
the Court’s new constitutional designation as the analyst, simply
does not or cannot appear. Consider
first the costs today’s decision imposes on criminal trials. Our
own Court enjoys weeks, often months, of notice before cases are
argued. We receive briefs well in advance. The argument itself is
ordered. A busy trial court, by contrast, must consider not only
attorneys’ schedules but also those of witnesses and juries. Trial
courts have huge caseloads to be processed within strict time
limits. Some cases may unexpectedly plead out at the last minute;
others, just as unexpectedly, may not. Some juries stay out longer
than predicted; others must be reconstituted. An analyst cannot
hope to be the trial court’s top priority in scheduling. The
analyst must instead face the prospect of waiting for days in a
hallway outside the courtroom before being called to offer
testimony that will consist of little more than a rote recital of
the written report. See Part I–B, supra . As matters stood
before today’s opinion, analysts already spent considerable time
appearing as witnesses in those few cases where the defendant,
unlike petitioner in this case, contested the analyst’s result and
subpoenaed the analyst. See Brief for Alabama et al. as Amici Curiae 26–28 (testifying takes time); ante ,
at 23 (before today’s opinion, it was “ ‘almost always the
case that analysts’ certificates [we]re admitted without
objection’ ” in Massachusetts courts). By requiring analysts
also to appear in the far greater number of cases where defendants
do not dispute the analyst’s result, the Court imposes enormous
costs on the administration of justice. Setting
aside, for a moment, all the other crimes for which scientific
evidence is required, consider the costs the Court’s ruling will
impose on state drug prosecutions alone. In 2004, the most recent
year for which data are available, drug possession and trafficking
resulted in 362,850 felony convictions in state courts across the
country. See Dept. of Justice, Bureau of Justice Statistics, M.
Durose & P. Langan, Felony Sentences in State Courts 2004, p. 2
(July 2007). Roughly 95% of those convictions were products of plea
bargains, see id. , at 1, which means that state courts saw
more than 18,000 drug trials in a single year. The
analysts responsible for testing the drugs at issue in those cases
now bear a crushing burden. For example, the district attorney in
Philadelphia prosecuted 25,000 drug crimes in 2007. Brief for
National Dist. Attorneys Association et al. as Amici Curiae 12–13. Assuming that number remains the same, and
assuming that 95% of the cases end in a plea bargain, each of the
city’s 18 drug analysts, ibid ., will be required to
testify in more than 69 trials next year. Cleveland’s district
attorney prosecuted 14,000 drug crimes in 2007. Ibid. Assuming that number holds, and that 95% of the cases end in a plea
bargain, each of the city’s 6 drug analysts (two of whom work only
part time) must testify in 117 drug cases next year. Id. ,
at 13. The Federal Government
may face even graver difficulties than the States because its
operations are so widespread. For example, the FBI laboratory at
Quantico, Virginia, supports federal, state, and local
investigations across the country. Its 500 employees conduct over
one million scientific tests each year. Dept. of Justice, FBI
Laboratory 2007, Message from the FBI Laboratory Director,
http://www.fbi.gov/hq/lab/lab2007/labannual07.pdf (as visited June
22, 2009, and available in Clerk of Court’s case file). 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. The Court purchases
its meddling with the Confrontation Clause at a dear price, a price
not measured in taxpayer dollars alone. Guilty defendants will go
free, on the most technical grounds, as a direct result of today’s
decision, adding nothing to the truth-finding process. The analyst
will not always make it to the courthouse in time. He or she may be
ill; may be out of the country; may be unable to travel because of
inclement weather; or may at that very moment be waiting outside
some other courtroom for another defendant to exercise the right
the Court invents today. If for any reason the analyst cannot make
it to the courthouse in time, then, the Court holds, the jury
cannot learn of the analyst’s findings (unless, by some unlikely
turn of events, the defendant previously cross-examined the
analyst). Ante , at 3. The result, in many cases, will be
that the prosecution cannot meet its burden of proof, and the
guilty defendant goes free on a technicality that, because it
results in an acquittal, cannot be reviewed on
appeal. The
Court’s holding is a windfall to defendants, one that is
unjustified by any demonstrated deficiency in trials, any
well-understood historical requirement, or any established
constitutional precedent. II All of
the problems with today’s decision—the imprecise definition of
“analyst,” the lack of any perceptible benefit, the heavy societal
costs—would be of no moment if the Constitution did, in fact,
require the Court to rule as it does today. But the Constitution
does not. The
Court’s fundamental mistake is to read the Confrontation Clause as
referring to a kind of out-of-court statement—namely, a testimonial
statement—that must be excluded from evidence. The Clause does not
refer to kinds of statements. Nor does the Clause contain the word
“testimonial.” The text, instead, refers to kinds of persons,
namely, to “witnesses against” the defendant. Laboratory analysts
are not “witnesses against” the defendant as those words would have
been understood at the framing. There is simply no authority for
this proposition. Instead, the Clause
refers to a conventional “witness”—meaning one who witnesses (that
