Criminal Procedure
Theory and Practice

Second Edition

by Jefferson L. Ingram


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Chapter 1 Update 1.15

Constitution and the Bill of Rights: The Source of Protections for the Accused

Melendez-Diaz v. Massachusetts


Significance of the Case: The use of notarized certificates attesting to particular facts derived from laboratory testing prepared out of court and offered for positive evidentiary proof violates the Sixth Amendment right to confront and cross-examine adverse witnesses because the certificates constituted testimonial statements.

Melendez-Diaz v. Massachusetts

Supreme Court of the United States

557 U.S. ___, 2009 U.S. LEXIS 4734 (2009)


Melendez-Diaz was tried on charges alleging that he distributed cocaine and trafficked in cocaine. During the state court drug trial, the prosecution introduced notarized affidavits of state laboratory analysts stating that material seized by police and connected to petitioner was cocaine of a certain composition, quantity and net weight. The certificates were submitted as prima facie evidence of what they asserted and a jury convicted Melendez-Diaz of both distributing and trafficking in cocaine.

Melendez-Diaz appealed his convictions on the grounds that the admission of the certificates violated his right under the Sixth Amendment to the United States Constitution to confront his accusers, the analysts who signed the certificates. According to Crawford v. Washington, [541 U.S. 36 (2004)], 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 and incentive for cross-examination.

The Appeals Court of Massachusetts affirmed the conviction and the Supreme Judicial Court of Massachusetts denied review. The United States Supreme Court granted certiorari.

Procedural Issue:

Does a state violate the Sixth Amendment right to confront and cross-examine adverse witnesses when it admits notarized certificates of a state laboratory analyst identifying substances connected to a defendant as cocaine without requiring the analyst to testify in open court?

Held: Yes


Justice Scalia delivered the opinion of the Court.

* * *


The Sixth Amendment to the United States Constitution, made applicable to the States via the Fourteenth Amendment, Pointer v. Texas , 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965), provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." In Crawford[v. Washington, 541 U.S. 36 (2004)] , after reviewing the Clause's historical underpinnings, we held that it guarantees a defendant's right to confront those "who 'bear testimony'" against him. 541 U.S., at 51. A witness's testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination. Id., at 54.

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

`"Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its functional equivalent -- that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Id. , at 51-52, 124 S. Ct. 1354, 158 L. Ed. 2d 177 .

There is little doubt that the documents at issue in this case fall within the "core class of testimonial statements" thus described. Our description of that category mentions affidavits twice. See also White v. Illinois , 502 U.S. 346, 365 (1992) (THOMAS, J., concurring in part and concurring in judgment) ("[T]he Confrontation Clause is implicated by extrajudicial statements only insofar as they are contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions"). The documents at issue here, while denominated by Massachusetts law "certificates," are quite plainly affidavits: "declaration[s] of facts written down and sworn to by the declarant before an officer authorized to administer oaths." Black's Law Dictionary 62 (8th ed. 2004). They are incontrovertibly a "'solemn declaration or affirmation made for the purpose of establishing or proving some fact.'" Crawford, supra, at 51, (quoting 2 N. Webster, An American Dictionary of the English Language (1828)). The fact in question is that the substance found in the possession of Melendez-Diaz and his codefendants was, as the prosecution claimed, cocaine -- the precise testimony the analysts would be expected to provide if called at trial. The "certificates" are functionally identical to live, in-court testimony, doing "precisely what a witness does on direct examination." Davis v. Washington , 547 U.S. 813, 830 (2006) (emphasis deleted).

Here, moreover, not only were the affidavits "'made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,'" Crawford, supra, at 52, but under Massachusetts law the sole purpose of the affidavits was to provide "prima facie evidence of the composition, quality, and the net weight" of the analyzed substance, Mass. Gen. Laws, ch. 111, § 13. We can safely assume that the analysts were aware of the affidavits' evidentiary purpose, since that purpose -- as stated in the relevant state-law provision -- was reprinted on the affidavits themselves.

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.


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

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

A review of cases that predate the Roberts era yields a mixed picture. As the dissent notes, three state supreme court decisions from the early 20th century denied confrontation with respect to certificates of analysis regarding a substance's alcohol content. See post, at 21 (citing cases from Massachusetts, Connecticut, and Virginia). But other state courts in the same era reached the opposite conclusion. See Torres v. State , 18 S.W.2d 179, 180 (Tex. Crim. App. 1929); Volrich v. State , 4 Ohio Law Abs. 253, 1925 WL 2473 (Ohio App. 1925). At least this much is entirely clear: In faithfully applying Crawford to the facts of this case, we are not overruling 90 years of settled jurisprudence. It is the dissent that seeks to overturn precedent by resurrecting Roberts a mere five years after it was rejected in Crawford .

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


Respondent first argues that the analysts are not subject to confrontation because they are not "accusatory" witnesses, in that they do not directly accuse petitioner of wrongdoing; rather, their testimony is inculpatory only when taken together with other evidence linking petitioner to the contraband. See Brief for Respondent 10. This finds no support in the text of the Sixth Amendment or in our case law.

