In an interesting turn of its docket this year, the U.S. Supreme Court agreed to hear a case with an almost identical issue as a controversial decision from its last term.¹ That second bite at the apple, however, did not bear fruit, with this year’s Court issuing a one-sentence opinion and sending it back down to the Virginia Supreme Court, merely instructing its members to make their ruling consistent with last year’s Melendez-Diaz v. Massachusetts.² The Melendez-Diaz decision addressed the practice of using evidence affidavits in lieu of in-person testimony by forensic examiners, holding that the practice violates the Sixth Amendment to the U.S. Constitution. This article explores this decision and its implications for prosecutors relying on such examinations.³

Melendez-Diaz v. Massachusetts

In Melendez-Diaz v. Massachusetts, the court expounded on its previous ruling in the landmark case Crawford v. Washington, where it interpreted and explored the application of the constitutional provision found in the Sixth Amendment to the Constitution known as the Confrontation Clause. The Sixth Amendment’s Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him.”⁴ This bedrock procedural guarantee applies to both federal and state prosecutions.⁵ In the procedural history of Melendez-Diaz v. Massachusetts, the Massachusetts courts admitted into evidence affidavits reporting the results of forensic analysis, which showed that material seized by the police and connected to the defendant was cocaine. The case hinges on the issue of whether those affidavits are testimonial, rendering the affiants witnesses subject to the defendant’s right of confrontation under the Sixth Amendment.⁶

Melendez-Diaz objected to the admission of the certificates. He argued that the Confrontation Clause decision in Crawford v. Washington¹¹ required the analysts to testify in person. The trial court admitted the certificates, as was usual practice and pursuant to state law, as “prima facie evidence of the composition, quality, and the net weight of the narcotic...analyzed.”¹² Melendez-Diaz was found guilty. He appealed, contending, among other things, that admission of the certificates violated his Sixth Amendment right to be confronted with the witnesses against him.¹³

Justice Antonin Scalia, writing for a majority of the court, found that this rather common practice in many courts was, in fact, a violation of the defendant’s Sixth Amendment right to confront witnesses against him. They decided that the affidavits in question were testimonial in nature; that is, they were paper substitutes for live witnesses—live witnesses who can and should be cross-examined.¹⁴ To justify this outcome, the court relied on its previous ruling in Crawford v. Washington, where it explored the length and breadth of the confrontation clause.¹⁵

Crawford v. Washington

In 2004, the U.S. Supreme Court addressed the parameters of the Confrontation Clause in Crawford v. Washington.¹⁶ In this case, a recorded statement of a spouse was used against her husband in his prosecution. The marital privilege prevented the wife from testifying, so the prosecutor submitted her recorded statement. Crawford argued that this was a violation of his right to confront witnesses against him under the Sixth Amendment, and the Supreme Court agreed.¹⁷ The court concluded that the Confrontation Clause applies to witnesses against the accused, meaning “those who bear testimony.” Relying on this, the court stated, “The Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.”¹⁸ The court determined that a prior opportunity for cross-examination was mandatory and dispositive of whether or not testimonial statements of an unavailable witness are admissible. “Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty.”¹⁹ Elaborating on the text of the Confrontation Clause, ²⁰ the court stated,

It applies to “witnesses” against the accused—in other words, those who “bear testimony.”²¹ “Testimony,” in turn, is typically “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.”²² An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. The constitutional text, like the history underlying the common-law right of confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement.²³

The Ruling in Melendez-Diaz

The opinion authored by Justice Scalia described the class of testimonial statements covered by the Confrontation Clause as follows:

Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its functional equivalent—that is, material, such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements ...contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.²⁴

The affidavits presented at the Melendez-Diaz trial were found by the majority of the court to fit into the above class and, were to them, very clearly affidavits and, thereby, subject to the Confrontation Clause.

