Melendez-Diaz v. Massachusetts

(Slip Opinion) OCTOBER TERM, 2008 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

MELENDEZ-DIAZ v. MASSACHUSETTS

CERTIORARI TO THE APPEALS COURT OF MASSACHUSETTS

No. 07–591. Argued November 10, 2008—Decided June 25, 2009

At petitioner’s state-court drug trial, the prosecution introduced certifi

cates of state laboratory analysts stating that material seized by po

lice and connected to petitioner was cocaine of a certain quantity. As

required by Massachusetts law, the certificates were sworn to before

a notary public and were submitted as prima facie evidence of what

they asserted. Petitioner objected, asserting that Crawford v. Wash

ington, 541 U. S. 36, required the analysts to testify in person. The

trial court disagreed, the certificates were admitted, and petitioner

was convicted. The Massachusetts Appeals Court affirmed, rejecting

petitioner’s claim that the certificates’ admission violated the Sixth

Amendment.

Held: The admission of the certificates violated petitioner’s Sixth

Amendment right to confront the witnesses against him. Pp. 3–23.

(a) Under Crawford, a witness’s testimony against a defendant is

inadmissible unless the witness appears at trial or, if the witness is

unavailable, the defendant had a prior opportunity for cross

examination. 541 U. S., at 54. The certificates here are affidavits,

which fall within the “core class of testimonial statements” covered

by the Confrontation Clause, id., at 51. They asserted that the sub

stance found in petitioner’s possession was, as the prosecution

claimed, cocaine of a certain weight—the precise testimony the ana

lysts would be expected to provide if called at trial. Not only were the

certificates made, as Crawford required for testimonial statements,

“under circumstances which would lead an objective witness rea

sonably to believe that the statement would be available for use at a

later trial,” id., at 52, but under the relevant Massachusetts law their

sole purpose was to provide prima facie evidence of the substance’s

composition, quality, and net weight. Petitioner was entitled to “be

confronted with” the persons giving this testimony at trial. Id., at 54.

2 MELENDEZ-DIAZ v. MASSACHUSETTS

Syllabus

Pp. 3–5.

(b) The arguments advanced to avoid this rather straightforward

application of Crawford are rejected. Respondent’s claim that the

analysts are not subject to confrontation because they are not “accu

satory” witnesses finds no support in the Sixth Amendment’s text or

in this Court’s case law. The affiants’ testimonial statements were

not “nearly contemporaneous” with their observations, nor, if they

had been, would that fact alter the statements’ testimonial character.

There is no support for the proposition that witnesses who testify re

garding facts other than those observed at the crime scene are ex

empt from confrontation. The absence of interrogation is irrelevant;

a witness who volunteers his testimony is no less a witness for Sixth

Amendment purposes. The affidavits do not qualify as traditional of

ficial or business records. The argument that the analysts should not

be subject to confrontation because their statements result from neu

tral scientific testing is little more than an invitation to return to the

since-overruled decision in Ohio v. Roberts, 448 U. S. 56, 66, which

held that evidence with “particularized guarantees of trustworthi

ness” was admissible without confrontation. Petitioner’s power to

subpoena the analysts is no substitute for the right of confrontation.

Finally, the requirements of the Confrontation Clause may not be re

laxed because they make the prosecution’s task burdensome. In any

event, the practice in many States already accords with today’s deci

sion, and the serious disruption predicted by respondent and the dis

sent has not materialized. Pp. 5–23.

69 Mass. App. 1114, 870 N. E. 2d 676, reversed and remanded.

SCALIA, J., delivered the opinion of the Court, in which STEVENS,

SOUTER, THOMAS, and GINSBURG, JJ., joined. THOMAS, J., filed a concur

ring opinion. KENNEDY, J., filed a dissenting opinion, in which ROB-

ERTS, C. J., and BREYER and ALITO, JJ., joined.