is, perceives) an event that gives him or her personal knowledge of
some aspect of the defendant’s guilt. Both Crawford and Davis concerned just this kind of ordinary witness—and
nothing in the Confrontation Clause’s text, history, or precedent
justifies the Court’s decision to expand those
cases. A The
Clause states: “In all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against
him.” U. S. Const., Amdt. 6. Though there is “virtually no evidence
of what the drafters of the Confrontation Clause intended it to
mean,” White v. Illinois , 502 U. S. 346 , 359
(1992) (Thomas, J., concurring in part and concurring in judgment),
it is certain the Framers did not contemplate that an analyst who
conducts a scientific test far removed from the crime would be
considered a “witnes[s] against” the defendant. The
Framers were concerned with a typical witness—one who perceived an
event that gave rise to a personal belief in some aspect of the
defendant’s guilt. There is no evidence that the Framers understood
the Clause to extend to unconventional witnesses. As discussed
below, there is significant evidence to the contrary. See Part
II–B, infra . In these circumstances, the historical
evidence in support of the Court’s position is “ ‘too
meager … to form a solid basis in history, preceding and
contemporaneous with the framing of the Constitution.’ ” Boumediene v. Bush , 553 U. S. ___, ___ (2008)
(slip op., at 22) (quoting Reid v. Covert , 354 U. S. 1 , 64
(1957) (Frankfurter, J., concurring in result)). The Court goes
dangerously wrong when it bases its constitutional interpretation
upon historical guesswork. The infamous treason
trial of Sir Walter Raleigh provides excellent examples of the
kinds of witnesses to whom the Confrontation Clause refers. Raleigh’s Case , 2 How. St. Tr. 1 (1603); see Crawford , 541 U. S., at 44–45 (Raleigh’s trial informs our
understanding of the Clause because it was, at the time of the
framing, one of the “most notorious instances” of the abuse of
witnesses’ out-of-court statements); ante , at 9 (same).
Raleigh’s accusers claimed to have heard Raleigh speak treason, so
they were witnesses in the conventional sense. We should limit the
Confrontation Clause to witnesses like those in Raleigh’s
trial. The Court today
expands the Clause to include laboratory analysts, but analysts
differ from ordinary witnesses in at least three significant ways.
First, a conventional witness recalls events observed in the past,
while an analyst’s report contains near-contemporaneous
observations of the test. An observation recorded at the time it is
made is unlike the usual act of testifying. A typical witness must
recall a previous event that he or she perceived just once, and
thus may have misperceived or misremembered. But an analyst making
a contemporaneous observation need not rely on memory; he or she
instead reports the observations at the time they are made. We gave
this consideration substantial weight in Davis . There, the
“primary purpose” of the victim’s 911 call was “to enable police
assistance to meet an ongoing emergency,” rather than “to establish
or prove past events potentially relevant to later criminal
prosecution.” 547 U. S., at 822, 827. See also People v. Geier , 41 Cal. 4th 555, 605–609, 161 P. 3d 104,
139–141 (2007). The Court cites no authority for its holding that
an observation recorded at the time it is made is an act of
“witness[ing]” for purposes of the Confrontation
Clause. Second, an analyst
observes neither the crime nor any human action related to it.
Often, the analyst does not know the defendant’s identity, much
less have personal knowledge of an aspect of the defendant’s guilt.
The analyst’s distance from the crime and the defendant, in both
space and time, suggests the analyst is not a witness against the
defendant in the conventional sense. Third, a conventional
witness responds to questions under interrogation. See, e.g. , Raleigh’s Case , supra , at 15–20.
But laboratory tests are conducted according to scientific
protocols; they are not dependent upon or controlled by
interrogation of any sort. Put differently, out-of-court statements
should only “require confrontation if they are produced by, or with
the involvement of, adversarial government officials responsible
for investigating and prosecuting crime.” 96 Cal. L. Rev., at
1118. There is no indication that the analysts here—who work for
the State Laboratory Institute, a division of the Massachusetts
Department of Public Health—were adversarial to petitioner. Nor is
there any evidence that adversarial officials played a role in
formulating the analysts’ certificates. Rather than
acknowledge that it expands the Confrontation Clause beyond
conventional witnesses, the Court relies on our recent opinions in Crawford and Davis . Ante , at 3–5. The
Court assumes, with little analysis, that Crawford and Davis extended the Clause to any person who makes a
“testimonial” statement. But the Court’s confident tone cannot
disguise the thinness of these two reeds. Neither Crawford nor Davis considered whether the Clause extends to persons
far removed from the crime who have no connection to the defendant.
Instead, those cases concerned conventional witnesses. Davis , supra , at 826–830 (witnesses were victims
of defendants’ assaults); Crawford , supra , at 38
(witness saw defendant stab victim). It is true that Crawford and Davis employed the term
“testimonial,” and thereby suggested that any testimonial
statement, by any person, no matter how distant from the defendant
and the crime, is subject to the Confrontation Clause. But that
suggestion was not part of the holding of Crawford or Davis . Those opinions used the adjective “testimonial” to
avoid the awkward phrasing required by reusing the noun “witness.”
