(Slip Opinion) OCTOBER TERM, 2008 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

MELENDEZ-DIAZ v. MASSACHUSETTS 

CERTIORARI TO THE APPEALS COURT OF MASSACHUSETTS 

No. 07–591. Argued November 10, 2008—Decided June 25, 2009 

At petitioner’s state-court drug trial, the prosecution introduced certificates of state laboratory analysts stating that material seized by police and connected to petitioner was cocaine of a certain quantity. As 

required by Massachusetts law, the certificates were sworn to before

a notary public and were submitted as prima facie evidence of what

they asserted. Petitioner objected, asserting that Crawford v. Washington, 541 U. S. 36, required the analysts to testify in person. The

trial court disagreed, the certificates were admitted, and petitioner

was convicted. The Massachusetts Appeals Court affirmed, rejecting 

petitioner’s claim that the certificates’ admission violated the Sixth 

Amendment. 

Held: The admission of the certificates violated petitioner’s Sixth

Amendment right to confront the witnesses against him. Pp. 3–23.

(a) Under Crawford, 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 for crossexamination. 541 U. S., at 54. The certificates here are affidavits, 

which fall within the “core class of testimonial statements” covered 

by the Confrontation Clause, id., at 51. They asserted that the substance found in petitioner’s possession was, as the prosecution

claimed, cocaine of a certain weight—the precise testimony the analysts would be expected to provide if called at trial. Not only were the 

certificates made, as Crawford required for testimonial statements,

“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 52, but under the relevant Massachusetts law their 

sole purpose was to provide prima facie evidence of the substance’s 

composition, quality, and net weight. Petitioner was entitled to “be 

confronted with” the persons giving this testimony at trial. Id., at 54. 
2 MELENDEZ-DIAZ v. MASSACHUSETTS 

Syllabus 

Pp. 3–5.

(b) The arguments advanced to avoid this rather straightforward 

application of Crawford are rejected. Respondent’s claim that the

analysts are not subject to confrontation because they are not “accusatory” witnesses finds no support in the Sixth Amendment’s text or

in this Court’s case law. The affiants’ testimonial statements were 

not “nearly contemporaneous” with their observations, nor, if they 

had been, would that fact alter the statements’ testimonial character. 

There is no support for the proposition that witnesses who testify regarding facts other than those observed at the crime scene are exempt from confrontation. The absence of interrogation is irrelevant; 

a witness who volunteers his testimony is no less a witness for Sixth

Amendment purposes. The affidavits do not qualify as traditional official or business records. The argument that the analysts should not

be subject to confrontation because their statements result from neutral scientific testing is little more than an invitation to return to the 

since-overruled decision in Ohio v. Roberts, 448 U. S. 56, 66, which 

held that evidence with “particularized guarantees of trustworthiness” was admissible without confrontation. Petitioner’s power to

subpoena the analysts is no substitute for the right of confrontation.

Finally, the requirements of the Confrontation Clause may not be relaxed because they make the prosecution’s task burdensome. In any 

event, the practice in many States already accords with today’s decision, and the serious disruption predicted by respondent and the dissent has not materialized. Pp. 5–23. 

69 Mass. App. 1114, 870 N. E. 2d 676, reversed and remanded. 

SCALIA, J., delivered the opinion of the Court, in which STEVENS, 

SOUTER, THOMAS, and GINSBURG, JJ., joined. THOMAS, J., filed a concurring opinion. KENNEDY, J., filed a dissenting opinion, in which ROBERTS, C. J., and BREYER and ALITO, JJ., joined. 
_________________ 

_________________ 

Cite as: 557 U. S. ____ (2009) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 07–591 

LUIS E. MELENDEZ-DIAZ, PETITIONER v.

MASSACHUSETTS 

ON WRIT OF CERTIORARI TO THE APPEALS COURT OF

MASSACHUSETTS

[June 25, 2009] 

JUSTICE SCALIA delivered the opinion of the Court. 

The Massachusetts courts in this case 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 question

presented is whether those affidavits are “testimonial,” 

rendering the affiants “witnesses” subject to the defendant’s right of confrontation under the Sixth Amendment. 

I 

In 2001, Boston police officers received a tip that a 

Kmart employee, Thomas Wright, was engaging in suspicious activity. The informant reported that Wright repeatedly received phone calls at work, after each of which 

he would be picked up in front of the store by a blue sedan, 

and would return to the store a short time later. The 

police set up surveillance in the Kmart parking lot and 

witnessed this precise sequence of events. When Wright 

got out of the car upon his return, one of the officers detained and searched him, finding four clear white plastic

bags containing a substance resembling cocaine. The 

officer then signaled other officers on the scene to arrest 
2 MELENDEZ-DIAZ v. MASSACHUSETTS 

Opinion of the Court 

the two men in the car—one of whom was petitioner Luis 

Melendez-Diaz. The officers placed all three men in a

police cruiser.

During the short drive to the police station, the officers 

observed their passengers fidgeting and making furtive

movements in the back of the car. After depositing the 

men at the station, they searched the police cruiser and

found a plastic bag containing 19 smaller plastic bags 

hidden in the partition between the front and back seats.

They submitted the seized evidence to a state laboratory

required by law to conduct chemical analysis upon police 

request. Mass. Gen. Laws, ch. 111, §12 (West 2006). 

Melendez-Diaz was charged with distributing cocaine

and with trafficking in cocaine in an amount between 14 

and 28 grams. Ch. 94C, §§32A, 32E(b)(1). At trial, the 

prosecution placed into evidence the bags seized from

Wright and from the police cruiser. It also submitted 

three “certificates of analysis” showing the results of the 

forensic analysis performed on the seized substances. The 

certificates reported the weight of the seized bags and

stated that the bags “[h]a[ve] been examined with the 

following results: The substance was found to contain: 

Cocaine.” App. to Pet. for Cert. 24a, 26a, 28a. The certificates were sworn to before a notary public by analysts at 

the State Laboratory Institute of the Massachusetts Department of Public Health, as required under Massachusetts law. Mass. Gen. Laws, ch. 111, §13. 

Petitioner objected to the admission of the certificates,

asserting that our Confrontation Clause decision in Crawford v. Washington, 541 U. S. 36 (2004), required the

analysts to testify in person. The objection was overruled,

and the certificates were admitted pursuant to state law

as “prima facie evidence of the composition, quality, and

the net weight of the narcotic . . . analyzed.” Mass. Gen. 

Laws, ch. 111, §13. 

The jury found Melendez-Diaz guilty. He appealed, 
Cite as: 557 U. S. ____ (2009) 3 

Opinion of the Court 

contending, among other things, that admission of the 

certificates violated his Sixth Amendment right to be

confronted with the witnesses against him. The Appeals

Court of Massachusetts rejected the claim, affirmance

order, 69 Mass. App. 1114, 870 N. E. 2d 676, 2007 WL 

2189152, *4, n. 3 (July 31, 2007), relying on the Massachusetts Supreme Judicial Court’s decision in Commonwealth v. Verde, 444 Mass. 279, 283–285, 827 N. E. 2d 701, 

705–706 (2005), which held that the authors of certificates 

of forensic analysis are not subject to confrontation under 

the Sixth Amendment. The Supreme Judicial Court denied review. 449 Mass. 1113, 874 N. E. 2d 407 (2007). We 

granted certiorari. 552 U. S. ___ (2008). 

II 

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 (1965), 

provides that “[i]n all criminal prosecutions, the accused 

shall enjoy the right . . . to be confronted with the witnesses against him.” In Crawford, 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 crossexamination. 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 
4 MELENDEZ-DIAZ v. MASSACHUSETTS 

Opinion of the Court 

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 (internal quotation marks and citations omitted). 

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 MelendezDiaz 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 
Cite as: 557 U. S. ____ (2009) 5 

Opinion of the Court 

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. See App. to Pet. for Cert. 25a, 27a, 29a.