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.²⁵ The Confrontation Clause is implicated by extrajudicial statements only insofar as they are contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions. The documents at issue here, while denominated by Massachusetts law “certificates,” are quite plainly affidavits: “declaration [s] of facts written down and sworn to by the declarant before an officer authorized to administer oaths.”²⁶ They are incontrovertibly a “solemn declaration or affirmation made for the purpose of establishing or proving some fact.”²⁷ The fact in question is that the substance found in the possession of Melendez-Diaz and his codefendants was, as the prosecution claimed, cocaine—the precise testimony the analysts would be expected to provide if called at trial. The “certificates” are functionally identical to live, in-court testimony, doing “precisely what a witness does on direct examination.”²⁸

According to the court in Melendez-Diaz, “our decision in Crawford [was that] 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.”²⁹

Application of Melendez-Diaz v. Massachusetts

Since the decision in Melendez-Diaz, there have been a number of cases where defendants have invoked the case to raise the question as to whether their Confrontation Clause rights had been violated.³⁰ Defendants have tried to stretch the opinion in Melendez-Diaz to fit other circumstances where they believed there has been a violation.

In United States v. Forstell, Officer Pente Gillespie of the U.S. Park Police stopped defendant Scott P. Forstell while he was driving on the George Washington Parkway. Forstell was pulled over for speeding 62 miles per hour in a 40 miles-per-hour zone. While conversing with the defendant, Officer Gillespie noticed that Forstell smelled of alcohol and that his eyes appeared red and glassy. After the defendant was unable to perform a series of roadside sobriety tests satisfactorily, Officer Gillespie transported Forstell to a station house to administer a breathalyser test to him.³¹

At Forstell’s trial, the government called Officer Gillespie to testify about the events of May 8, 2009, and moved for the admission of five exhibits. Government Exhibit 1 is a certificate signed by a technician with the Radar Lab of Maryland certifying that a Speed Measuring Radar Device had been checked for accuracy and correctness of operation. Government Exhibit 2 is a certificate signed by a technician of the Radar Lab of Maryland certifying that tuning forks bearing serial numbers 093050 and 093084 had been tested and found to be operating properly.³² Government Exhibit 3 is the Intoxilyzer 5000EN Maintenance Record for the Intoxilyzer unit bearing serial number 68-*580 010813.³³ Government Exhibit 4 is a certification notice for Intoxilyzer model 5000EN, serial number 68-010813,³⁴ and notes that the model has been tested and found to be suitable for use in analyzing breath alcohol.³⁵ Government Exhibit 5 is the results report for two breath tests administered to Scott P. Forstell on May 8, 2009, by Officer Gillespie.

Forstell claimed the admission of Government Exhibits 1 through 5 violated his rights under the Confrontation Clause as articulated in Melendez-Diaz v. Massachusetts. Forstell believed the accuracy of Government Exhibits 3 and 4 had not been established because the government did not provide testimony of the person who certified Government Exhibits 3 and 4 and did not allow him to cross-examine that person.³⁶

In Forstell, the court first examined Melendez-Diaz and then applied that ruling to its own facts.

In the instant case, Officer Gillespie testified that Sergeant Donald N. Upright, the U.S. Park Police technician who signed the certificates presented as Government Exhibits 3 and 4, was not present in the courtroom. Similarly, the technician who signed the certifications of accuracy for the laser and tuning fork, presented as Government Exhibits 1 and 2, respectively, also was not present in the courtroom. It is the defendant’s position that exhibits 1 through 4 should not be admitted in the absence of the technicians’ testimony. It is clear, however, that Government Exhibits 1 through 4 are nontestimonial and, thus, their admission does not run afoul of the Confrontation Clause. Indeed, the Melendez-Diaz decision explicitly notes that the court “d[id] not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of sample, or accuracy of the testing device,³⁷ must appear in person as part of the prosecution’s case.³⁸ Additionally, documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records.”