The Court today transforms that turn of phrase into a new and
sweeping legal rule, by holding that anyone who makes a formal
statement for the purpose of later prosecution—no matter how
removed from the crime—must be considered a “witness against” the
defendant. Ante , at 3–5. The Court cites no authority to
justify this expansive new interpretation. B No
historical evidence supports the Court’s conclusion that the
Confrontation Clause was understood to extend beyond conventional
witnesses to include analysts who conduct scientific tests far
removed from the crime and the defendant. Indeed, what little
evidence there is contradicts this
interpretation. Though
the Framers had no forensic scientists, they did use another kind
of unconventional witness—the copyist. A copyist’s work may be as
essential to a criminal prosecution as the forensic analyst’s. To
convict a man of bigamy, for example, the State often requires his
marriage records. See, e.g. , Williams v. State , 54 Ala. 131, 134, 135 (1875); State v. Potter , 52 Vt. 33, 38 (1879). But if the original records
cannot be taken from the archive, the prosecution must rely on
copies of those records, made for the purpose of introducing the
copies into evidence at trial. See ibid . In that case, the
copyist’s honesty and diligence are just as important as the
analyst’s here. If the copyist falsifies a copy, or even misspells
a name or transposes a date, those flaws could lead the jury to
convict. Because so much depends on his or her honesty and
diligence, the copyist often prepares an affidavit certifying that
the copy is true and accurate. Such a certificate is
beyond question a testimonial statement under the Court’s
definition: It is a formal out-of-court statement offered for the
truth of two matters (the copyist’s honesty and the copy’s
accuracy), and it is prepared for a criminal prosecution. During the Framers’
era copyists’ affidavits were accepted without hesitation by
American courts. See, e.g. , United States v. Percheman , 7 Pet. 51, 85 (1833) (opinion for the Court by
Marshall, C. J.); see also Advisory Committee’s Note on Fed.
Rule Evid. 902(4), 28 U. S. C. App., p. 390 (“The common
law … recognized the procedure of authenticating copies
of public records by certificate”); 5 J. Wigmore, Evidence §§1677,
1678 (J. Chadbourn rev. 1974). And courts admitted copyists’
affidavits in criminal as well as civil trials. See Williams , supra; Potter , supra .
This demonstrates that the framing generation, in contrast to the
Court today, did not consider the Confrontation Clause to require
in-court confrontation of unconventional authors of testimonial
statements. The Court attempts to
explain away this historical exception to its rule by noting that a
copyist’s authority is “narrowly circumscribed.” Ante , at
16. But the Court does not explain why that matters, nor, if it
does matter, why laboratory analysts’ authority should not also be
deemed “narrowly circumscribed” so that they, too, may be excused
from testifying. And drawing these fine distinctions cannot be
squared with the Court’s avowed allegiance to formalism.
Determining whether a witness’ authority is “narrowly
circumscribed” has nothing to do with Crawford ’s
testimonial framework. It instead appears much closer to the
pre- Crawford rule of Ohio v. Roberts ,
under which a statement could be admitted without testimony if it
“bears adequate indicia of reliability.” 448 U. S., at 66 (internal
quotation marks omitted). In keeping with the
traditional understanding of the Confrontation Clause, this Court
in Dowdell v. United States , 221 U. S. 325 (1911),
rejected a challenge to the use of certificates, sworn out by a
clerk of court, a trial judge, and a court reporter, stating that
defendants had been present at trial. Those certificates, like a
copyist’s certificate, met every requirement of the Court’s current
definition of “testimonial.” In rejecting the defendants’ claim
that use of the certificates violated the Confrontation Clause, the
Court in Dowdell explained that the officials who executed
the certificates “were not witnesses against the accused” because
they “were not asked to testify to facts concerning [the
defendants’] guilt or innocence.” Id. , at 330. Indeed, as
recently as Davis , the Court reaffirmed Dowdell .
547 U. S., at 825. By
insisting that every author of a testimonial statement appear for
confrontation, on pain of excluding the statement from evidence,
the Court does violence to the Framers’ sensible, and limited,
conception of the right to confront “witnesses against” the
defendant. C In
addition to lacking support in historical practice or in this
Court’s precedent, the Court’s decision is also contrary to
authority extending over at least 90 years, 35 States, and six
Federal Courts of Appeals. Almost
100 years ago three state supreme courts held that their state
constitutions did not require analysts to testify in court. In a
case much like this one, the Massachusetts Supreme Judicial Court
upheld the admission of a certificate stating that the liquid
seized from the defendant contained alcohol, even though the author
of the certificate did not testify. Commonwealth v. Slavski , 245 Mass. 405, 413, 140 N. E. 465, 467
(1923). The highest courts in Connecticut and Virginia reached
similar conclusions under their own constitutions. State v. Torello , 103 Conn. 511, 131 A. 429 (1925); Bracey v. Commonwealth , 119 Va. 867, 89
S. E. 144 (1916). Just two state courts appear to have read a
state constitution to require a contrary result. State v. Clark , 290 Mont. 479, 484–489, 964 P. 2d 766, 770–772
(1998) (laboratory drug report requires confrontation under
Montana’s Constitution, which is “[u]nlike its federal
counterpart”); State v. Birchfield , 342 Ore. 624,
157 P. 3d 216 (2007), but see id. , at 631–632, 157
P. 3d, at 220 (suggesting that a “typical notice requirement”
would be lawful). As for the Federal
Constitution, before Crawford the authority was stronger
still: The Sixth Amendment does not require analysts to testify in
court. All Federal Courts of Appeals to consider the issue agreed. Sherman v. Scott , 62 F. 3d 136, 139–142 (CA5
1995); Minner v. Kerby , 30 F. 3d 1311,
1313–1315 (CA10 1994); United States v. Baker ,
855 F. 2d 1353, 1359–1360 (CA8 1988); Reardon v. Manson , 806 F. 2d 39 (CA2 1986); Kay v. United States , 255 F. 2d 476, 480–481 (CA4 1958); see
also Manocchio v. Moran , 919 F. 2d 770,
777–782 (CA1 1990) (autopsy report stating cause of victim’s
death). Some 24 state courts, and the Court of Appeals for the
Armed Forces, were in accord. See Appendix A, infra . (Some
cases cited in the appendixes concern doctors, coroners, and
calibrators rather than laboratory analysts, but their reasoning is
much the same.) Eleven more state courts upheld burden-shifting
statutes that reduce, if not eliminate, the right to confrontation