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 54.1 

III 

Respondent and the dissent advance a potpourri of 

—————— 

1Contrary to the dissent’s suggestion, post, at 3–4, 7 (opinion of KENNEDY, J.), we do not hold, and it is not the case, that anyone whose 

testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in

person as part of the prosecution’s case. While the dissent is correct 

that “[i]t is the obligation of the prosecution to establish the chain of 

custody,” post, at 7, this does not mean that everyone who laid hands on

the evidence must be called. As stated in the dissent’s own quotation, 

ibid., from United States v. Lott, 854 F. 2d 244, 250 (CA7 1988), “gaps

in the chain [of custody] normally go to the weight of the evidence 

rather than its admissibility.” It is up to the prosecution to decide what

steps in the chain of custody are so crucial as to require evidence; but

what testimony is introduced must (if the defendant objects) be introduced live. Additionally, documents prepared in the regular course of

equipment maintenance may well qualify as nontestimonial records.

See infra, at 15–16, 18. 
6 MELENDEZ-DIAZ v. MASSACHUSETTS 

Opinion of the Court 

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 30.2 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 

—————— 

2The exception is a single pre-Roberts case that relied on longstanding Massachusetts precedent. See Commonwealth v. Harvard, 356 

Mass. 452, 462, 253 N. E. 2d 346, 352 (1969). Others are simply irrelevant, since they involved medical reports created for treatment purposes, which would not be testimonial under our decision today. See, 

e.g., Baber v. State, 775 So. 2d 258, 258–259 (Fla. 2000); State v. Garlick, 313 Md. 209, 223–225, 545 A. 2d 27, 34–35 (1998). 
Cite as: 557 U. S. ____ (2009) 7 

Opinion of the Court 

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, No. 278, 1925 WL 2473 

(Ohio App., Nov. 2, 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. 

A 

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 
8 MELENDEZ-DIAZ v. MASSACHUSETTS 

Opinion of the Court 

defendant and those in his favor. The prosecution must 

produce the former;3 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. 

It is often, indeed perhaps usually, the case that an 

adverse witness’s testimony, taken alone, will not suffice

to convict. Yet respondent fails to cite a single case in

which such testimony was admitted absent a defendant’s 

opportunity to cross-examine.4 Unsurprisingly, since such

a holding would be contrary to longstanding case law. In 

Kirby v. United States, 174 U. S. 47 (1899), the Court 

considered Kirby’s conviction for receiving stolen property, 

the evidence for which consisted, in part, of the records of 

conviction of three individuals who were found guilty of 

stealing the relevant property. Id., at 53. Though this

evidence proved only that the property was stolen, and not 

that Kirby received it, the Court nevertheless ruled that

admission of the records violated Kirby’s rights under the 

Confrontation Clause. Id., at 55. See also King v. Turner, 

1 Mood. 347, 168 Eng. Rep. 1298 (1832) (confession by one 

defendant to having stolen certain goods could not be used 

—————— 

3The right to confrontation may, of course, be waived, including by

failure to object to the offending evidence; and States may adopt procedural rules governing the exercise of such objections. See infra, at 21. 4Respondent cites our decision in Gray v. Maryland, 523 U. S. 185 

(1998). That case did indeed distinguish between evidence that is 

“incriminating on its face” and evidence that “bec[omes] incriminating

. . . only when linked with evidence introduced later at trial, ” id., at 

191 (internal quotation marks omitted). But it did so for the entirely

different purpose of determining when a nontestifying codefendant’s

confession, redacted to remove all mention of the defendant, could be 

admitted into evidence with instruction for the jury not to consider the 

confession as evidence against the nonconfessor. The very premise of

the case was that, without the limiting instruction even admission of a

redacted confession containing evidence of the latter sort would have 

violated the defendant’s Sixth Amendment rights. See id., at 190–191. 
Cite as: 557 U. S. ____ (2009) 9 

Opinion of the Court 

as evidence against another defendant accused of receiving the stolen property). 

B 

Respondent and the dissent argue that the analysts 

should not be subject to confrontation because they are not 

“conventional” (or “typical” or “ordinary”) witnesses of the

sort whose ex parte testimony was most notoriously used 

at the trial of Sir Walter Raleigh. Post, at 15–16; Brief for 

Respondent 28. It is true, as the Court recognized in 

Crawford, that ex parte examinations of the sort used at 

Raleigh’s trial have “long been thought a paradigmatic 

confrontation violation.” 541 U. S., at 52. But the paradigmatic case identifies the core of the right to confrontation, not its limits. The right to confrontation was not

invented in response to the use of the ex parte examinations in Raleigh’s Case, 2 How. St. Tr. 1 (1603). That use 

provoked such an outcry precisely because it flouted the

deeply rooted common-law tradition “of live testimony in

court subject to adversarial testing.” Crawford, supra, at 

43 (citing 3 W. Blackstone, Commentaries on the Laws of

England 373–374 (1768)). See also Crawford, supra, at 

43–47. 

In any case, the purported distinctions respondent and

the dissent identify between this case and Sir Walter

Raleigh’s “conventional” accusers do not survive scrutiny.

The dissent first contends that a “conventional witness 

recalls events observed in the past, while an analyst’s

report contains near-contemporaneous observations of the

test.” Post, at 16–17. It is doubtful that the analyst’s 

reports in this case could be characterized as reporting 

“near-contemporaneous observations”; the affidavits were

completed almost a week after the tests were performed.

See App. to Pet. for Cert. 24a–29a (the tests were performed on November 28, 2001, and the affidavits sworn on 

December 4, 2001). But regardless, the dissent misunder-
10 MELENDEZ-DIAZ v. MASSACHUSETTS 

Opinion of the Court 

stands the role that “near-contemporaneity” has played in 

our case law. The dissent notes that that factor was given

“substantial weight” in Davis, post, at 17, but in fact that 

decision disproves the dissent’s position. There the Court 

considered the admissibility of statements made to police

officers responding to a report of a domestic disturbance. 

By the time officers arrived the assault had ended, but the

victim’s statements—written and oral—were sufficiently 

close in time to the alleged assault that the trial court 

admitted her affidavit as a “present sense impression.” 

Davis, 547 U. S., at 820 (internal quotation marks omitted). Though the witness’s statements in Davis were 

“near-contemporaneous” to the events she reported, we

nevertheless held that they could not be admitted absent 

an opportunity to confront the witness. Id., at 830. 

A second 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. Nor is it 

conceivable that all witnesses who fit this description

would be outside the scope of the Confrontation Clause.

For example, is a police officer’s investigative report describing the crime scene admissible absent an opportunity 

to examine the officer? The dissent’s novel exception from

coverage of the Confrontation Clause would exempt all

expert witnesses—a hardly “unconventional” class of

witnesses. 

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 
Cite as: 557 U. S. ____ (2009) 11 

Opinion of the Court 

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. In any

event, the analysts’ affidavits in this case were presented

in response to a police request. See Mass. Gen. Laws, ch. 

111, §§12–13. If an affidavit submitted in response to a

police officer’s request to “write down what happened” 

suffices to trigger the Sixth Amendment’s protection (as it

apparently does, see Davis, 547 U. S., at 819–820; id., at 

840, n. 5 (THOMAS, J., concurring in judgment in part and 

dissenting in part)), then the analysts’ testimony should 

be subject to confrontation as well. 

C 

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. What we said in Crawford in response to that argument remains true: 

“To be sure, the Clause’s ultimate goal is to ensure re-
12 MELENDEZ-DIAZ v. MASSACHUSETTS 

Opinion of the Court 

liability of evidence, but it is a procedural rather than 

a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a 

particular manner: by testing in the crucible of crossexamination. . . . Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment 

prescribes.” 541 U. S., at 61–62. 

Respondent and the dissent may be right that there are 

other ways—and in some cases better ways—to challenge

or verify the results of a forensic test.5 But the Constitution guarantees one way: confrontation. We do not have 

license to suspend the Confrontation Clause when a preferable trial strategy is available. 