Cite as: 557 U. S. ____ (2009) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

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 analy

sis 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 defen

dant’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 suspi

cious activity. The informant reported that Wright re

peatedly 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 de

tained 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

2 MELENDEZ-DIAZ v. MASSACHUSETTS

Opinion of the Court

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 certifi

cates were sworn to before a notary public by analysts at

the State Laboratory Institute of the Massachusetts De

partment of Public Health, as required under Massachu

setts law. Mass. Gen. Laws, ch. 111, §13.

Petitioner objected to the admission of the certificates,

asserting that our Confrontation Clause decision in Craw

ford 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,

Cite as: 557 U. S. ____ (2009) 3

Opinion of the Court

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 Massa

chusetts Supreme Judicial Court’s decision in Common

wealth 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 de

nied 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 Constitu

tion, 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 wit

nesses against him.” In Crawford, after reviewing the

Clause’s historical underpinnings, we held that it guaran

tees a defendant’s right to confront those “who ‘bear testi

mony’ ” against him. 541 U. S., at 51. A witness’s testi

mony 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 state

ments covered by the Confrontation Clause as follows:

“Various formulations of this core class of testimo

nial statements exist: ex parte in-court testimony or

its functional equivalent—that is, material such as af

fidavits, custodial examinations, prior testimony that

the defendant was unable to cross-examine, or similar

pretrial statements that declarants would reasonably

4 MELENDEZ-DIAZ v. MASSACHUSETTS

Opinion of the Court

expect to be used prosecutorially; extrajudicial state

ments . . . contained in formalized testimonial materi

als, such as affidavits, depositions, prior testimony, or

confessions; statements that were made under cir

cumstances 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 (inter

nal 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 docu

ments at issue here, while denominated by Massachusetts

law “certificates,” are quite plainly affidavits: “declara

tion[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 incontroverti

bly 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 Diction

ary 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 “certifi

cates” are functionally identical to live, in-court testimony,

doing “precisely what a witness does on direct examina

tion.” Davis v. Washington, 547 U. S. 813, 830 (2006)

(emphasis deleted).

Here, moreover, not only were the affidavits “ ‘made

Cite as: 557 U. S. ____ (2009) 5

Opinion of the Court

under circumstances which would lead an objective wit

ness 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 affi

davits was to provide “prima facie evidence of the composi

tion, quality, and the net weight” of the analyzed sub

stance, Mass. Gen. Laws, ch. 111, §13. We can safely

assume that the analysts were aware of the affidavits’

evidentiary purpose, since that purpose—as stated in the

relevant state-law provision—was reprinted on the affida

vits 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 54.1

III

Respondent and the dissent advance a potpourri of

——————

1 Contrary to the dissent’s suggestion, post, at 3–4, 7 (opinion of KEN-

NEDY, J.), we do not hold, and it is not the case, that anyone whose

testimony may be relevant in establishing the chain of custody, authen

ticity 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 intro

duced live. Additionally, documents prepared in the regular course of

equipment maintenance may well qualify as nontestimonial records.

See infra, at 15–16, 18.

6 MELENDEZ-DIAZ v. MASSACHUSETTS

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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 “estab

lished 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 30.2 As for the six Fed

eral 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 confronta

tion 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 con

frontation with respect to certificates of analysis regarding

a substance’s alcohol content. See post, at 21 (citing cases

——————

2 The exception is a single pre-Roberts case that relied on longstand

ing Massachusetts precedent. See Commonwealth v. Harvard, 356

Mass. 452, 462, 253 N. E. 2d 346, 352 (1969). Others are simply irrele

vant, since they involved medical reports created for treatment pur

poses, 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. Gar

lick, 313 Md. 209, 223–225, 545 A. 2d 27, 34–35 (1998).

