“Testimonial”: Upholding the Sixth Amendment or Hindering Effective Prosecution?

December 01, 2011
Author: Jeremy White

Expert testimony has long been an integral component of efficient criminal prosecution. Often, the expert witness serves not merely to provide mere expert knowledge, but to assist the jury in making connections between pieces of evidence, and drawing accurate conclusions from those connections. Whether evidence presented by an expert witness was testimonial in nature was not a regular consideration until very recently, when two Supreme Court decisions made such an analysis imminently important. The two decisions are, in many ways, compulsory offspring of the Court’s decisions in Crawford v. Washington in 2004, and Davis v. Washington in 2006.1 A brief overview of Crawford and Davis are key in understanding the inevitability of the Court’s most recent decisions in 2009 and 2011.

In Crawford v. Washington the Supreme Court, abandoning its decades-long “adequate indicia of reliability” test,2  held that the Sixth Amendment right of confrontation is to be strictly applied to prior testimonial statements of witnesses, the key factor being found in the word testimonial. More pragmatically, a witness whose statements may traditionally have been admissible, under an exception to the hearsay rule, will no longer be admissible unless the witness is present and able to be cross-examined, or the opposing counsel had a previous opportunity to cross-examine the witness.

The effect that this decision had on the ability of prosecutors to effectively pursue criminal cases was quite far-reaching. However, the ultimate tension that was created lay not in the increased difficulty of assembling one’s witnesses, but in the definition of the term “testimonial.” The Court in Crawford refused to define the term, stating rather bluntly that it would “leave for another day any effort to spell out a comprehensive definition of ‘testimonial.’ Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.”3

Armed with the knowledge that the evidentiary label of “testimonial” applied to statements obtained in preliminary hearings, grand juries, former trials, and police interrogations, prosecutors across the country embarked on a journey into re-charted evidentiary waters. While this non-comprehensive list of “testimonial” statements was, in the Court’s words, a minimum, there was proffered at no point any semblance of a functional “test.” The Court’s conclusion was a sweeping generality, stating that the types of “testimonial” evidence that trigger the Confrontation Clause were those “modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.” 4

The extent of the corollaries of the Court’s decision was not immediately apparent, as the determination of the testimonial nature of evidence merely fell into the hands of individual lower courts. While certainly not a recipe for uniformity within the circuits (which to anyone possessing a modicum of foresight would indicate an inevitable influx of appealed cases), the issue began to see addressing at the circuit court level. The hope was, in the words of the Crawford majority, that their refusal to issue a comprehensive definition could “hardly be any worse than the status quo. . .” and that the redeeming factor was “that the Roberts test [was]  inherently, and therefore permanently, unpredictable.”5  Apparently, the new Crawford test (or rather, lack thereof) was judicially healthier than utilizing the “vague,” “manipulable” Ohio v. Roberts standard.6

However, a mere two years after Crawford, before the process of term-defining could gain any significant momentum in the lower courts, the Supreme Court addressed the issue again in Davis v. Washington.7  While one might certainly have hoped for a more resolute test for determining the “testimonial” nature of evidence, instead what was given was a definition that appeared contradictory, at least in application, to the “test” elucidated in Crawford. The Davis Court stated that statements were non-testimonial “when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.”8

As Justice Thomas remarked, it appeared that in furthering the abandonment of the Robert’s test the Court was adopting “an equally unpredictable test, under which district courts are charged with divining the ‘primary purpose’ of police interrogations.”9  Nonetheless, at least there was an articulable test which one could apply to determine on which side of the testimonial chasm evidence fell.