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 

—————— 

5Though surely not always. Some forensic analyses, such as autopsies and breathalyzer tests, cannot be repeated, and the specimens used

for other analyses have often been lost or degraded. 
Cite as: 557 U. S. ____ (2009) 13 

Opinion of the Court 

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. While it is true, as the dissent notes, that an 

honest analyst will not alter his testimony when forced to

confront the defendant, post, at 10, the same cannot be 

said of the fraudulent analyst. See Brief for National 

Innocence Network as Amicus Curiae 15–17 (discussing 

cases of documented “drylabbing” where forensic analysts

report results of tests that were never performed); National Academy Report 1–8 to 1–10 (discussing documented cases of fraud and error involving the use of forensic evidence). Like the eyewitness who has fabricated his

account to the police, the analyst who provides false results may, under oath in open court, reconsider his false 

testimony. See Coy v. Iowa, 487 U. S. 1012, 1019 (1988). 

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 re-
14 MELENDEZ-DIAZ v. MASSACHUSETTS 

Opinion of the Court 

search 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).6 

Like expert witnesses generally, an analyst’s lack of

proper training or deficiency in judgment may be disclosed 

in cross-examination. 

This case is illustrative. The affidavits submitted by the

analysts contained only the bare-bones statement that 

“[t]he substance was found to contain: Cocaine.” App. to

Pet. for Cert. 24a, 26a, 28a. At the time of trial, petitioner

did not know what tests the analysts performed, whether 

those tests were routine, and whether interpreting their 

results required the exercise of judgment or the use of

skills that the analysts may not have possessed. While we 

still do not know the precise tests used by the analysts, we

are told that the laboratories use “methodology recommended by the Scientific Working Group for the Analysis

of Seized Drugs,” App. to Brief for Petitioner 1a–2a. At 

least some of that methodology requires the exercise of 

judgment and presents a risk of error that might be explored on cross-examination. See 2 P. Giannelli & E. 

Imwinkelried, Scientific Evidence §23.03[c], pp. 532–533, 

ch. 23A, p. 607 (4th ed. 2007) (identifying four “critical 

errors” that analysts may commit in interpreting the 

—————— 

6Contrary to the dissent’s suggestion, post, at 23, we do not “rel[y] in

such great measure” on the deficiencies of crime-lab analysts shown by

this report to resolve the constitutional question presented in this case.

The analysts who swore the affidavits provided testimony against 

Melendez-Diaz, and they are therefore subject to confrontation; we 

would reach the same conclusion if all analysts always possessed the

scientific acumen of Mme. Curie and the veracity of Mother Teresa.

We discuss the report only to refute the suggestion that this category of 

evidence is uniquely reliable and that cross-examination of the analysts

would be an empty formalism. 
Cite as: 557 U. S. ____ (2009) 15 

Opinion of the Court 

results of the commonly used gas chromatography/mass 

spectrometry analysis); Shellow, The Application of 

Daubert to the Identification of Drugs, 2 Shepard’s Expert

& Scientific Evidence Quarterly 593, 600 (1995) (noting 

that while spectrometers may be equipped with computerized matching systems, “forensic analysts in crime laboratories typically do not utilize this feature of the instrument, but rely exclusively on their subjective judgment”).

The same is true of many of the other types of forensic 

evidence commonly used in criminal prosecutions. 

“[T]here is wide variability across forensic science disciplines with regard to techniques, methodologies, reliability, types and numbers of potential errors, research, general acceptability, and published material.” National 

Academy Report S–5. See also id., at 5–9, 5–12, 5–17, 5– 

21 (discussing problems of subjectivity, bias, and unreliability of common forensic tests such as latent fingerprint 

analysis, pattern/impression analysis, and toolmark and 

firearms analysis). Contrary to respondent’s and the

dissent’s suggestion, there is little reason to believe that 

confrontation will be useless in testing analysts’ honesty, 

proficiency, and methodology—the features that are commonly the focus in the cross-examination of experts. 

D 

Respondent argues that the analysts’ affidavits are

admissible without confrontation because they are “akin to

the types of official and business records admissible at

common law.” Brief for Respondent 35. But the affidavits 

do not qualify as traditional official or business records,

and even if they did, their authors would be subject to

confrontation nonetheless. 

Documents kept in the regular course of business may 

ordinarily be admitted at trial despite their hearsay 

status. See Fed. Rule Evid. 803(6). But that is not the 

case if the regularly conducted business activity is the 
16 MELENDEZ-DIAZ v. MASSACHUSETTS 

Opinion of the Court 

production of evidence for use at trial. Our decision in 

Palmer v. Hoffman, 318 U. S. 109 (1943), made that distinction clear. There we held that an accident report 

provided by an employee of a railroad company did not

qualify as a business record because, although kept in the 

regular course of the railroad’s operations, it was “calculated for use essentially in the court, not in the business.” 

Id., at 114.7 The analysts’ certificates—like police reports

generated by law enforcement officials—do not qualify as

business or public records for precisely the same reason. 

See Rule 803(8) (defining public records as “excluding, 

however, in criminal cases matters observed by police

officers and other law enforcement personnel”). 

Respondent seeks to rebut this limitation by noting that

at common law the results of a coroner’s inquest were 

admissible without an opportunity for confrontation. But 

as we have previously noted, whatever the status of coroner’s reports at common law in England, they were not

accorded any special status in American practice. See 

Crawford, 541 U. S., at 47, n. 2; Giles v. California, 554 

U. S. ___, ___ (2008) (slip op., at 20) (BREYER, J., dissenting); Evidence—Official Records—Coroner’s Inquest, 65 U. 

Pa. L. Rev. 290 (1917). 

The dissent identifies a single class of evidence which, 

though prepared for use at trial, was traditionally admissible: a clerk’s certificate authenticating an official record—or a copy thereof—for use as evidence. See post, at 

19. But a clerk’s authority in that regard was narrowly 

circumscribed. He was permitted “to certify to the correctness of a copy of a record kept in his office,” but had 

—————— 

7The early common-law cases likewise involve records prepared for 

the administration of an entity’s affairs, and not for use in litigation. 

See, e.g., King v. Rhodes, 1 Leach 24, 168 Eng. Rep. 115 (1742) (admitting into evidence ship’s muster-book); King v. Martin, 2 Camp. 100, 

101, 170 Eng. Rep. 1094, 1095 (1809) (vestry book); King v. Aickles, 1 

Leach 390, 391–392, 168 Eng. Rep. 297, 298 (1785) (prison logbook). 
Cite as: 557 U. S. ____ (2009) 17 

Opinion of the Court 

“no authority to furnish, as evidence for the trial of a

lawsuit, his interpretation of what the record contains or

shows, or to certify to its substance or effect.” State v. 

Wilson, 141 La. 404, 409, 75 So. 95, 97 (1917). See also 

State v. Champion, 116 N. C. 987, 21 S. E. 700, 700–701 

(1895); 5 J. Wigmore, Evidence §1678 (3d ed. 1940). The 

dissent suggests that the fact that this exception was

“‘narrowly circumscribed’” makes no difference. See post,

at 20. To the contrary, it makes all the difference in the 

world. It shows that even the line of cases establishing 

the one narrow exception the dissent has been able to 

identify simultaneously vindicates the general rule applicable to the present case. A clerk could by affidavit authenticate or provide a copy of an otherwise admissible 

record, but could not do what the analysts did here: create 

a record for the sole purpose of providing evidence against 

a defendant.8 

Far more probative here are those cases in which the

prosecution sought to admit into evidence a clerk’s certificate attesting to the fact that the clerk had searched for a 

particular relevant record and failed to find it. Like the 

testimony of the analysts in this case, the clerk’s statement would serve as substantive evidence against the 

defendant whose guilt depended on the nonexistence of the

record for which the clerk searched. Although the clerk’s

certificate would qualify as an official record under respondent’s definition—it was prepared by a public officer 

in the regular course of his official duties—and although 

—————— 

8The dissent’s reliance on our decision in Dowdell v. United States, 

221 U. S. 325 (1911), see post, at 20 (opinion of KENNEDY, J.), is similarly misplaced. As the opinion stated in Dowdell—and as this Court 

noted in Davis v. Washington, 547 U. S. 813, 825 (2006)—the judge and

clerk who made the statements at issue in Dowdell were not witnesses 

for purposes of the Confrontation Clause because their statements 

concerned only the conduct of defendants’ prior trial, not any facts 

regarding defendants’ guilt or innocence. 221 U. S., at 330–331. 
18 MELENDEZ-DIAZ v. MASSACHUSETTS 