by requiring the defendant to take affirmative steps prior to trial
to summon the analyst. See ibid . Because these
burden-shifting statutes may be invalidated by the Court’s
reasoning, these 11 decisions, too, appear contrary to today’s
opinion. See Part III–B, infra . Most of the remaining
States, far from endorsing the Court’s view, appear not to have
addressed the question prior to Crawford . Against this
weight of authority, the Court proffers just two cases from
intermediate state courts of appeals. Ante , at
6–7. On a practical level,
today’s ruling would cause less disruption if the States’ hearsay
rules had already required analysts to testify. But few States
require this. At least sixteen state courts have held that their
evidentiary rules permit scientific test results, calibration
certificates, and the observations of medical personnel to enter
evidence without in-court testimony. See Appendix B, infra . The Federal Courts of Appeals have reached the same
conclusion in applying the federal hearsay rule. United
States v. Garnett , 122 F. 3d 1016, 1018–1019
(CA11 1997) (per curiam); United States v. Gilbert , 774 F. 2d 962, 965 (CA9 1985) (per
curiam); United States v. Ware , 247
F. 2d 698, 699–700 (CA7 1957); but see United States v. Oates , 560 F. 2d 45, 82 (CA2 1977) (report
prepared by law enforcement not admissible under public-records or
business-records exceptions to federal hearsay
rule). The modern trend in
the state courts has been away from the Court’s rule and toward the
admission of scientific test results without testimony—perhaps
because the States have recognized the increasing reliability of
scientific testing. See Appendix B, infra (citing cases
from three States overruling or limiting previous precedents that
had adopted the Court’s rule as a matter of state law). It appears
that a mere six courts continue to interpret their States’ hearsay
laws to require analysts to testify. See ibid . And, of
course, where courts have grounded their decisions in state law,
rather than the Constitution, the legislatures in those States have
had, until now, the power to abrogate the courts’ interpretation if
the costs were shown to outweigh the benefits. Today the Court
strips that authority from the States by carving the minority view
into the constitutional text. State legislatures,
and not the Members of this Court, have the authority to shape the
rules of evidence. The Court therefore errs when it relies in such
great measure on the recent report of the National Academy of
Sciences. Ante , at 12–14 (discussing National Research
Council of the National Academies, Strengthening Forensic Science
in the United States: A Path Forward (Prepublication Copy Feb.
2009)). That report is not directed to this Court, but rather to
the elected representatives in Congress and the state legislatures,
who, unlike Members of this Court, have the power and competence to
determine whether scientific tests are unreliable and, if so,
whether testimony is the proper solution to the
problem. The Court rejects the
well-established understanding—extending across at least 90 years,
35 States and six Federal Courts of Appeals—that the Constitution
does not require analysts to testify in court before their analysis
may be introduced into evidence. The only authority on which the
Court can rely is its own speculation on the meaning of the word
“testimonial,” made in two recent opinions that said nothing about
scientific analysis or scientific analysts. III In an
attempt to show that the “sky will not fall after today’s
decision,” ante , at 20, the Court makes three arguments,
none of which withstands scrutiny. A In an
unconvincing effort to play down the threat that today’s new rule
will disrupt or even end criminal prosecutions, the Court professes
a hope that defense counsel will decline to raise what will soon be
known as the Melendez-Diaz objection. Ante , at
22. The Court bases this expectation on its understanding that
defense attorneys surrender constitutional rights because the
attorneys do not “want to antagonize the judge or jury by wasting
their time.” Ibid. The
Court’s reasoning is troubling on at least two levels. First, the
Court’s speculation rests on the apparent belief that our Nation’s
trial judges and jurors are unwilling to accept zealous advocacy
and that, once “antagonize[d]” by it, will punish such advocates
with adverse rulings. Ibid . The Court offers no support for
this stunning slur on the integrity of the Nation’s courts. It is
commonplace for the defense to request, at the conclusion of the
prosecution’s opening case, a directed verdict of acquittal. If the
prosecution has failed to prove an element of the crime—even an
element that is technical and rather obvious, such as movement of a
car in interstate commerce—then the case must be dismissed. Until
today one would not have thought that judges should be angered at
the defense for making such motions, nor that counsel has some sort
of obligation to avoid being troublesome when the prosecution has
not done all the law requires to prove its case. Second, even if the
Court were right to expect trial judges to feel “antagonize[d]” by Melendez-Diaz objections and to then vent their anger by
punishing the lawyer in some way, there is no authority to support
the Court’s suggestion that a lawyer may shirk his or her
professional duties just to avoid judicial displeasure. There is
good reason why the Court cites no authority for this suggestion—it
is contrary to what some of us, at least, have long understood to
be defense counsel’s duty to be a zealous advocate for every
client. This Court has recognized the bedrock principle that a
competent criminal defense lawyer must put the prosecution to its
proof: “[T]he adversarial process
protected by the Sixth Amendment requires that the accused have
‘counsel acting in the role of an advocate.’ Anders v. California , 386 U. S. 738 , 743
(1967). The right to the effective assistance of counsel is thus
the right of the accused to require the prosecution’s case to
survive the crucible of meaningful adversarial testing. When a true
adversarial criminal trial has been conducted … the kind of testing
envisioned by the Sixth Amendment has occurred. But if the process
loses its character as a confrontation between adversaries, the
constitutional guarantee is violated.” United States v. Cronic , 466
U. S. 648 , 656–657 (1984) (footnotes
omitted). See also ABA Model Code of
Professional Responsibility, Canon 7–1, in ABA Compendium of
Professional Responsibility Rules and Standards (2008) (“The duty
of a lawyer, both to his client and to the legal system, is to
represent his client zealously within the bounds of the law …”
(footnotes omitted)). The instant case
demonstrates how zealous defense counsel will defend their clients.