The Sixth Amendment guarantees a defendant the right "to be confronted with the witnesses against him ." (Emphasis added.) To the extent the analysts were witnesses (a question resolved above), they certainly provided testimony against petitioner, proving one fact necessary for his conviction -- that the substance he possessed was cocaine. The contrast between the text of the Confrontation Clause and the text of the adjacent Compulsory Process Clause  confirms this analysis. While the Confrontation Clause guarantees a defendant the right to be confronted with the witnesses "against him," the Compulsory Process Clause guarantees a defendant the right to call witnesses "in his favor." U.S. Const., Amdt. 6. The text of the Amendment contemplates two classes of witnesses -- those against the defendant and those in his favor. The prosecution must produce the former; 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. * * *


* * *

A [different] 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. * * *

A third respect in which the dissent asserts that the analysts are not "conventional" witnesses and thus not subject to confrontation is that their statements were not provided in response to interrogation. Ibid . See also Brief for Respondent 29. As we have explained "[t]he Framers were no more willing to exempt from cross-examination volunteered testimony or answers to open-ended questions than they were to exempt answers to detailed interrogation." Davis , supra , at 822-823, n. 1. Respondent and the dissent cite no authority, and we are aware of none, holding that a person who volunteers his testimony is any less a "'witness against' the defendant," Brief for Respondent 26, than one who is responding to interrogation. * * *


Respondent claims that there is a difference, for Confrontation Clause purposes, between testimony recounting historical events, which is "prone to distortion or manipulation," and the testimony at issue here, which is the "resul[t] of neutral, scientific testing." Brief for Respondent 29. Relatedly, respondent and the dissent argue that confrontation of forensic analysts would be of little value because "one would not reasonably expect a laboratory professional . . . to feel quite differently about the results of his scientific test by having to look at the defendant." Id., at 31 (internal quotation marks omitted); see post , at 10-11.

This argument is little more than an invitation to return to our overruled decision in Roberts , 448 U.S. 56, which held that evidence with "particularized guarantees of trustworthiness" was admissible notwithstanding the Confrontation Clause. Id., at 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597. * * *

Nor is it evident that what respondent calls "neutral scientific testing" is as neutral or as reliable as respondent suggests. Forensic evidence is not uniquely immune from the risk of manipulation. According to a recent study conducted under the auspices of the National Academy of Sciences, "[t]he majority of [laboratories producing forensic evidence] are administered by law enforcement agencies, such as police departments, where the laboratory administrator reports to the head of the agency." National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward 6-1 (Prepublication Copy Feb. 2009) (hereinafter National Academy Report). And "[b]ecause forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency." Id. , at S-17. A forensic analyst responding to a request from a law enforcement official may feel pressure -- or have an incentive -- to alter the evidence in a manner favorable to the prosecution.

Confrontation is one means of assuring accurate forensic analysis. * * * And, of course, the prospect of confrontation will deter fraudulent analysis in the first place.

Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well. Serious deficiencies have been found in the forensic evidence used in criminal trials. One commentator asserts that "[t]he legal community now concedes, with varying degrees of urgency, that our system produces erroneous convictions based on discredited forensics." Metzger, Cheating the Constitution, 59 Vand. L. Rev. 475, 491 (2006). One study of cases in which exonerating evidence resulted in the overturning of criminal convictions concluded that invalid forensic testimony contributed to the convictions in 60% of the cases. Garrett & Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, 95 Va. L. Rev. 1, 14 (2009). And the National Academy Report concluded:

"The forensic science system, encompassing both research and practice, has serious problems that can only be addressed by a national commitment to overhaul the current structure that supports the forensic science community in this country." National Academy Report P-1 (emphasis in original).

Like expert witnesses generally, an analyst's lack of proper training or deficiency in judgment may be disclosed in cross-examination.

* * *


* * *


Respondent asserts that we should find no Confrontation Clause violation in this case because petitioner had the ability to subpoena the analysts. But that power -- whether pursuant to state law or the Compulsory Process Clause -- is no substitute for the right of confrontation. Unlike the Confrontation Clause, those provisions are of no use to the defendant when the witness is unavailable or simply refuses to appear. See, e.g. , Davis , 547 U.S., at 820. ("[The witness] was subpoenaed, but she did not appear at . . . trial"). Converting the prosecution's duty under the Confrontation Clause into the defendant's privilege under state law or the Compulsory Process Clause shifts the consequences of adverse-witness no-shows from the State to the accused. More fundamentally, the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court. Its value to the defendant is not replaced by a system in which the prosecution presents its evidence via ex parte affidavits and waits for the defendant to subpoena the affiants if he chooses.


Finally, respondent asks us to relax the requirements of the Confrontation Clause to accommodate the "'necessities of trial and the adversary process.'" Brief for Respondent 59. It is not clear whence we would derive the authority to do so. The Confrontation Clause may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination. The Confrontation Clause -- like those other constitutional provisions -- is binding, and we may not disregard it at our convenience.

* * *

This case involves little more than the application of our holding in Crawford v. Washington , 541 U.S. 36 [2004]. 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. 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.

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