Opinion of the Court 

the clerk was certainly not a “conventional witness” under 

the dissent’s approach, the clerk was nonetheless subject 

to confrontation. See People v. Bromwich, 200 N. Y. 385, 

388–389, 93 N. E. 933, 934 (1911); People v. Goodrode, 132 

Mich. 542, 547, 94 N. W. 14, 16 (1903); Wigmore, supra, 

§1678.9 

Respondent also misunderstands the relationship between the business-and-official-records hearsay exceptions

and the Confrontation Clause. As we stated in Crawford: 

“Most of the hearsay exceptions covered statements that

by their nature were not testimonial—for example, business records or statements in furtherance of a conspiracy.”

541 U. S., at 56. 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. Whether or 

not they qualify as business or official records, the analysts’ statements here—prepared specifically for use at

petitioner’s trial—were testimony against petitioner, and 

the analysts were subject to confrontation under the Sixth 

Amendment. 

E 

Respondent asserts that we should find no Confronta-

—————— 

9An earlier line of 19th century state-court cases also supports the 

notion that forensic analysts’ certificates were not admitted into evidence as public or business records. See Commonwealth v. Waite, 93 

Mass. 264, 266 (1865); Shivers v. Newton, 45 N. J. L. 469, 476 (Sup. Ct. 

1883); State v. Campbell, 64 N. H. 402, 403, 13 A. 585, 586 (1888). In 

all three cases, defendants—who were prosecuted for selling adulterated milk—objected to the admission of the state chemists’ certificates

of analysis. In all three cases, the objection was defeated because the 

chemist testified live at trial. That the prosecution came forward with 

live witnesses in all three cases suggests doubt as to the admissibility

of the certificates without opportunity for cross-examination. 
Cite as: 557 U. S. ____ (2009) 19 

Opinion of the Court 

tion 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. 

F 

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. 

We also doubt the accuracy of respondent’s and the

dissent’s dire predictions. The dissent, respondent, and its 

amici highlight the substantial total number of controlledsubstance analyses performed by state and federal laboratories in recent years. But only some of those tests are 
20 MELENDEZ-DIAZ v. MASSACHUSETTS 

Opinion of the Court 

implicated in prosecutions, and only a small fraction of

those cases actually proceed to trial. See Brief for Law 

Professors as Amici Curiae 7–8 (nearly 95% of convictions

in state and federal courts are obtained via guilty plea).10 

Perhaps the best indication that the sky will not fall

after today’s decision is that it has not done so already.

Many States have already adopted the constitutional rule 

we announce today,11 while many others permit the defendant 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, id., at 13–15 

(cataloging such state laws). Despite these widespread 

practices, there is no evidence that the criminal justice

system has ground to a halt in the States that, one way or 

another, empower a defendant to insist upon the analyst’s

appearance at trial. Indeed, in Massachusetts itself, a 

defendant may subpoena the analyst to appear at trial, 

see Brief for Respondent 57, and yet there is no indication 

—————— 

10The dissent provides some back-of-the-envelope calculations regarding the number of court appearances that will result from today’s 

ruling. Post, at 13–14. Those numbers rely on various unfounded

assumptions: that the prosecution will place into evidence a drug

analysis certificate in every case; that the defendant will never stipulate to the nature of the controlled substance; that even where no such 

stipulation is made, every defendant will object to the evidence or

otherwise demand the appearance of the analyst. These assumptions 

are wildly unrealistic, and, as discussed below, the figures they produce 

do not reflect what has in fact occurred in those jurisdictions that have

already adopted the rule we announce today. 11 State v. Johnson, 982 So. 2d 672, 680–681 (Fla. 2008); HinojosMendoza v. People, 169 P. 3d 662, 666–667 (Colo. 2007); State v. 

Birchfield, 342 Ore. 624, 631–632, 157 P. 3d 216, 220 (2007); State v. 

March, 216 S. W. 3d 663, 666–667 (Mo. 2007); Thomas v. United States, 

914 A. 2d 1, 12–13 (D. C. 2006); State v. Caulfield, 722 N. W. 2d 304, 

310 (Minn. 2006); Las Vegas v. Walsh, 121 Nev. 899, 904–906, 124 P. 3d 

203, 207–208 (2005); People v. McClanahan, 191 Ill. 2d 127, 133–134, 

729 N. E. 2d 470, 474–475 (2000); Miller v. State, 266 Ga. 850, 854–855, 

472 S. E. 2d 74, 78–79 (1996); Barnette v. State, 481 So. 2d 788, 792 

(Miss. 1985). 
Cite as: 557 U. S. ____ (2009) 21 

Opinion of the Court 

that obstructionist defendants are abusing the privilege. 

The dissent finds this evidence “far less reassuring than

promised.” Post, at 28. But its doubts rest on two flawed 

premises. First, the dissent believes that those state 

statutes “requiring the defendant to give early notice of 

his intent to confront the analyst,” are “burden-shifting

statutes [that] may be invalidated by the Court’s reasoning.” Post, at 22, 28–29. That is not so. In their simplest

form, notice-and-demand statutes require the prosecution

to provide notice to the defendant of its intent to use an

analyst’s report as evidence at trial, after which the defendant is given a period of time in which he may object to 

the admission of the evidence absent the analyst’s appearance live at trial. See, e.g, Ga. Code Ann. §35–3–154.1

(2006); Tex. Code Crim. Proc. Ann., Art. 38.41, §4 (Vernon

2005); Ohio Rev. Code Ann. §2925.51(C) (West 2006).

Contrary to the dissent’s perception, these statutes shift

no burden whatever. The defendant always has the burden of raising his Confrontation Clause objection; noticeand-demand statutes simply govern the time within which 

he must do so. States are free to adopt procedural rules 

governing objections. See Wainwright v. Sykes, 433 U. S. 

72, 86–87 (1977). It is common to require a defendant to

exercise his rights under the Compulsory Process Clause 

in advance of trial, announcing his intent to present certain witnesses. See Fed. Rules Crim. Proc. 12.1(a), (e), 

16(b)(1)(C); Comment: Alibi Notice Rules: The Preclusion 

Sanction as Procedural Default, 51 U. Chi. L. Rev. 254, 

254–255, 281–285 (1984) (discussing and cataloguing 

State notice-of-alibi rules); Taylor v. Illinois, 484 U. S. 

400, 411 (1988); Williams v. Florida, 399 U. S. 78, 81–82 

(1970). There is no conceivable reason why he cannot 

similarly be compelled to exercise his Confrontation

Clause rights before trial. See Hinojos-Mendoza v. People, 

169 P. 3d 662, 670 (Colo. 2007) (discussing and approving

Colorado’s notice-and-demand provision). Today’s decision 
22 MELENDEZ-DIAZ v. MASSACHUSETTS 

Opinion of the Court 

will not disrupt criminal prosecutions in the many large 

States whose practice is already in accord with the Confrontation Clause.12 

Second, the dissent notes that several of the state-court 

cases that have already adopted this rule did so pursuant 

to our decision in Crawford, and not “independently . . . as 

a matter of state law.” Post, at 28. That may be so. But 

in assessing the likely practical effects of today’s ruling, it

is irrelevant why those courts adopted this rule; it matters 

only that they did so. It is true that many of these decisions are recent, but if the dissent’s dire predictions were

accurate, and given the large number of drug prosecutions 

at the state level, one would have expected immediate and 

dramatic results. The absence of such evidence is telling. 