The court further reasoned that Forstell did not argue that the certificates did anything more than verify the accuracy of the testing devices and equipment used by the U.S. Park Police. It concluded the information contained in Government Exhibits 1 through 4 merely confirmed that routine accuracy and maintenance tests were performed on the laser device, tuning fork, and Intoxilyzer 5000EN unit. Certificates regarding such routine information fit squarely into the category of nontestimonial records carved out by the Supreme Court. Thus, the government is not required to make available at trial the technicians who performed the tests for the certificates to be admissible.³⁹

When it came to the admission of Government Exhibit 5, it also was found not to be a violation of the Confrontation Clause. Government Exhibit 5 contained the results from the breath test administered to the defendant by Officer Gillespie. In addition to offering the exhibit at trial, the prosecution called Officer Gillespie to testify as to the steps he performed in administering the breath test to the defendant. Officer Gillespie stated that upon arriving at the District-2 substation, he offered the defendant a glass of water, read him his rights, and quoted him the chemical testing notice contained in 36 C.F.R. § 4.23. The defendant then indicated he would take the breath test. Officer Gillespie further testified that he sat across from the defendant for the requisite 20-minute waiting and observation period before administering the test and that the defendant did not vomit, hiccup, or burp during that time. Before conducting the test, Officer Gillespie inspected the defendant’s mouth, as required, and then administered the first breath test at 1:52 a.m. The second breath test was conducted at 1:58 a.m. According to the officer’s testimony, there was no radio interference with the test, and, before administering the test, he reviewed the unit’s log book to verify that no problems had been logged with previous tests.⁴⁰

Finally, Officer Gillespie testified that he looked at the certification sticker on the Intoxilyzer unit to be sure that the expiration had not passed and also checked to be sure the solution in the unit had not expired. Accordingly, the defendant had the opportunity to cross-examine Officer Gillespie regarding any or all of these steps to determine whether he properly performed the test. Thus, with respect to Government Exhibit 5, the defendant’s right to confrontation was satisfied by his cross-examination of Officer Gillespie.⁴¹

In State v. Murphy, the defendant tried to apply Melendez-Diaz to the admission of a certificate issued by the secretary of state relating to the suspension of his driver’s license.⁴² Officer Christopher Woodcock, a police officer with the Cumberland Police Department, observed a vehicle stopped at a road that intersects Route 100 in Gray. Believing that he had pulled over the same driver days earlier for operating after suspension, Officer Woodcock turned his vehicle around and increased his speed in an attempt to view the vehicle’s license plate number. He soon regained visual contact with the vehicle and eventually came upon it, with Murphy still inside, parked in a driveway. After running a check on the car’s license plate, Officer Woodcock confirmed that Murphy’s license was suspended. He made contact with Murphy and obtained his license, registration, and insurance information.⁴³

Murphy was charged with and pleaded not guilty to operating while license suspended or revoked⁴⁴ and unlawful use of a license.⁴⁵ Before trial, Murphy moved to exclude from evidence a certificate issued by the secretary of state, asserting that the admission of the certificate would violate his Sixth Amendment right to confront witnesses.⁴⁶

The Supreme Judicial Court of Maine ruled “Melendez-Diaz might be interpreted as extending the definition of testimony beyond sworn certificates addressing scientific analysis prepared for purposes of a criminal prosecution, to include sworn certificates that authenticate and summarize routine governmental records. The opinion contains conflicting signals on this point. The court’s majority recognized that, by their nature, business and public records are not testimonial.”⁴⁷

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.⁴⁸

The court concluded that neither the certificate nor the records to which it refers are primarily maintained and employed for purposes of criminal prosecution. Identical certificates are routinely prepared for nonprosecutorial purposes, such as administrative motor vehicle proceedings and insurance-related inquiries.

The nature of the Confrontation Clause itself also guided the Murphy court.

Cross-examination guarantees that the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief. Cross-examination has far less utility with respect to the information contained in the certificate at issue here. The Bureau’s collection and maintenance of motor vehicle license-related information are largely automated, and the data collected are not subject to any serious interpretation, judgment, or analysis. Our constitutional analysis should not ignore the context in which these records are produced. Because neutral, bureaucratic information from routinely maintained public records is not obtained by use of specialized methodology, there is little, if any, practical benefit to applying the crucible of cross-examination against those who maintain the information.⁴⁹