But, as judicial fate would have it, practical application again raised its head–how does the Crawford-Davis analysis apply to testimony given by expert witnesses, such as a forensic analyst? At first glance, it might seem that such testimony would pass by the requirements of the Confrontation Clause, in lieu of the “reliability”-based criterion placed upon expert witnesses and testimony in Rules 702 and 703 of the Federal Rules of Evidence.10  Specifically, Rule 703 states that if evidence if “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the [expert’s] opinion or inference to be admitted.”11  Read in conjunction with the Federal Rules of Evidence Advisory Committee’s Note,12  it is clear that what Rule 703 does not affect is an expert’s right to rely on information that would be otherwise substantively inadmissible. This does not, however, mean that such information may be disclosed to a jury. The question remains: where is the line to be drawn when applying Crawford and Davis to experts, their testimony, and everything in between?

The Supreme Court spoke squarely to this issue in two recent cases, Melendez-Diaz v. Massachusetts and Bullcoming v. New Mexico.13  In Melendez-Diaz, the Court held “that a forensic laboratory report stating that a suspect substance was cocaine ranked as testimonial for purposes of the Sixth Amendment's Confrontation Clause. . .” because it “had been created specifically to serve as evidence in a criminal proceeding.”14

The issue becomes difficult in the situation when a forensic technician who, unlike many law enforcement officers, does not have an administratively scheduled “day in court,” and is the only signatory of a lab report. The Court, in applying Crawford to the facts in Melendez-Diaz, stated that “under [the] decision in Crawford the analysts' affidavits were testimonial statements, and the analysts were ‘witnesses’ for purposes of the Sixth Amendment.”15

In what appeared to be a last attempt to evade what many viewed as an oncoming, prosecutorial stumbling block, the New Mexico Supreme Court in its decision Bullcoming v. New Mexico advanced several arguments for why admission of blood-alcohol reports, though testimonial, did not violate the Confrontation Clause. First, the Court argued that the analyst who certified the report was a “mere scrivener” who “simply transcribed the results generated by the gas chromotograph machine.”16  Secondly, the court argued that the lab analyst “qualified as an expert witness with respect to the gas chromatograph machine.”17

Upon granting of certiorari, the Supreme Court answered the very narrow question of whether the Confrontation Clause permits a prosecutor to introduce a “forensic laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimony of a analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification.”18  The Court in Bullcoming ultimately held that the formalities that were integral to the blood-alcohol report’s analysis were sufficient to render the report “testimonial,” and that Melendez–Diaz had clarified that “[a]document created solely for an ‘evidentiary purpose’ . . .made in aid of a police investigation, ranks as testimonial.”19

What one is left with is a steadfast rule regarding the admissibility of testimonial evidence. One is also left with a semblance of a test for determining what precisely qualifies as “testimonial.” And one is left with the knowledge, as a prosecutor, that there will inevitably be cases that will be pled down, nolle prosequied, or even dismissed because of the inadmissibility of a forensic report. A lab technician who analyzed contraband may be unavailable. An arresting officer who conducted a BAC screening may be deployed overseas. Only time will tell whether the Supreme Court’s professed attempt to adhere to the intent of the Sixth Amendment will effectively serve to do so.

1 Crawford v. Washington, 541 U.S. 36 (2004); Davis v. Washington, 547 U.S. 813 (2006).
2 Ohio v. Roberts, 448 U.S. 56, 72, (1980).
3 Crawford, 541 U.S. at 68.
4 Id.
5 Id. at 68 n. 10 (acknowledging C.J. Rehnquist’s concurring remarks).
6 Id. at 68.
7 547 U.S. 813 (2006).
8 Davis, 547 U.S. at 822.
9 Id. at 834 (J. Thomas, concurring in the judgment in part and dissenting in part).
10 FED. R. EVID. 703
11 Id.
12 Id. (Committee Notes on Rules, 2000 Amendment)
13 Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009); Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011).
14 Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011).
15 Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 (2009)
16 Bullcoming v. New Mexico, 226 P.3d 1, 8-9 (2005)
17 Id. at 9.
18 Bullcoming v. New Mexico, 131 S. Ct. 2705, 2713 (2011).
19 Bullcoming, 131 S. Ct. at 2705.