Cite as: 557 U. S. ____ (2009) 7

Opinion of the Court

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 jurispru

dence. 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 sub

ject 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 peti

tioner 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.” (Em

phasis added.) To the extent the analysts were witnesses

(a question resolved above), they certainly provided testi

mony 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

8 MELENDEZ-DIAZ v. MASSACHUSETTS

Opinion of the Court

defendant and those in his favor. The prosecution must

produce the former;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.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

——————

3 The right to confrontation may, of course, be waived, including by

failure to object to the offending evidence; and States may adopt proce

dural rules governing the exercise of such objections. See infra, at 21.

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.

Cite as: 557 U. S. ____ (2009) 9

Opinion of the Court

as evidence against another defendant accused of receiv

ing 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 para

digmatic case identifies the core of the right to confronta

tion, not its limits. The right to confrontation was not

invented in response to the use of the ex parte examina

tions 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 per

formed on November 28, 2001, and the affidavits sworn on

December 4, 2001). But regardless, the dissent misunder

10 MELENDEZ-DIAZ v. MASSACHUSETTS

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stands 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 omit

ted). 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 de

scribing 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

Cite as: 557 U. S. ____ (2009) 11

Opinion of the Court

than they were to exempt answers to detailed interroga

tion.” Davis, supra, at 822–823, n. 1. Respondent and the

dissent cite no authority, and we are aware of none, hold

ing 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 Con

frontation Clause purposes, between testimony recounting

historical events, which is “prone to distortion or manipu

lation,” and the testimony at issue here, which is the

“resul[t] of neutral, scientific testing.” Brief for Respon

dent 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 Craw

ford in response to that argument remains true:

“To be sure, the Clause’s ultimate goal is to ensure re

12 MELENDEZ-DIAZ v. MASSACHUSETTS

Opinion of the Court

liability of evidence, but it is a procedural rather than

a substantive guarantee. It commands, not that evi

dence be reliable, but that reliability be assessed in a

particular manner: by testing in the crucible of cross

examination. . . . Dispensing with confrontation be

cause testimony is obviously reliable is akin to dis

pensing with jury trial because a defendant is obvi

ously 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.5 But the Constitu

tion guarantees one way: confrontation. We do not have

license to suspend the Confrontation Clause when a pref

erable 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 foren

sic evidence] are administered by law enforcement agen

cies, such as police departments, where the laboratory

administrator reports to the head of the agency.” National

Research Council of the National Academies, Strengthen

ing 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 method

ology for the sake of expediency.” Id., at S–17. A forensic

——————

5 Though surely not always. Some forensic analyses, such as autop

sies and breathalyzer tests, cannot be repeated, and the specimens used

for other analyses have often been lost or degraded.

Cite as: 557 U. S. ____ (2009) 13

Opinion of the Court

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); Na

tional Academy Report 1–8 to 1–10 (discussing docu

mented cases of fraud and error involving the use of foren

sic evidence). Like the eyewitness who has fabricated his

account to the police, the analyst who provides false re

sults 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 evi

dence 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 con

cluded that invalid forensic testimony contributed to the

convictions in 60% of the cases. Garrett & Neufeld, Inva

lid 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 re

14 MELENDEZ-DIAZ v. MASSACHUSETTS

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search and practice, has serious problems that can

only be addressed by a national commitment to over

haul the current structure that supports the forensic

science community in this country.” National Acad

emy Report P–1 (emphasis in original).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 recom

mended 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 ex

plored 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

——————

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 Teresa.

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.

Cite as: 557 U. S. ____ (2009) 15

Opinion of the Court

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 computer

ized matching systems, “forensic analysts in crime labora

tories typically do not utilize this feature of the instru

ment, 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 disci

plines with regard to techniques, methodologies, reliabil

ity, types and numbers of potential errors, research, gen

eral 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 unreli

ability 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 com

monly 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

16 MELENDEZ-DIAZ v. MASSACHUSETTS

Opinion of the Court

production of evidence for use at trial. Our decision in

Palmer v. Hoffman, 318 U. S. 109 (1943), made that dis

tinction 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 “calcu

lated for use essentially in the court, not in the business.”