Defendants have asserted Melendez-Diaz violations regarding the admission of varied types of records maintained by police departments. In State v. Fitzwater, an officer in Hawaii issued a speeding ticket to a motorcyclist after “pacing” the motorcycle doing 70 miles per hour in a 30 miles-per-hour zone.⁵⁰ The defendant claimed his right to confrontation had been violated pursuant to Melendez-Diaz because the prosecution introduced into evidence a speed-check card. The speed-check card was a record kept routinely by the police verifying the accuracy of the speedometers on police vehicles. Fitzwater claimed he had a right to confront the mechanic who performed the test. Using similar reasoning related to business records, the Supreme Court of Hawaii rejected Fitzwater’s claims. The speed-check cards were not prepared with prosecution in mind and were kept in the ordinary course of business; additionally, the officer driving the vehicle testified and was cross-examined by the defendant.⁵¹

Other attempts at applying Melendez-Diaz have included challenges to DNA results when a technician other than the one who conducted the test testified and the report was admitted. The Appellate Court of Illinois rejected this assertion—explaining confrontation was satisfied by the testifying technician who interpreted the results of the admitted report on the stand. Because the witness was a qualified technician able to testify about the report, there was no need to call the actual testing technician.⁵² Finally, the Confrontation Clause and Melendez-Diaz do not apply in probation revocation hearings, making probation reports admissible without the testimony of the preparer.⁵³

Conclusion

The decision in Melendez-Diaz provides additional clarity on the use of live testimony over the introduction of testimonial documents. Certain circumstances, such as the laboratory reports prepared for prosecution in the Melendez-Diaz case, require a person take the stand and be subject to cross-examination, instead of merely submitting the testimonial document. This is in keeping with the Sixth Amendment right to confront witnesses against you. Determining when a document is testimonial is a new issue that lower courts still are exploring on a case-by-case basis.

Endnotes

¹ Magruder v. Commonwealth of Virginia, 275 Va. 283, 657 S.E.2d 113 Va., (2008).

² Briscoe v. Virginia, 130 S. Ct. 1316 (Mem) U.S., (2010).

³ Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 U.S.Mass., (2009).

⁴ Id.

⁵ Pointer v. Texas, 380 U.S. 400, 406, 85 S. Ct. 1065, 13 L.Ed.2d 923 (1965).

⁶ Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 U.S.Mass., (2009).

⁷ Id.

⁸ Ch. 94C, §§ 32A, 32E(b)(1).

⁹ App. to Pet. for Cert. 24a, 26a, 28a.

¹⁰ Mass. Gen. Laws, ch. 111, § 13.

¹¹ Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L.Ed.2d 177 (2004).

¹² Mass. Gen. Laws, ch. 111, § 13.

¹³ Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 U.S.Mass., (2009).

¹⁴ Id.

¹⁵ Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L.Ed.2d 177 (2004).

¹⁶ Id.

¹⁷ Id.

¹⁸ Id.

¹⁹ Id.

²⁰ The most famous out-of-court statements in legal history used against a defendant on trial is the treason case of Sir Walter Raleigh. Raleigh was being tried in England for treason, a plot to remove the King; the evidence against him came mostly from the forced confession of an alleged coconspirator, Lord Cobham. Cobham’s confession was placed into evidence, but Raleigh was repeatedly denied the opportunity to confront his accuser. The trial of Raleigh is notorious in the annuls of legal history; it is often cited as being the catalyst for the Sixth Amendment, Confrontation Clause.

²¹ 2 N. Webster, An American Dictionary of the English Language (1828).

²² Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L.Ed.2d 177 (2004).

²³ Id.

²⁴ Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 U.S.Mass., (2009).

²⁵ See also White v. Illinois, 502 U.S. 346, 365, 112 S. Ct. 736, 116 L.Ed.2d 848 (1992) (THOMAS, J., concurring in part and concurring in judgment).

²⁶ Black’s Law Dictionary 62 (8th ed.2004).

²⁷ Crawford, supra, at 51, 124 S. Ct. 1354 (quoting 2 N. Webster, An American Dictionary of the English Language (1828)).

²⁸ Davis v. Washington, 547 U.S. 813, 830, 126 S. Ct. 2266, 165 L.Ed.2d 224 (2006) (emphasis deleted).

²⁹ Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 U.S.Mass., (2009).