To convict, the prosecution must prove the substance is cocaine.
Under the Court’s new rule, apparently only an analyst’s testimony
suffices to prove that fact. (Of course there will also be a large
universe of other crimes, ranging from homicide to robbery, where
scientific evidence is necessary to prove an element.) In cases
where scientific evidence is necessary to prove an element of the
crime, the Court’s rule requires the prosecution to call the person
identified as the analyst; this requirement has become a new
prosecutorial duty linked with proving the State’s case beyond a
reasonable doubt. Unless the Court is ashamed of its new rule, it
is inexplicable that the Court seeks to limit its damage by hoping
that defense counsel will be derelict in their duty to insist that
the prosecution prove its case. That is simply not the way the
adversarial system works. In any event, the
Court’s hope is sure to prove unfounded. The Court surmises that
“[i]t is unlikely that defense counsel will insist on live
testimony whose effect will be merely to highlight rather than cast
doubt upon the forensic analysis.” Ante , at 22. This
optimistic prediction misunderstands how criminal trials work. If
the defense does not plan to challenge the test result,
“highlight[ing]” that result through testimony does not harm the
defense as the Court supposes. If the analyst cannot reach the
courtroom in time to testify, however, a Melendez-Diaz objection grants the defense a great windfall: The analyst’s work
cannot come into evidence. Given the prospect of such a windfall
(which may, in and of itself, secure an acquittal) few zealous
advocates will pledge, prior to trial, not to raise a Melendez-Diaz objection. Defense counsel will accept the
risk that the jury may hear the analyst’s live testimony, in
exchange for the chance that the analyst fails to appear and the
government’s case collapses. And if, as here, the defense is not
that the substance was harmless, but instead that the accused did
not possess it, the testimony of the technician is a formalism that
does not detract from the defense case. In further support of
its unlikely hope, the Court relies on the Brief for Law Professors
as Amici Curiae 7–8, which reports that nearly
95% of convictions are obtained via guilty plea and thus do not
require in-court testimony from laboratory analysts. Ante ,
at 20. What the Court does not consider is how its holding will
alter these statistics. The defense bar today gains the formidable
power to require the government to transport the analyst to the
courtroom at the time of trial. Zealous counsel will insist upon
concessions: a plea bargain, or a more lenient sentence in exchange
for relinquishing this remarkable power. B As
further reassurance that the “sky will not fall after today’s
decision,” ante , at 20, the Court notes that many States
have enacted burden-shifting statutes that require the defendant to
assert his Confrontation Clause right prior to trial or else
“forfeit” it “by silence.” Ibid. The Court implies that by
shifting the burden to the defendant to take affirmative steps to
produce the analyst, these statutes reduce the burden on the
prosecution. The Court
holds that these burden-shifting statutes are valid because, in the
Court’s view, they “shift no burden whatever.” Ante, at
21. While this conclusion is welcome, the premise appears flawed.
Even what the Court calls the “simplest form” of burden-shifting
statutes do impose requirements on the defendant, who must make a
formal demand, with proper service, well before trial. Some
statutes impose more requirements, for instance by requiring
defense counsel to subpoena the analyst, to show good cause for
demanding the analyst’s presence, or even to affirm under oath an
intent to cross-examine the analyst. See generally Metzger,
Cheating the Constitution, 59 Vand. L. Rev. 475, 481–485
(2006). In a future case, the Court may find that some of these
more onerous burden-shifting statutes violate the Confrontation
Clause because they “impos[e] a burden … on the defendant
to bring … adverse witnesses into court.” Ante , at
19. The burden-shifting
statutes thus provide little reassurance that this case will not
impose a meaningless formalism across the board. C In a
further effort to support its assessment that today’s decision will
not cause disruption, the Court cites 10 decisions from States
that, the Court asserts, “have already adopted the constitutional
rule we announce today.” Ante , at 20, and n. 11. The
Court assures us that “there is no evidence that the criminal
justice system has ground to a halt in the[se] States.” Ante , at 20. On
inspection, the citations prove far less reassuring than promised.