But it is not surprising. Defense attorneys and their

clients will often stipulate to the nature of the substance 

in the ordinary drug case. It is unlikely that defense 

counsel will insist on live testimony whose effect will be

merely to highlight rather than cast doubt upon the forensic analysis. Nor will defense attorneys want to antagonize the judge or jury by wasting their time with the appearance of a witness whose testimony defense counsel

does not intend to rebut in any fashion.13 The amicus brief 

—————— 

12As the dissent notes, post, at 27, some state statutes, “requir[e] 

defense counsel to subpoena the analyst, to show good cause for demanding the analyst’s presence, or even to affirm under oath an intent 

to cross-examine the analyst.” We have no occasion today to pass on 

the constitutionality of every variety of statute commonly given the 

notice-and-demand label. It suffices to say that what we have referred 

to as the “simplest form [of] notice-and-demand statutes,” supra, at 21, 

is constitutional; that such provisions are in place in a number of 

States; and that in those States, and in other States that require 

confrontation without notice-and-demand, there is no indication that 

the dire consequences predicted by the dissent have materialized. 13Contrary to the dissent’s suggestion, post, at 24–25, we do not cast 

aspersions on trial judges, who we trust will not be antagonized by

good-faith requests for analysts’ appearance at trial. Nor do we expect 
Cite as: 557 U. S. ____ (2009) 23 

Opinion of the Court 

filed by District Attorneys in Support of the Commonwealth in the Massachusetts Supreme Court case upon 

which the Appeals Court here relied said that “it is almost

always the case that [analysts’ certificates] are admitted 

without objection. Generally, defendants do not object to

the admission of drug certificates most likely because 

there is no benefit to a defendant from such testimony.” 

Brief for District Attorneys in Support of the Commonwealth in No. SJC–09320 (Mass.), p. 7 (footnote omitted).

Given these strategic considerations, and in light of the 

experience in those States that already provide the same

or similar protections to defendants, there is little reason

to believe that our decision today will commence the parade of horribles respondent and the dissent predict. 

* * * 

This case involves little more than the application of our 

holding in Crawford v. Washington, 541 U. S. 36. 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.14 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. 

—————— 

defense attorneys to refrain from zealous representation of their clients. 

We simply do not expect defense attorneys to believe that their clients’

interests (or their own) are furthered by objections to analysts’ reports 

whose conclusions counsel have no intention of challenging. 14We of course express no view as to whether the error was harmless.

The Massachusetts Court of Appeals did not reach that question and 

we decline to address it in the first instance. Cf. Coy v. Iowa, 487 U. S. 

1012, 1021–1022 (1988). In connection with that determination, 

however, we disagree with the dissent’s contention, post, at 25, that 

“only an analyst’s testimony suffices to prove [the] fact” that “the 

substance is cocaine.” Today’s opinion, while insisting upon retention 

of the confrontation requirement, in no way alters the type of evidence

(including circumstantial evidence) sufficient to sustain a conviction. 
_________________ 

_________________ 

Cite as: 557 U. S. ____ (2009) 1 

THOMAS, J., concurring 

SUPREME COURT OF THE UNITED STATES 

No. 07–591 

LUIS E. MELENDEZ-DIAZ, PETITIONER v.

MASSACHUSETTS 

ON WRIT OF CERTIORARI TO THE APPEALS COURT OF

MASSACHUSETTS

[June 25, 2009] 

JUSTICE THOMAS, concurring. 

I write separately to note that I continue to adhere to

my position that “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.” White v. 

Illinois, 502 U. S. 346, 365 (1992) (opinion concurring in 

part and concurring in judgment); see also Giles v. California, 554 U. S. ___, ___ (2008) (slip op., at 1) (concurring 

opinion) (characterizing statements within the scope of the 

Confrontation Clause to include those that are “sufficiently formal to resemble the Marian examinations” 

because they were Mirandized or custodial or “accompanied by [a] similar indicia of formality” (internal quotation 

marks omitted)); Davis v. Washington, 547 U. S. 813, 836 

(2006) (opinion concurring in judgment in part and dissenting in part) (reiterating that the Clause encompasses

extrajudicial statements contained in the types of formalized materials listed in White, supra, at 365. I join the 

Court’s opinion in this case because the documents at 

issue in this case “are quite plainly affidavits,” ante, at 4. 

As such, they “fall within the core class of testimonial 

statements” governed by the Confrontation Clause. Ibid.

(internal quotation marks omitted). 
_________________ 

_________________ 

Cite as: 557 U. S. ____ (2009) 1 

KENNEDY, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 07–591 

LUIS E. MELENDEZ-DIAZ, PETITIONER v.

MASSACHUSETTS 

ON WRIT OF CERTIORARI TO THE APPEALS COURT OF

MASSACHUSETTS

[June 25, 2009] 

JUSTICE KENNEDY, with whom THE CHIEF JUSTICE, 

JUSTICE BREYER, and JUSTICE ALITO join, dissenting. 

The Court sweeps away an accepted rule governing the 

admission of scientific evidence. Until today, scientific 

analysis could be introduced into evidence without testimony from the “analyst” who produced it. This rule has 

been established for at least 90 years. It extends across at 

least 35 States and six Federal Courts of Appeals. Yet the 

Court undoes it based on two recent opinions that say 

nothing about forensic analysts: Crawford v. Washington, 

541 U. S. 36 (2004), and Davis v. Washington, 547 U. S. 

813 (2006). 

It is remarkable that the Court so confidently disregards 

a century of jurisprudence. We learn now that we have 

misinterpreted the Confrontation Clause—hardly an 

arcane or seldom-used provision of the Constitution—for 

the first 218 years of its existence. The immediate systemic concern is that the Court makes no attempt to acknowledge the real differences between laboratory analysts who perform scientific tests and other, more 

conventional witnesses—“witnesses” being the word the 
2 MELENDEZ-DIAZ v. MASSACHUSETTS 

KENNEDY, J., dissenting 

Framers used in the Confrontation Clause. 

Crawford and Davis dealt with ordinary witnesses—

women who had seen, and in two cases been the victim of, 

the crime in question. Those cases stand for the proposition that formal statements made by a conventional witness—one who has personal knowledge of some aspect of 

the defendant’s guilt—may not be admitted without the 

witness appearing at trial to meet the accused face to face.

But Crawford and Davis do not say—indeed, could not 

have said, because the facts were not before the Court— 

that anyone who makes a testimonial statement is a witness for purposes of the Confrontation Clause, even when 

that person has, in fact, witnessed nothing to give them 

personal knowledge of the defendant’s guilt. 

Because Crawford and Davis concerned typical witnesses, the Court should have done the sensible thing and 

limited its holding to witnesses as so defined. Indeed, as 

JUSTICE THOMAS warned in his opinion in Davis, the 

Court’s approach has become “disconnected from history

and unnecessary to prevent abuse.” 547 U. S., at 838. 

The Court’s reliance on the word “testimonial” is of little 

help, of course, for that word does not appear in the text of

the Clause. 

The Court dictates to the States, as a matter of constitutional law, an as-yet-undefined set of rules governing what

kinds of evidence may be admitted without in-court testimony. Indeed, under today’s opinion the States bear an 

even more onerous burden than they did before Crawford. 

Then, the States at least had the guidance of the hearsay 

rule and could rest assured that “where the evidence f[ell] 

within a firmly rooted hearsay exception,” the Confrontation Clause did not bar its admission. Ohio v. Roberts, 448 

U. S. 56, 66 (1980) (overruled by Crawford). Now, without 

guidance from any established body of law, the States can

only guess what future rules this Court will distill from 

the sparse constitutional text. See, e.g., Méndez, Craw-
Cite as: 557 U. S. ____ (2009) 3 

KENNEDY, J., dissenting 

ford v. Washington: A Critique, 57 Stan. L. Rev. 569, 586–

593 (2004) (discussing unanswered questions regarding 

testimonial statements). 