Id., at 114.7 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 coro

ner’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., dissent

ing); 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 admis

sible: a clerk’s certificate authenticating an official re

cord—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 cor

rectness of a copy of a record kept in his office,” but had

——————

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) (admit

ting 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).

Cite as: 557 U. S. ____ (2009) 17

Opinion of the Court

“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 appli

cable to the present case. A clerk could by affidavit au

thenticate 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.8

Far more probative here are those cases in which the

prosecution sought to admit into evidence a clerk’s certifi

cate 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 state

ment 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 re

spondent’s definition—it was prepared by a public officer

in the regular course of his official duties—and although

——————

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 simi

larly 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.

18 MELENDEZ-DIAZ v. MASSACHUSETTS

Opinion of the Court

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,

§1678.9

Respondent also misunderstands the relationship be

tween 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, busi

ness 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 ana

lysts’ 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 Confronta

——————

9 An earlier line of 19th century state-court cases also supports the

notion that forensic analysts’ certificates were not admitted into evi

dence 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 adulter

ated 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.

Cite as: 557 U. S. ____ (2009) 19

Opinion of the Court

tion 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 ap

pear at . . . trial”). Converting the prosecution’s duty

under the Confrontation Clause into the defendant’s privi

lege 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 Con

frontation 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 pre

sents 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 prosecu

tion 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 labora

tories in recent years. But only some of those tests are

20 MELENDEZ-DIAZ v. MASSACHUSETTS

Opinion of the Court

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).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,11 while many others permit the defen

dant 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

——————

10 The dissent provides some back-of-the-envelope calculations re

garding 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 stipu

late 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.

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).

Cite as: 557 U. S. ____ (2009) 21

Opinion of the Court

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 reason

ing.” 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 de

fendant is given a period of time in which he may object to

the admission of the evidence absent the analyst’s appear

ance 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 bur

den 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 cer

tain 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

22 MELENDEZ-DIAZ v. MASSACHUSETTS

Opinion of the Court

will not disrupt criminal prosecutions in the many large

States whose practice is already in accord with the Con

frontation Clause.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 deci

sions 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 foren

sic analysis. Nor will defense attorneys want to antago

nize the judge or jury by wasting their time with the ap

pearance of a witness whose testimony defense counsel

does not intend to rebut in any fashion.13 The amicus brief

——————

12 As the dissent notes, post, at 27, some state statutes, “requir[e]

defense counsel to subpoena the analyst, to show good cause for de

manding 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.

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

Cite as: 557 U. S. ____ (2009) 23

Opinion of the Court

filed by District Attorneys in Support of the Common

wealth 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 Common

wealth 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 pa

rade 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.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.

——————

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.

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.

Cite as: 557 U. S. ____ (2009) 1

THOMAS, J., concurring

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 con

tained in formalized testimonial materials, such as affida

vits, 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. Cali

fornia, 554 U. S. ___, ___ (2008) (slip op., at 1) (concurring

opinion) (characterizing statements within the scope of the

Confrontation Clause to include those that are “suffi

ciently formal to resemble the Marian examinations”

because they were Mirandized or custodial or “accompa

nied 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 dis

senting in part) (reiterating that the Clause encompasses

extrajudicial statements contained in the types of formal

ized 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).

Cite as: 557 U. S. ____ (2009) 1

KENNEDY, J., dissenting

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 testi­

mony 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 sys­

temic concern is that the Court makes no attempt to ac­

knowledge the real differences between laboratory ana­

lysts who perform scientific tests and other, more

conventional witnesses—“witnesses” being the word the

2 MELENDEZ-DIAZ v. MASSACHUSETTS

KENNEDY, J., dissenting

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 proposi­

tion that formal statements made by a conventional wit­

ness—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 wit­

ness 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 wit­

nesses, 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 constitu­

tional law, an as-yet-undefined set of rules governing what

kinds of evidence may be admitted without in-court testi­

mony. 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 Confronta­

tion 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, Craw

Cite as: 557 U. S. ____ (2009) 3

KENNEDY, J., dissenting

ford 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 for­

malistic and wooden rules, divorced from precedent, com­

mon 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 ex­

plained 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 constitu­

tional 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 spec­

trometry). A second person interprets the graph the ma­

chine prints out—perhaps by comparing that printout

with published, standardized graphs of known drugs.