Seven were decided by courts that considered themselves bound by Crawford . These cases thus offer no support for the
Court’s assertion that the state jurists independently “adopted”
the Court’s interpretation as a matter of state law. Quite the
contrary, the debate in those seven courts was over just how far
this Court intended Crawford to sweep. See, e.g. , State v. Belvin , 986 So. 2d 516, 526 (Fla.
2008) (Wells, J., concurring in part and dissenting in part) (“I
believe that the majority has extended the Crawford and Davis decisions beyond their intended reach” (citations
omitted)). The Court should correct these courts’ overbroad reading
of Crawford , not endorse it. Were the Court to do so,
these seven jurisdictions might well change their
position. Moreover, because
these seven courts only “adopted” the Court’s position in the wake
of Crawford, their decisions are all quite recent. These
States have not yet been subject to the widespread, adverse results
of the formalism the Court mandates today. The citations also
fail to reassure for a different reason. Five of the Court’s 10
citations—including all 3 pre- Crawford cases—come from
States that have reduced the confrontation right. Four States have
enacted a burden-shifting statute requiring the defendant to give
early notice of his intent to confront the analyst. See Part III–B, supra; Colorado: Hinojos-Mendoza v. People , 169 P. 3d 662, 668–671 (Colo. 2007), Colo. Rev.
Stat. §16–3–309 (2008) (defendant must give notice 10 days before
trial); Georgia: Compare Miller v. State , 266 Ga.
850, 854–855, 472 S. E. 2d 74, 78–79 (1996) (striking down earlier
notice statute requiring defendant to show good cause, prior to
trial, to call the analyst), with Ga. Code Ann. §35–3–154.1 (2006)
(defendant must give notice 10 days before trial); Illinois: People v. McClanahan , 191 Ill. 2d 127, 133–134,
729 N. E. 2d 470, 474–475 (2000), Ill. Comp. Stat., ch. 725,
§5/115–15 (2006) (defendant must give notice “within 7 days” of
“receipt of the report”); Oregon: State v. Birchfield , 342 Ore., at 631–632, 157 P. 3d, at 220
(suggesting that a “typical notice requirement” would be lawful),
see Ore. Rev. Stat. §475.235 (2007) (defendant must give notice 15
days before trial) . A fifth State, Mississippi, excuses
the prosecution from producing the analyst who conducted the test,
so long as it produces someone. Compare Barnette v. State , 481 So. 2d 788, 792 (Miss. 1985) (cited by the
Court), with McGowen v. State , 859 So. 2d 320,
339–340 (Miss. 2003) (the Sixth Amendment does not require
confrontation with the particular analyst who conducted the test).
It is possible that neither Mississippi’s practice nor the
burden-shifting statutes can be reconciled with the Court’s
holding. See Part III–B, supra . The disruption caused by
today’s decision has yet to take place in these
States. *  *  * Laboratory analysts
who conduct routine scientific tests are not the kind of
conventional witnesses to whom the Confrontation Clause refers. The
judgment of the Appeals Court of Massachusetts should be
affirmed. AppendiXES A The following authorities held, prior to Crawford , that the Confrontation Clause does not require
confrontation of the analyst who conducted a routine scientific
test: United States v. Vietor , 10 M. J. 69,
72 (Ct. Mil. App. 1980) (laboratory drug report); State v. Cosgrove , 181 Conn. 562, 574–578, 436 A. 2d 33, 40–41
