It’s Testimonial, Stupid

“It’s the economy, stupid,” was a catch phrase in Bill Clinton’s successful 1992 presidential campaign. I have my own catch phrase, but it’s for trying drug cases. Here it is:

“It’s testimonial, stupid.”

Nearly everyone is having a difficult adjustment to the new confrontation clause regime after the U.S. Supreme Court’s Crawford decision and its barrage of opinions since that case was decided. And even after all of this case law, there are still a lot of uncertainties. But here’s one thing we know for sure: forensic reports identifying a substance as a controlled substance are testimonial. For emphasis, let me repeat that: forensic reports identifying a substance as a controlled substance are testimonial. That was the clear holding of the U.S. Supreme Court’s bombshell of an opinion in Melendez-Diaz. Why is that significant? It’s significant because only testimonial statements are subject to the Crawford rule. And under the Crawford rule testimonial hearsay statements may not be admitted at trial unless the State shows unavailability of the declarant and a prior opportunity to cross-examine.


The N.C. Court of Appeals’ recent decision in State v. Burrow, highlights the trouble people are having with the new rules. Burrow was drug trafficking case involving oxycodone. The case was tried in 2011, long after Crawford and Melendez-Diaz were decided. In order to prove that the substance at issue was in fact oxycodone, the State offered a SBI forensic report so identifying the substance. But neither the preparer of the report nor a substitute analyst testified at trial. As it became clear on appeal, this was a mistake. The report is testimonial and thus subject to the Crawford rule. In Burrow, there was no evidence that the SBI analyst was unavailable or that there was a prior opportunity for cross-examination. Not surprisingly, the court of appeals held that under these circumstances admission of the report violated the defendant’s confrontation clause rights.

To be sure, a lot of issues remain open about application of the Crawford rule. One such issue is whether a substitute analyst who testifies to an independent opinion can rely on a report prepared by a non-testifying witness. In North Carolina, the answer to that question is yes. But as I discussed in a post here, the U.S. Supreme Court will decide that issue this term.

I’ve read that in Clinton’s 1992 campaign, the slogan “It’s the economy, stupid” was posted in his campaign offices and was often repeated to keep campaign workers on message. I’m not sure my slogan will make it into Wikipedia, but remembering it will help you in your drug cases. So repeat the mantra: “It’s testimonial, stupid.”

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