³⁰ Melendez-Diaz has even found its way into the employment context. In Sutera v. Transportation Sec. Admin., Sutera was employed as a lead transportation security officer by defendant Transportation Security Administration (TSA). TSA policy requires employees to report to work free from any effects of alcohol or drugs; it mandates removal for offenses that involve the use of drugs or alcohol. The policy requires random drug and alcohol testing of designated classes of employees, including transportation security officers, such as Sutera, because they occupy safety- or security-sensitive positions. Sutera was asked to provide a urine sample for a random drug test. Following the test, the TSA held three predecisional meetings with plaintiff, informing and discussing with him the fact that his sample tested positive for marijuana. After his termination, Sutera invoked Melendez-Diaz, claiming that during his administrative hearings, he never was afforded the opportunity to confront the person or persons who tested his urine. The U.S. District Court for the Eastern District of New York was quick to point out that confrontation was a right reserved for “criminal” prosecutions and not informal administrative hearings.

³¹ United States v. Forstell, 656 F.Supp.2d 578, E.D.Va. (2009).

³² Specifically, the certificate states that the transmitter frequency of the Speed Measuring Radar Device bearing the serial number G2-2651 had been tested and found to be within the prescribed limits. According to the certificate, the Speed Measuring Radar Device is certified accurately within +/-1 mph (+/-2 kph) in stationary mode and/or +/-1 mph (+/-2 kph) in moving mode. Antenna 1, bearing serial number G2-05114 was found to have a transmitter frequency of 35.600 Ghz and a maximum aperture power density of 0.15 mw om. Antenna 1, bearing serial number G2-02981, was found to have a transmitter frequency of 35.600 Ghz and a maximum aperture power density of 0.15 mw om. In addition to noting that the laser being certified was model type GEN II, the certificate lists two serial numbers for associated units. These serial numbers, 093050 and 093084 match the serial numbers of the tuning forks that are the subject of the certificate marked Government Exhibit 2. Finally, the certificate marked as Government Exhibit 1 bears an expiration date of April 16, 2010.

³³ Specifically, the certificate states that the tuning fork bearing serial number 093050 had been tested and found to oscillate at 3.74=5 Hz at 70 degrees Fahrenheit and will cause a Doppler traffic radar transmitting at 35.600 GHz to display 35.2 MPH Km/h and that the tuning fork bearing serial number 093084 has been tested and found to oscillate at 5.37 =5 Hz at 70 degrees Fahrenheit and will cause a Doppler traffic radar transmitting at 35.600 GHz to display 50.6 MPH KM/h.

³⁴ The certificate, which is signed by Sergeant Donald N. Upright, a technician in the Traffic Safety Unit of the U.S. Park Police, indicates that on April 14, 2009, maintenance and instrument checks were performed on the Intoxilyzer unit.

³⁵ United States v. Forstell, 656 F.Supp.2d 578, E.D.Va. (2009).

³⁶ Id.

³⁷ 129 S. Ct. at n. 1. See also Larkin v. Yates, 2009 WL 2049991, n. 2 (C.D.Cal.2009) (noting that Melendez-Diaz “explicitly rejected the suggestion that the Confrontation Clause required that every person whose testimony might be relevant to the authenticity of sample or accuracy of a testing device appear in person as part of the prosecution’s case”).

³⁸ Melendez-Diaz, 129 S. Ct. at n. 1.

³⁹ United States v. Forstell, 656 F.Supp.2d 578, E.D.Va. (2009).

⁴⁰ Id.

⁴¹ Id.

⁴² State v. Murphy, 991 A.2d 35, 2010 ME 28.

⁴³ Id.

⁴⁴ (Class E), 29-A M.R.S. § 2412-A(1-A)(D).

⁴⁵ (Class E), 29-A M.R.S. § 2102(1) (2009).

⁴⁶ State v. Murphy, 991 A.2d 35, 2010 ME 28.

⁴⁷ Id.

⁴⁸ Id.

⁴⁹ Id.

⁵⁰ State v. Fitzwater, 122 Hawaii 354, 227 P.3d 520 Hawaii (2010).

⁵¹ Id.

⁵² People v. Johnson, 394 Ill.App.3d 1027, 333 Ill.Dec., 774 Ill.App. 1 Dist., (2009).

⁵³ People v. Gomez, 181 Cal.App.4th 1028, 104 Cal.Rptr.3d 683, Cal.App. 2 Dist., (2010).