4 MELENDEZ-DIAZ v. MASSACHUSETTS

KENNEDY, J., dissenting

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 direc­

tor—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 an­

nounces 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 cali­

brated 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 calibra­

tion. 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

Cite as: 557 U. S. ____ (2009) 5

KENNEDY, J., dissenting

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 contrac­

tor’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 state­

ment, 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 inde­

pendent contractor is not also an analyst.

Consider the person who interprets the machine’s print­

out. 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 ambigu­

ity 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 re­

states work performed by subordinates.

The Court offers no principles or historical precedent to

determine which of these persons is the analyst. All con­

tribute to the test result. And each is equally remote from

the scene, has no personal stake in the outcome, does not

6 MELENDEZ-DIAZ v. MASSACHUSETTS

KENNEDY, J., dissenting

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 tes­

tify is the person who signed the certificate. Under this

view, a laboratory could have one employee sign certifi­

cates 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 Defini­

tion of “Testimonial”: How Autopsy Reports Do Not Em­

body the Qualities of a Testimonial Statement, 96 Cal. L.

Rev. 1093, 1094, 1115 (2008) (noting that every court post­

Cite as: 557 U. S. ____ (2009) 7

KENNEDY, J., dissenting

Crawford has held that autopsy reports are not testimo­

nial, 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 re­

trieved 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 admissibil­

ity”); 29A Am. Jur. 2d, Evidence §962, p. 269 (2009) (“The

fact that one of the persons in control of a fungible sub­

stance does not testify at trial does not, without more,

make the substance or testimony relating to it inadmissi­

ble”); 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 cru­

cial—not the prosecution. In any number of cases, the

8 MELENDEZ-DIAZ v. MASSACHUSETTS

KENNEDY, J., dissenting

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 au­

thenticating 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) (busi­

ness 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 con­

sequence 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 pre­

dictability. 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

Cite as: 557 U. S. ____ (2009) 9

KENNEDY, J., dissenting

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 con­

ducting 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 de­

fendant 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 Com­

monwealth 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 test­

ing 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

10 MELENDEZ-DIAZ v. MASSACHUSETTS

KENNEDY, J., dissenting

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 de­

scribed as a pro forma objection to admitting the results

without in-court testimony, presumably from one particu­

lar analyst. Today the Court, by deciding that this objec­

tion should have been sustained, transforms the Confron­

tation 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, reformu­

late, 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 con­

frontation 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. Court­

room questioning, in contrast, is public and performed in

front of the jury, judge and defendant. Pressure is there­

fore 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 catch­

ing sight of the defendant the result condemns. After all,

Cite as: 557 U. S. ____ (2009) 11

KENNEDY, J., dissenting

the analyst is far removed from the particular defendant

and, indeed, claims no personal knowledge of the defen­

dant’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 analy­

sis; if it does not call an expert to interpret a test, particu­

larly 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 pre­

sumption [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 mean­

ingful opportunity to present a complete defense” (internal

quotation marks omitted)). The rules of evidence, includ­

ing 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 prose­

cution must call on every issue. Suppose, for instance,

12 MELENDEZ-DIAZ v. MASSACHUSETTS

KENNEDY, J., dissenting

that the defense challenges the procedures for a secure

chain of custody for evidence sent to a lab and then re­

turned 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 attor­

neys’ 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 in­

stead face the prospect of waiting for days in a hallway

Cite as: 557 U. S. ____ (2009) 13

KENNEDY, J., dissenting

outside the courtroom before being called to offer testi­

mony 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 al­

ready 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 Massa­

chusetts 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 coun­

try. 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 MELENDEZ-DIAZ v. MASSACHUSETTS

