Melendez-Diaz: Crawford Applies to Lab Reports

In yesterday’s frivolous post, I said that legal news was slow. Not anymore! The United States Supreme Court decided Melendez-Diaz v. Massachusetts yesterday. It’s a big Confrontation Clause case, and I expect that Jessica Smith, the Crawford expert on our faculty, will eventually weigh in with an expert analysis. But since Jessie’s still busy administering the Superior Court Judges’ conference, here are my preliminary thoughts.

First, the basics of the case. Mr. Melendez-Diaz was arrested in Massachusetts after an apparent drug sale, was found to be in possession of 19 bags of white powder, and was charged with trafficking in cocaine. The white powder was submitted for forensic analysis, and an analyst determined that it was cocaine. The analyst completed a report to that effect and the state introduced the report at trial, over the defendant’s Confrontation Clause objection, without having the analyst present. The defendant was convicted. He appealed, the state appellate courts affirmed, and the Supreme Court reversed 5-4, with Justice Scalia heading an odd coalition of Justices and writing the Opinion of the Court. 

The Court held that the report was prepared for the purpose of use at trial, and was therefore “testimonial” under Crawford. It rejected various arguments raised by the state in an effort to distinguish Crawford. For example, the state argued that lab reports are like business records, but the Court observed that business records are not prepared for the purpose of use at trial. The state argued that an analyst’s opinion was unlikely to change once “confronted” with the defendant, but the Court both disputed the premise — discussing at length the prevalence of dishonest or incompetent analysts — and found the likely effectiveness of confrontation irrelevant to the constitutional requirement thereof.

Of particular importance, the Court rejected the state’s argument that the Confrontation Clause was satisfied because the defendant could have subpoenaed the analyst, concluding that the burden is “on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court.” However, it embraced the notion that the defendant could be required 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.” Such “notice-and-demand” statutes, the Court said, are simply “procedural rules” that specify when a defendant must assert his Confrontation Clause rights.

So, how does this apply to North Carolina? First, it appears that the provision in G.S. 90-95(g) allowing lab reports to be admitted in drug cases if the state notifies the defendant of its intent to introduce a report and the defendant fails to object survives Melendez-Diaz. It seems to fit within the Court’s analysis of notice-and-demand statutes. Second, the rationale of State v. Forte, 360 N.C. 427 (2006), which held, in part, that the results of serological testing conducted by an SBI agent were nontestimonial business records, has been undermined by Melendez-Diaz. Thus, to admit a report of such testing — or similar testing, such as DNA analysis — without a stipulation by the defendant as to admissibility, the state will need to call the relevant analyst. Third, who is the “relevant analyst”? In other words, what if Analyst A does the testing but is on vacation at the time of trial, so Analyst B testifies? Nothing in Melendez-Diaz addresses this situation directly. My guess — and I’ll defer to Jessie’s opinion, if it differs from mine — is that such a procedure is OK, at least if Analyst B offers an opinion and Analyst A’s report is admitted only as a basis for that opinion, rather than for the truth of the matter asserted. In that scenario, Analyst A’s report isn’t testimonial and so the defendant’s inability cross-examine Analyst A is immaterial. Fourth, what impact will Melendez-Diaz have in DWI cases? My very tentative thoughts are as follows. As to blood and urine tests, G.S. 20-139.1(c1) says that these analyses are admissible in district court, period, and are admissible in superior court if the defendant doesn’t object at least five days before trial. After Melendez-Diaz, I don’t think they’re admissible in district court without the analyst being present, but I suspect that the superior court provision will be held to fit in the notice-and-demand category and so will survive. (I’m less sure about the survival of this statute than I am about the drug statute, which more clearly puts the burden on the state to provide notice.) As to breath tests, which are presently admissible without the Intoxilyzer operator being present under G.S. 20-139.1(a) and State v. Heinricy, 183 N.C. App. 585 (2007), I suspect that they may be admitted now only if the machine operator is present — or, of course, if the defendant stipulates to their admissibility.

I can’t emphasize enough that all of these thoughts are preliminary. I’m still digesting the case and thinking about its North Carolina ramifications. If you disagree with my analysis, post a comment. If you convince me that I’m wrong, I’ll say so. And I’ll post further thoughts, news, and ideas here as they arise.

9 thoughts on “Melendez-Diaz: Crawford Applies to Lab Reports”

  1. Jeff — Perhaps G.S. 20-139.1(e1) will serve as our “notice-and-demand” provision for blood, urine and breath analysts in DWI cases in District Court, although the “notice” part is not explicit.

  2. I agree with Mr. Morgan. As Scalia might say, any way you slice it, admitting test results from anyone other than the actual person who performed the tests simply offends the confrontation clause. Period.

  3. Scalia raises a lot of concerns with how drug testing is done: drylabbing, too much pressure and too many tests to churn out, reports being requested BY law enforcement FOR law enforcement, etc. For these reasons, it seems unlikely that Analyst B’s opinion based solely on Analyst A’s analysis would be admissible; the defense would have no opportunity to cross-examine on these issues.

  4. Analyst A’s report does not become nontestimonial simply because Analyst A doesn’t testify. If it was testimonial when it was prepared, it remains testimonial if it is used to prove in court the content of the substance that was tested. The legal fiction under Rule 703 that Analyst B uses the report as “the basis of” Analyst B’s opinion enables the prosecution to avoid state law hearsay problems. But, as Melendez-Diaz itself demonstrates, evidence can violate the Confrontation Clause even if it satisfies state law rules of evidence. Also, note that if Rule 703 is interpreted to allow the prosecution to use Analyst B’s testimony in this situation, it would allow the prosecution to use a substitute analyst in any situation, without regard to the availability of Analyst A, since Rule 703 does not require the unavailability of the declarant. In short, the Confrotation Clause trumps state law rules of evidence.

  5. A recent case in Boston follows along the same lines as this one. Because federal and state drug crime law now allows a defendant the right to cross-examine the chemist who prepared the drug certificate, and because there are not enough chemists to testify in every drug case, prosecutors are trying a new approach. That approach requires the testimony of the police officer to act a forensic scientist in confirming a drug is illegal.


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