The Court’s opinion suggests this will be a body of formalistic and wooden rules, divorced from precedent, common sense, and the underlying purpose of the Clause. Its 

ruling has vast potential to disrupt criminal procedures

that already give ample protections against the misuse of

scientific evidence. For these reasons, as more fully explained below, the Court’s opinion elicits my respectful

dissent. 

I 

A 

1 

The Court says that, before the results of a scientific

test may be introduced into evidence, the defendant has

the right to confront the “analyst.” Ante, at 4–5. One 

must assume that this term, though it appears nowhere in

the Confrontation Clause, nevertheless has some constitutional substance that now must be elaborated in future 

cases. There is no accepted definition of analyst, and 

there is no established precedent to define that term. 

Consider how many people play a role in a routine test 

for the presence of illegal drugs. One person prepares a 

sample of the drug, places it in a testing machine, and 

retrieves the machine’s printout—often, a graph showing 

the frequencies of radiation absorbed by the sample or the 

masses of the sample’s molecular fragments. See 2 P. 

Giannelli & E. Imwinkelried, Scientific Evidence §23.03 

(4th ed. 2007) (describing common methods of identifying

drugs, including infrared spectrophotometry, nuclear 

magnetic resonance, gas chromatography, and mass spectrometry). A second person interprets the graph the machine prints out—perhaps by comparing that printout

with published, standardized graphs of known drugs. 
4 MELENDEZ-DIAZ v. MASSACHUSETTS 

KENNEDY, J., dissenting 

Ibid. Meanwhile, a third person—perhaps an independent 

contractor—has calibrated the machine and, having done 

so, has certified that the machine is in good working order.

Finally, a fourth person—perhaps the laboratory’s director—certifies that his subordinates followed established 

procedures.

It is not at all evident which of these four persons is the

analyst to be confronted under the rule the Court announces today. If all are witnesses who must appear for 

in-court confrontation, then the Court has, for all practical

purposes, forbidden the use of scientific tests in criminal

trials. As discussed further below, requiring even one of 

these individuals to testify threatens to disrupt if not end

many prosecutions where guilt is clear but a newly found 

formalism now holds sway. See Part I–C, infra. 

It is possible to read the Court’s opinion, however, to say

that all four must testify. Each one has contributed to the 

test’s result and has, at least in some respects, made a

representation about the test. Person One represents that 

a pure sample, properly drawn, entered the machine and 

produced a particular printout. Person Two represents

that the printout corresponds to a known drug. Person 

Three represents that the machine was properly calibrated at the time. Person Four represents that all the 

others performed their jobs in accord with established

procedures.

And each of the four has power to introduce error. A 

laboratory technician might adulterate the sample. The 

independent contractor might botch the machine’s calibration. And so forth. The reasons for these errors may

range from animus against the particular suspect or all 

criminal suspects to unintentional oversight; from gross

negligence to good-faith mistake. It is no surprise that a 

plausible case can be made for deeming each person in the 

testing process an analyst under the Court’s opinion.

Consider the independent contractor who has calibrated 
Cite as: 557 U. S. ____ (2009) 5 

KENNEDY, J., dissenting 

the testing machine. At least in a routine case, where the 

machine’s result appears unmistakable, that result’s

accuracy depends entirely on the machine’s calibration. 

The calibration, in turn, can be proved only by the contractor’s certification that he or she did the job properly. That 

certification appears to be a testimonial statement under

the Court’s definition: It is a formal, out-of-court statement, offered for the truth of the matter asserted, and 

made for the purpose of later prosecution. See ante, at 3– 

5. It is not clear, under the Court’s ruling, why the independent contractor is not also an analyst. 

Consider the person who interprets the machine’s printout. His or her interpretation may call for the exercise of

professional judgment in close cases. See Giannelli & 

Imwinkelried, supra. If we assume no person deliberately 

introduces error, this interpretive step is the one most

likely to permit human error to affect the test’s result. 

This exercise of judgment might make this participant an

analyst. The Court implies as much. See ante, at 12–14. 

And we must yet consider the laboratory director who

certifies the ultimate results. The director is arguably the

most effective person to confront for revealing any ambiguity in findings, variations in procedures, or problems in

the office, as he or she is most familiar with the standard 

procedures, the office’s variations, and problems in prior 

cases or with particular analysts. The prosecution may

seek to introduce his or her certification into evidence. 

The Court implies that only those statements that are

actually entered into evidence require confrontation. See 

ante, at 4–5. This could mean that the director is also an 

analyst, even if his or her certification relies upon or restates work performed by subordinates.

The Court offers no principles or historical precedent to

determine which of these persons is the analyst. All contribute to the test result. And each is equally remote from

the scene, has no personal stake in the outcome, does not 
6 MELENDEZ-DIAZ v. MASSACHUSETTS 

KENNEDY, J., dissenting 

even know the accused, and is concerned only with the

performance of his or her role in conducting the test. 

It could be argued that the only analyst who must testify is the person who signed the certificate. Under this 

view, a laboratory could have one employee sign certificates and appear in court, which would spare all the other 

analysts this burden. But the Court has already rejected 

this arrangement. The Court made clear in Davis that it 

will not permit the testimonial statement of one witness to 

enter into evidence through the in-court testimony of a

second: 

“[W]e do not think it conceivable that the protections

of the Confrontation Clause can readily be evaded by 

having a note-taking policeman [here, the laboratory 

employee who signs the certificate] recite the unsworn 

hearsay testimony of the declarant [here, the analyst 

who performs the actual test], instead of having the 

declarant sign a deposition. Indeed, if there is one 

point for which no case—English or early American,

state or federal—can be cited, that is it.” 547 U. S., at 

826. 

Under this logic, the Court’s holding cannot be cabined to

the person who signs the certificates. If the signatory is

restating the testimonial statements of the true analysts—

whoever they might be—then those analysts, too, must

testify in person.

Today’s decision demonstrates that even in the narrow 

category of scientific tests that identify a drug, the Court 

cannot define with any clarity who the analyst is. Outside 

this narrow category, the range of other scientific tests 

that may be affected by the Court’s new confrontation

right is staggering. See, e.g., Comment, Toward a Definition of “Testimonial”: How Autopsy Reports Do Not Embody the Qualities of a Testimonial Statement, 96 Cal. L.

Rev. 1093, 1094, 1115 (2008) (noting that every court post­
Cite as: 557 U. S. ____ (2009) 7 

KENNEDY, J., dissenting 

Crawford has held that autopsy reports are not testimonial, and warning that a contrary rule would “effectively 

functio[n] as a statute of limitations for murder”). 

2 

It is difficult to confine at this point the damage the

Court’s holding will do in other contexts. Consider just

two—establishing the chain of custody and authenticating 

a copy of a document.

It is the obligation of the prosecution to establish the

chain of custody for evidence sent to testing laboratories—

that is, to establish “the identity and integrity of physical 

evidence by tracing its continuous whereabouts.” 23 

C. J. S., Criminal Law §1142, p. 66 (2008). Meeting this

obligation requires representations—that one officer retrieved the evidence from the crime scene, that a second 

officer checked it into an evidence locker, that a third 

officer verified the locker’s seal was intact, and so forth. 

The iron logic of which the Court is so enamored would 

seem to require in-court testimony from each human link 

in the chain of custody. That, of course, has never been 

the law. See, e.g., United States v. Lott, 854 F. 2d 244, 250 

(CA7 1988) (“[G]aps in the chain [of custody] normally go

to the weight of the evidence rather than its admissibility”); 29A Am. Jur. 2d, Evidence §962, p. 269 (2009) (“The 

fact that one of the persons in control of a fungible substance does not testify at trial does not, without more, 

make the substance or testimony relating to it inadmissible”); C. J. S., supra, §1142, at 67 (“It is generally not 

necessary that every witness who handled the evidence

testify”).