KENNEDY, J., dissenting

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 difficul­

ties than the States because its operations are so wide­

spread. 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 Direc­

tor, 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 labo­

ratory’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 Confronta­

tion Clause at a dear price, a price not measured in tax­

payer dollars alone. Guilty defendants will go free, on the

most technical grounds, as a direct result of today’s deci­

sion, 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 court­

room 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 technical­

Cite as: 557 U. S. ____ (2009) 15

KENNEDY, J., dissenting

ity that, because it results in an acquittal, cannot be re­

viewed 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 Con­

frontation 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 de­

fendant 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. Illi

16 MELENDEZ-DIAZ v. MASSACHUSETTS

KENNEDY, J., dissenting

nois, 502 U. S. 346, 359 (1992) (THOMAS, J., concurring in

part and concurring in judgment), it is certain the Fram­

ers did not contemplate that an analyst who conducts a

scientific test far removed from the crime would be consid­

ered 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 ex­

tend 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 his­

torical guesswork.

The infamous treason trial of Sir Walter Raleigh pro­

vides 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 (Ra­

leigh’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 wit­

nesses 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 labora­

tory 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

Cite as: 557 U. S. ____ (2009) 17

KENNEDY, J., dissenting

analyst’s report contains near-contemporaneous observa­

tions of the test. An observation recorded at the time it is

made is unlike the usual act of testifying. A typical wit­

ness must recall a previous event that he or she perceived

just once, and thus may have misperceived or misremem­

bered. But an analyst making a contemporaneous obser­

vation 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 Con­

frontation 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 ana­

lyst’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 con­

trolled 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

18 MELENDEZ-DIAZ v. MASSACHUSETTS

KENNEDY, J., dissenting

Department of Public Health—were adversarial to peti­

tioner. Nor is there any evidence that adversarial officials

played a role in formulating the analysts’ certificates.

Rather than acknowledge that it expands the Confron­

tation 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

Cite as: 557 U. S. ____ (2009) 19

KENNEDY, J., dissenting

conduct scientific tests far removed from the crime and the

defendant. Indeed, what little evidence there is contra­

dicts 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 prosecu­

tion 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 pre­

pared for a criminal prosecution.

During the Framers’ era copyists’ affidavits were ac­

cepted 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 Com­

mittee’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 con­

20 MELENDEZ-DIAZ v. MASSACHUSETTS

KENNEDY, J., dissenting

trast to the Court today, did not consider the Confronta­

tion Clause to require in-court confrontation of unconven­

tional 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 can­

not be squared with the Court’s avowed allegiance to

formalism. Determining whether a witness’ authority is

“narrowly circumscribed” has nothing to do with Craw

ford’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 Confronta­

tion 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 inno­

cence.” 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 state­

ment appear for confrontation, on pain of excluding the

statement from evidence, the Court does violence to the

Cite as: 557 U. S. ____ (2009) 21

KENNEDY, J., dissenting

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 con­

trary 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 Massa­

chusetts Supreme Judicial Court upheld the admission of

a certificate stating that the liquid seized from the defen­

dant 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 conclu­

sions 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 con­

trary 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 require­

ment” 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,

22 MELENDEZ-DIAZ v. MASSACHUSETTS

KENNEDY, J., dissenting

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 appen­

dixes 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 confron­

tation 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 Craw

ford. 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 re­

quired 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 evi­

dence 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 en­

forcement not admissible under public-records or busi­

ness-records exceptions to federal hearsay rule).