(1980) (same); Howard v. United States , 473
A. 2d 835, 838–839 (D. C. 1984) (same); Baber v. State , 775 So. 2d 258 (Fla. 2000) (blood-alcohol
test); Commonwealth v. Harvard , 356 Mass. 452,
253 N. E. 2d 346 (1969) (laboratory drug report); DeRosa v. First Judicial Dist. Court of State ex rel.
Carson City , 115 Nev. 225, 232–233, 985 P. 2d 157, 162
(1999) ( per curiam) (blood-alcohol test); State v. Coombs , 149 N. H. 319, 321–322, 821 A. 2d
1030, 1032 (2003) (blood-alcohol test); State v. Fischer , 459 N. W. 2d 818 (N. D. 1990)
(laboratory drug report); Commonwealth v. Carter ,
593 Pa. 562, 932 A. 2d 1261 (2007) (laboratory drug report;
applying pre- Crawford law); State v. Tavares , 590 A. 2d 867, 872–874 (R. I. 1991)
(laboratory analysis of victim’s bodily fluid); State v. Hutto , 325 S. C. 221, 228–230, 481 S. E. 2d 432,
436 (1997) (fingerprint); State v. Best , 146
Ariz. 1, 3–4, 703 P. 2d 548, 550–551 (App. 1985) (same); State v. Christian , 119 N. M. 776, 895
P. 2d 676 (App. 1995) (blood-alcohol test); State v. Sosa , 59 Wash. App. 678, 684–687, 800 P. 2d 839,
843–844 (1990) (laboratory drug report). The following authorities held, prior to Crawford , that the Confrontation Clause does not require
confrontation of the results of autopsy and hospital reports
describing the victim’s injuries: People v. Clark , 3 Cal. 4th 41, 157–159, 833 P. 2d 561, 627–628
(1992) (autopsy report); Henson v. State , 332
A. 2d 773, 774–776 (Del. 1975) (treating physician’s report of
victim’s injuries, with medical conclusions redacted); Collins v. State , 267 Ind. 233, 235–236, 369
N. E. 2d 422, 423 (1977) (autopsy report); State v. Wilburn , 196 La. 113, 115–118, 198 So. 765, 765–766 (1940)
(hospital record stating victim’s cause of death) (citing State v. Parker , 7 La. Ann. 83 (1852) (coroner’s
written inquest stating cause of death)); State v. Garlick , 313 Md. 209, 223–225, 545 A. 2d 27, 34
(1988) (blood test showing presence of illegal drug); People v. Kirtdoll , 391 Mich. 370, 385–391, 217
N. W. 2d 37, 46–48 (1974) (treating physician’s report
describing victim’s injuries); State v. Spikes ,
67 Ohio St. 2d 405, 411–415, 423 N. E. 2d 1122, 1128–1130
(1981) (treating physician’s report of defendant’s injuries); State v. Kreck , 86 Wash. 2d 112, 117–120, 542
P. 2d 782, 786–787 (1975) (laboratory report stating that
murder victim’s blood contained poison). The
following authorities held, prior to Crawford , that the
Confrontation Clause does not require confrontation of certificates
stating that instruments were in good working order at the time of
a test: State v. Ing , 53 Haw. 466, 467–473, 497
P. 2d 575, 577–579 (1972) (certificate that police car’s
speedometer was in working order), accord, State v. Ofa , 9 Haw. App. 130, 135–139, 828 P. 2d 813, 817–818
(1992) ( per curiam) (certificate that breathalyzer was in
working order); State v. Ruiz , 120 N. M.
534, 903 P. 2d 845 (App. 1995) (same); State v. Dilliner , 212 W. Va. 135, 141–142, 569 S. E. 2d
211, 217–218 (2002) (same); State v. Huggins , 659
P. 2d 613, 616–617 (Alaska App. 1982) (same); State v. Conway , 70 Ore. App. 721, 690 P. 2d 1128 (1984)
(same). The
following decisions reduced the right to confront the results of
scientific tests by upholding burden-shifting statutes that require
the defendant to take affirmative steps prior to trial to summon
the analyst: Johnson v. State , 303 Ark. 12,
18–20, 792 S. W. 2d 863, 866–867 (1990) (defendant must give
notice 10 days before trial); State v. Davison ,
245 N. W. 2d 321 (Iowa 1976), Iowa Code Ann. §691.2 (2008)
(same); State v. Crow , 266 Kan. 690, 974
P. 2d 100 (1999) (defendant must give notice within 10 days of
receiving the result and must show that the result will be
challenged at trial); State v. Christianson , 404
A. 2d 999 (Me. 1979) (defendant must give notice 10 days
before trial); State v. Miller , 170 N. J.
417, 436–437, 790 A. 2d 144, 156 (2002) (defendant must give
notice within 10 days of receiving the result and must show that
the result will be challenged at trial); State v. Smith , 312 N. C. 361, 381–382, 323 S. E. 2d 316, 328
(1984) (defendant must subpoena analyst); State v. Hancock , 317 Ore. 5, 9–12, 854 P. 2d 926, 928–930
(1993) (same), but see State v. Birchfield , 342
Ore. 624, 157 P. 3d 216 (reducing defendant’s burden); State v. Hughes , 713 S. W. 2d 58 (1986)
(defendant must subpoena analyst); Magruder v. Commonwealth , 275 Va. 283, 295–300, 657 S. E. 2d 113,
119–121 (2008) (defendant must “call the person performing such
analysis,” at the State’s expense); People v. Mayfield-Ulloa , 817 P. 2d 603 (Colo. App. 1991)
(defendant must give notice to State and the analyst 10 days before
trial); State v. Matthews , 632 So. 2d 294,
300–302 (La. App. 1993) (defendant must give notice five days
before trial). B The following authorities hold that State
Rules of Evidence permit the results of routine scientific tests to
be admitted into evidence without confrontation: State v. Torres , 60 Haw. 271, 589 P. 2d 83 (1978) (X ray of
victim’s body); State v. Davis , 269 N. W. 2d
434, 440 (Iowa 1978) (laboratory analysis of victim’s bodily
fluid); State v. Taylor , 486 S. W. 2d 239,
241–243 (Mo. 1972) (microscopic comparison of wood chip retrieved
from defendant’s clothing with wood at crime scene); State v. Snider , 168 Mont. 220, 229–230, 541 P. 2d 1204,
1210 (1975) (laboratory drug report); People v. Porter , 46 App. Div. 2d 307, 311–313, 362
N. Y. S. 2d 249, 255–256 (1974) (blood-alcohol report); Robertson v. Commonwealth , 211 Va. 62, 64–68, 175
S. E. 2d 260, 262–264 (1970) (laboratory analysis of victim’s
bodily fluid); Kreck , 86 Wash. 2d, 117–120, 542
P. 2d, 786–787 (laboratory report stating that murder victim’s
blood contained poison). The following authorities hold that State
Rules of Evidence permit autopsy and hospital reports to be
admitted into evidence without confrontation: People v. Williams , 174 Cal. App. 2d 364, 389–391, 345 P. 2d
47, 63–64 (1959) (autopsy report); Henson , supra ,
at 775–776 (report of physician who examined victim); Wilburn , 196 La., at 115–118, 198 So., at 765–766
(hospital record stating victim’s cause of death); Garlick , 313 Md., at 223–225, 545 A. 2d, at 34 (blood
test); State v. Reddick , 53 N. J. 66, 68–69,
248 A. 2d 425, 426–427 (1968) (per curiam) (autopsy
report stating factual findings, but not opinions, of medical
examiner); People v. Nisonoff , 293 N. Y.