It is no answer for the Court to say that “[i]t is up to the 

prosecution to decide what steps in the chain of custody 

are so crucial as to require evidence.” Ante, at 5, n. 1. The 

case itself determines which links in the chain are crucial—not the prosecution. In any number of cases, the 
8 MELENDEZ-DIAZ v. MASSACHUSETTS 

KENNEDY, J., dissenting 

crucial link in the chain will not be available to testify 

and so the evidence will be excluded for lack of a proper

foundation. 

Consider another context in which the Court’s holding

may cause disruption: The long-accepted practice of authenticating copies of documents by means of a certificate 

from the document’s custodian stating that the copy is 

accurate. See, e.g., Fed. Rule Evid. 902(4) (in order to be

self-authenticating, a copy of a public record must be 

“certified as correct by the custodian”); Rule 902(11) (business record must be “accompanied by a written declaration

of its custodian”). Under one possible reading of the

Court’s opinion, recordkeepers will be required to testify. 

So far, courts have not read Crawford and Davis to impose

this largely meaningless requirement. See, e.g., United 

States v. Adefehinti, 510 F. 3d 319, 327–328 (CADC 2008) 

(certificates authenticating bank records may be admitted 

without confrontation); United States v. Ellis, 460 F. 3d 

920, 927 (CA7 2006) (certificate authenticating hospital

records). But the breadth of the Court’s ruling today, and 

its undefined scope, may well be such that these courts

now must be deemed to have erred. The risk of that consequence ought to tell us that something is very wrong

with the Court’s analysis. 

Because the Court is driven by nothing more than a

wooden application of the Crawford and Davis definition 

of “testimonial,” divorced from any guidance from history,

precedent, or common sense, there is no way to predict the 

future applications of today’s holding. Surely part of the 

justification for the Court’s formalism must lie in its predictability. There is nothing predictable here, however, 

other than the uncertainty and disruption that now must 

ensue. 

B 

With no precedent to guide us, let us assume that the 
Cite as: 557 U. S. ____ (2009) 9 

KENNEDY, J., dissenting 

Court’s analyst is the person who interprets the machine’s 

printout. This result makes no sense. The Confrontation 

Clause is not designed, and does not serve, to detect errors

in scientific tests. That should instead be done by conducting a new test. Or, if a new test is impossible, the 

defendant may call his own expert to explain to the jury 

the test’s flaws and the dangers of relying on it. And if, in 

an extraordinary case, the particular analyst’s testimony 

is necessary to the defense, then, of course, the defendant 

may subpoena the analyst. The Court frets that the defendant may be unable to do so “when the [analyst] is

unavailable or simply refuses to appear.” Ante, at 19. But 

laboratory analysts are not difficult to locate or to compel.

As discussed below, analysts already devote considerable 

time to appearing in court when subpoenaed to do so. See 

Part I–C, infra; see also Brief for State of Alabama et al. 

as Amici Curiae 26–28. Neither the Court, petitioner, nor 

amici offer any reason to believe that defendants have

trouble subpoenaing analysts in cases where the analysts’

in-court testimony is necessary.

The facts of this case illustrate the formalistic and 

pointless nature of the Court’s reading of the Clause.

Petitioner knew, well in advance of trial, that the Commonwealth would introduce the tests against him. The 

bags of cocaine were in court, available for him to test, and

entered into evidence. Yet petitioner made no effort, 

before or during trial, to mount a defense against the 

analysts’ results. Petitioner could have challenged the

tests’ reliability by seeking discovery concerning the testing methods used or the qualifications of the laboratory 

analysts. See Mass. Rule Crim. Proc. 14(a)(2) (2009). He 

did not do so. Petitioner could have sought to conduct his 

own test. See Rule 41. Again, he did not seek a test;

indeed, he did not argue that the drug was not cocaine. 

Rather than dispute the authenticity of the samples tested 

or the accuracy of the tests performed, petitioner argued to 
10 MELENDEZ-DIAZ v. MASSACHUSETTS 

KENNEDY, J., dissenting 

the jury that the prosecution had not shown that he had 

possessed or dealt in the drugs.

Despite not having prepared a defense to the analysts’ 

results, petitioner’s counsel made what can only be described as a pro forma objection to admitting the results

without in-court testimony, presumably from one particular analyst. Today the Court, by deciding that this objection should have been sustained, transforms the Confrontation Clause from a sensible procedural protection into a

distortion of the criminal justice system.

It is difficult to perceive how the Court’s holding will

advance the purposes of the Confrontation Clause. One 

purpose of confrontation is to impress upon witnesses the

gravity of their conduct. See Coy v. Iowa, 487 U. S. 1012, 

1019–1020 (1988). A witness, when brought to face the

person his or her words condemn, might refine, reformulate, reconsider, or even recant earlier statements. See 

ibid. A further purpose is to alleviate the danger of onesided interrogations by adversarial government officials

who might distort a witness’s testimony. The Clause 

guards against this danger by bringing the interrogation

into the more neutral and public forum of the courtroom.

See Maryland v. Craig, 497 U. S. 836, 869–870 (1990) 

(SCALIA, J., dissenting) (discussing the “value of the confrontation right in guarding against a child’s distorted or 

coerced recollections”); see also 96 Cal. L. Rev., supra, at 

1120–1122 (“During private law-enforcement questioning,

police officers or prosecutors can exert pressure on the 

witness without a high risk of being discovered. Courtroom questioning, in contrast, is public and performed in

front of the jury, judge and defendant. Pressure is therefore harder to exert in court”).

But neither purpose is served by the rule the Court

announces today. It is not plausible that a laboratory

analyst will retract his or her prior conclusion upon catching sight of the defendant the result condemns. After all, 
Cite as: 557 U. S. ____ (2009) 11 

KENNEDY, J., dissenting 

the analyst is far removed from the particular defendant 

and, indeed, claims no personal knowledge of the defendant’s guilt. And an analyst performs hundreds if not

thousands of tests each year and will not remember a 

particular test or the link it had to the defendant. 

This is not to say that analysts are infallible. They are 

not. It may well be that if the State does not introduce the

machine printout or the raw results of a laboratory analysis; if it does not call an expert to interpret a test, particularly if that test is complex or little known; if it does not 

establish the chain of custody and the reliability of the 

laboratory; then the State will have failed to meet its

burden of proof. That result follows because the State 

must prove its case beyond a reasonable doubt, without 

relying on presumptions, unreliable hearsay, and the like.

See United States v. United States Gypsum Co., 438 U. S. 

422, 446 (1978) (refusing to permit a “‘conclusive presumption [of intent],’” which “‘would effectively eliminate

intent as an ingredient of the offense’” (quoting Morissette 

v. United States, 342 U. S. 246, 274–275 (1952)). The 

State must permit the defendant to challenge the analyst’s 

result. See Holmes v. South Carolina, 547 U. S. 319, 331 

(2006) (affirming the defendant’s right to “have a meaningful opportunity to present a complete defense” (internal

quotation marks omitted)). The rules of evidence, including those governing reliability under hearsay principles 

and the latitude to be given expert witnesses; the rules 

against irrebutable presumptions; and the overriding

principle that the prosecution must make its case beyond

a reasonable doubt—all these are part of the protections

for the accused. The States, however, have some latitude 

in determining how these rules should be defined. 

The Confrontation Clause addresses who must testify.

It simply does not follow, however, that this clause, in lieu 

of the other rules set forth above, controls who the prosecution must call on every issue. Suppose, for instance, 
12 MELENDEZ-DIAZ v. MASSACHUSETTS 

KENNEDY, J., dissenting 

that the defense challenges the procedures for a secure 

chain of custody for evidence sent to a lab and then returned to the police. The defense has the right to call its 

own witnesses to show that the chain of custody is not 

secure. But that does not mean it can demand that, in the 

prosecution’s case in chief, each person who is in the chain

of custody—and who had an undoubted opportunity to 

taint or tamper with the evidence—must be called by the 

prosecution under the Confrontation Clause. And the 

same is true with lab technicians. 