The modern trend in the state courts has been away

Cite as: 557 U. S. ____ (2009) 23

KENNEDY, J., dissenting

from the Court’s rule and toward the admission of scien­

tific test results without testimony—perhaps because the

States have recognized the increasing reliability of scien­

tific 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 inter­

pret 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 Con­

gress 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 Fed­

eral 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

24 MELENDEZ-DIAZ v. MASSACHUSETTS

KENNEDY, J., dissenting

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 ar­

guments, 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 prosecu­

tions, 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 expecta­

tion on its understanding that defense attorneys surren­

der 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 prose­

cution 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 prosecu­

tion 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

Cite as: 557 U. S. ____ (2009) 25

KENNEDY, J., dissenting

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 sugges­

tion—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 law­

yer 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. Califor

nia, 386 U. S. 738, 743 (1967). The right to the effec­

tive assistance of counsel is thus the right of the ac­

cused 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 Amend­

ment has occurred. But if the process loses its charac­

ter as a confrontation between adversaries, the consti­

tutional 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 Respon­

sibility 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 prosecu­

tion 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

26 MELENDEZ-DIAZ v. MASSACHUSETTS

KENNEDY, J., dissenting

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 sim­

ply not the way the adversarial system works.

In any event, the Court’s hope is sure to prove un­

founded. 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 predic­

tion misunderstands how criminal trials work. If the

defense does not plan to challenge the test result, “high­

light[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 wind­

fall: 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 govern­

ment’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

Cite as: 557 U. S. ____ (2009) 27

KENNEDY, J., dissenting

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 statis­

tics. 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 sen­

tence 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 re­

quiring 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 ana­

lyst. 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.

28 MELENDEZ-DIAZ v. MASSACHUSETTS

KENNEDY, J., dissenting

The burden-shifting statutes thus provide little reassur­

ance that this case will not impose a meaningless formal­

ism across the board.

C

In a further effort to support its assessment that today’s

decision will not cause disruption, the Court cites 10 deci­

sions 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 consid­

ered 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 in­

tended 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 jurisdic­

tions 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 sub­

ject 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

Cite as: 557 U. S. ____ (2009) 29

KENNEDY, J., dissenting

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 (sug­

gesting that a “typical notice requirement” would be law­

ful), 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. Com­

pare 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 Missis­

sippi’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.

30 MELENDEZ-DIAZ v. MASSACHUSETTS

KENNEDY, J., dissenting

Appendix A to opinion of KENNEDY, J.

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) (labo­

ratory 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 Judi

cial 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 physi­

cian’s report of victim’s injuries, with medical conclusions

redacted); Collins v. State, 267 Ind. 233, 235–236, 369

Cite as: 557 U. S. ____ (2009) 31

KENNEDY, J., dissenting

Appendix A to opinion of KENNEDY, J.

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) (treat­

ing 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 defen­

dant’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,

32 MELENDEZ-DIAZ v. MASSACHUSETTS

KENNEDY, J., dissenting

Appendix B to opinion of KENNEDY, J.

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 defen­

dant’s burden); State v. Hughes, 713 S. W. 2d 58 (1986)

(defendant must subpoena analyst); Magruder v. Com

monwealth, 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 Evi­

dence 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. Tay

lor, 486 S. W. 2d 239, 241–243 (Mo. 1972) (microscopic

comparison of wood chip retrieved from defendant’s cloth­

ing 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,

Cite as: 557 U. S. ____ (2009) 33

KENNEDY, J., dissenting

Appendix B to opinion of KENNEDY, J.

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 Evi­

dence 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 Evi­

dence permit certificates, which state that scientific in­

struments 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 breatha­

lyzer 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

34 MELENDEZ-DIAZ v. MASSACHUSETTS

KENNEDY, J., dissenting

Appendix B to opinion of KENNEDY, J.

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 inad­

missible 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 applicabil­

ity 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 defen­

dant’s blood falls within “firmly rooted” hearsay excep­

tion).

Three States once espoused the minority view but ap­

Cite as: 557 U. S. ____ (2009) 35

KENNEDY, J., dissenting

Appendix B to opinion of KENNEDY, J.

pear 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 inadmis­

sible 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 confronta­

tion), 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).