597, 59 N. E. 2d 420 (1944) (same). The
following authorities hold that State Rules of Evidence permit
certificates, which state that scientific instruments were in good
working order, to be admitted into evidence without confrontation: Wester v. State , 528 P. 2d 1179, 1183
(Alaska 1974) (certificate stating that breathalyzer machine was in
working order); Best v. State , 328 A. 2d
141, 143 (Del. 1974) (certificate that breathalyzer was in working
order); State v. Rines , 269 A. 2d 9, 13–15
(Me. 1970) (manufacturer’s certificate stating that blood-alcohol
test kit was in working order admissible under the business-records
exception); McIlwain v. State , 700 So. 2d
586, 590–591 (Miss. 1997) (same). Taking
the minority view, the following authorities interpret state
hearsay rules to require confrontation of the results of routine
scientific tests or observations of medical personnel: State v. Sandoval-Tena , 138 Idaho 908, 912, 71
P. 3d 1055, 1059 (2003) (laboratory drug report inadmissible
under state hearsay rule); Spears v. State , 241
So. 2d 148 (Miss. 1970) (nurse’s observation of victim
inadmissible under state hearsay rule and constitution); State v. James , 255 S. C. 365, 179
S. E. 2d 41 (1971) (chemical analysis of victim’s bodily fluid
inadmissible under state hearsay rule); Cole v. State , 839 S. W. 2d 798 (Tex. Ct. Crim. App. 1990)
(laboratory drug report inadmissible under state hearsay rule); State v. Workman , 2005 UT 66, ¶¶9–20, 122
P. 3d 639, 642–643 (same); State v. Williams , 2002 WI 58, ¶¶32–55, 253 Wis. 2d 99, 118–127,
644 N. W. 2d 919, 928–932 (same), but see id. , at
109–117, 644 N. W. 2d, at 924–927 (no confrontation violation
where expert testified based on test results prepared by an
out-of-court analyst). This
summary does not include decisions that find test results
inadmissible because the State failed to lay a proper foundation.
Rather than endorse the minority view, those cases merely reaffirm
the government’s burden to prove the authenticity of its evidence
and the applicability of an exception to the state hearsay rule.
See, e.g. , State v. Fisher , 178
N. W. 2d 380 (Iowa 1970) (laboratory test of victim’s bodily
fluid inadmissible under business-records exception because the
prosecution did not show that it was kept in regular course of
business); State v. Foster , 198 Kan. 52, 422
P. 2d 964 (1967) (no foundation laid for introduction of
blood-alcohol test because the prosecution did not show that the
test was conducted in the usual course of business); Moon v. State , 300 Md. 354, 367–371, 478 A. 2d 695,
702–703 (1984) (blood alcohol test inadmissible because
insufficient foundational evidence that the test was conducted in a
reliable manner); cf. Davis , 269 N.W. 2d , at 440
(laboratory test of victim’s bodily fluid admitted under
business-records exception to state hearsay rule); Garlick , 313 Md., at 215, n. 2, 223–225, 545
A. 2d, at 30, n. 2, 34 (laboratory test of defendant’s
blood falls within “firmly rooted” hearsay
exception). Three
States once espoused the minority view but appear to have changed
course to some degree: People v. Lewis , 294 Mich.
684, 293 N. W. 907 (1940) (hospital record describing victim’s
injuries inadmissible hearsay), overruled by Kirtdoll , 391
Mich. , at 372, 217 N. W. 2d, at 39 (noting that “in
its 35 year long history, Lewis … has never been
relied upon to actually deny admission into evidence of a business
entry record in a criminal case”), but see People v. McDaniel , 469 Mich. 409, 670 N. W. 2d 659 (2003) (per curiam) (police laboratory report inadmissible
hearsay); State v. Tims , 9 Ohio St. 2d 136,
137–138, 224 N. E. 2d 348, 350 (1967) (hospital record
describing victim’s injuries inadmissible hearsay), overruled by Spikes , 67 Ohio St. 2d , at 411–415, 423
N. E. 2d, at 1128–1130; State v. Henderson ,
554 S. W. 2d 117 (Tenn. 1977) (laboratory drug report
inadmissible absent confrontation), abrogated by statute as
recognized by Hughes , 713 S. W. 2d 58 (statute
permitted defendant to subpoena analyst who prepared blood alcohol
report; by not doing so, defendant waived his right to confront the
analyst).

Summary: The Supreme Court ruled that forensic analysis reports are considered testimonial statements and are therefore subject to the defendant's Sixth Amendment right to confront the witnesses against them. This means that the prosecution must make the analysts who performed the forensic analysis available for cross-examination at trial, rather than simply submitting their reports as evidence.