The Confrontation Clause is simply not needed for these 

matters. Where, as here, the defendant does not even 

dispute the accuracy of the analyst’s work, confrontation

adds nothing. 

C 

For the sake of these negligible benefits, the Court 

threatens to disrupt forensic investigations across the 

country and to put prosecutions nationwide at risk of 

dismissal based on erratic, all-too-frequent instances when 

a particular laboratory technician, now invested by the 

Court’s new constitutional designation as the analyst,

simply does not or cannot appear. 

Consider first the costs today’s decision imposes on

criminal trials. Our own Court enjoys weeks, often

months, of notice before cases are argued. We receive 

briefs well in advance. The argument itself is ordered. A 

busy trial court, by contrast, must consider not only attorneys’ schedules but also those of witnesses and juries.

Trial courts have huge caseloads to be processed within

strict time limits. Some cases may unexpectedly plead out 

at the last minute; others, just as unexpectedly, may not.

Some juries stay out longer than predicted; others must be

reconstituted. An analyst cannot hope to be the trial

court’s top priority in scheduling. The analyst must instead face the prospect of waiting for days in a hallway 
Cite as: 557 U. S. ____ (2009) 13 

KENNEDY, J., dissenting 

outside the courtroom before being called to offer testimony that will consist of little more than a rote recital of 

the written report. See Part I–B, supra. 

As matters stood before today’s opinion, analysts already spent considerable time appearing as witnesses in

those few cases where the defendant, unlike petitioner in

this case, contested the analyst’s result and subpoenaed 

the analyst. See Brief for Alabama et al. as Amici Curiae 

26–28 (testifying takes time); ante, at 23 (before today’s

opinion, it was “‘almost always the case that analysts’ 

certificates [we]re admitted without objection’” in Massachusetts courts). By requiring analysts also to appear in

the far greater number of cases where defendants do not

dispute the analyst’s result, the Court imposes enormous 

costs on the administration of justice. 

Setting aside, for a moment, all the other crimes for

which scientific evidence is required, consider the costs the 

Court’s ruling will impose on state drug prosecutions

alone. In 2004, the most recent year for which data are

available, drug possession and trafficking resulted in 

362,850 felony convictions in state courts across the country. See Dept. of Justice, Bureau of Justice Statistics, M. 

Durose & P. Langan, Felony Sentences in State Courts 

2004, p. 2 (July 2007). Roughly 95% of those convictions 

were products of plea bargains, see id., at 1, which means 

that state courts saw more than 18,000 drug trials in a

single year.

The analysts responsible for testing the drugs at issue

in those cases now bear a crushing burden. For example,

the district attorney in Philadelphia prosecuted 25,000

drug crimes in 2007. Brief for National Dist. Attorneys 

Association et al. as Amici Curiae 12–13. Assuming that 

number remains the same, and assuming that 95% of the

cases end in a plea bargain, each of the city’s 18 drug 

analysts, ibid., will be required to testify in more than 69 

trials next year. Cleveland’s district attorney prosecuted 
14 MELENDEZ-DIAZ v. MASSACHUSETTS 

KENNEDY, J., dissenting 

14,000 drug crimes in 2007. Ibid. Assuming that number

holds, and that 95% of the cases end in a plea bargain,

each of the city’s 6 drug analysts (two of whom work only 

part time) must testify in 117 drug cases next year. Id., at 

13. 

The Federal Government may face even graver difficulties than the States because its operations are so widespread. For example, the FBI laboratory at Quantico, 

Virginia, supports federal, state, and local investigations 

across the country. Its 500 employees conduct over one 

million scientific tests each year. Dept. of Justice, FBI

Laboratory 2007, Message from the FBI Laboratory Director, http://www.fbi.gov/hq/lab/lab2007/labannual07.pdf (as 

visited June 22, 2009, and available in Clerk of Court’s 

case file). The Court’s decision means that before any of 

those million tests reaches a jury, at least one of the laboratory’s analysts must board a plane, find his or her way 

to an unfamiliar courthouse, and sit there waiting to read 

aloud notes made months ago. 

The Court purchases its meddling with the Confrontation Clause at a dear price, a price not measured in taxpayer dollars alone. Guilty defendants will go free, on the 

most technical grounds, as a direct result of today’s decision, adding nothing to the truth-finding process. The 

analyst will not always make it to the courthouse in time.

He or she may be ill; may be out of the country; may be 

unable to travel because of inclement weather; or may at

that very moment be waiting outside some other courtroom for another defendant to exercise the right the Court

invents today. If for any reason the analyst cannot make

it to the courthouse in time, then, the Court holds, the jury

cannot learn of the analyst’s findings (unless, by some

unlikely turn of events, the defendant previously crossexamined the analyst). Ante, at 3. The result, in many

cases, will be that the prosecution cannot meet its burden 

of proof, and the guilty defendant goes free on a technical­
Cite as: 557 U. S. ____ (2009) 15 

KENNEDY, J., dissenting 

ity that, because it results in an acquittal, cannot be reviewed on appeal.

The Court’s holding is a windfall to defendants, one that 

is unjustified by any demonstrated deficiency in trials, any 

well-understood historical requirement, or any established 

constitutional precedent. 

II 

All of the problems with today’s decision—the imprecise

definition of “analyst,” the lack of any perceptible benefit, 

the heavy societal costs—would be of no moment if the 

Constitution did, in fact, require the Court to rule as it 

does today. But the Constitution does not. 

The Court’s fundamental mistake is to read the Confrontation Clause as referring to a kind of out-of-court

statement—namely, a testimonial statement—that must 

be excluded from evidence. The Clause does not refer to 

kinds of statements. Nor does the Clause contain the 

word “testimonial.” The text, instead, refers to kinds of 

persons, namely, to “witnesses against” the defendant.

Laboratory analysts are not “witnesses against” the defendant as those words would have been understood at the 

framing. There is simply no authority for this proposition. 

Instead, the Clause refers to a conventional “witness”— 

meaning one who witnesses (that is, perceives) an event 

that gives him or her personal knowledge of some aspect of

the defendant’s guilt. Both Crawford and Davis concerned 

just this kind of ordinary witness—and nothing in the 

Confrontation Clause’s text, history, or precedent justifies 

the Court’s decision to expand those cases. 

A 

The Clause states: “In all criminal prosecutions, the

accused shall enjoy the right . . . to be confronted with the

witnesses against him.” U. S. Const., Amdt. 6. Though

there is “virtually no evidence of what the drafters of the 

Confrontation Clause intended it to mean,” White v. Illi-
16 MELENDEZ-DIAZ v. MASSACHUSETTS 

KENNEDY, J., dissenting 

nois, 502 U. S. 346, 359 (1992) (THOMAS, J., concurring in 

part and concurring in judgment), it is certain the Framers did not contemplate that an analyst who conducts a

scientific test far removed from the crime would be considered a “witnes[s] against” the defendant. 

The Framers were concerned with a typical witness—

one who perceived an event that gave rise to a personal 

belief in some aspect of the defendant’s guilt. There is no 

evidence that the Framers understood the Clause to extend to unconventional witnesses. As discussed below, 

there is significant evidence to the contrary. See Part II– 

B, infra. In these circumstances, the historical evidence in 

support of the Court’s position is “‘too meager . . . to form 

a solid basis in history, preceding and contemporaneous 

with the framing of the Constitution.’” Boumediene v. 

Bush, 553 U. S. ___, ___ (2008) (slip op., at 22) (quoting 

Reid v. Covert, 354 U. S. 1, 64 (1957) (Frankfurter, J.,

concurring in result)). The Court goes dangerously wrong 

when it bases its constitutional interpretation upon historical guesswork.

The infamous treason trial of Sir Walter Raleigh provides excellent examples of the kinds of witnesses to whom

the Confrontation Clause refers. Raleigh’s Case, 2 How. 

St. Tr. 1 (1603); see Crawford, 541 U. S., at 44–45 (Raleigh’s trial informs our understanding of the Clause 

because it was, at the time of the framing, one of the “most 

notorious instances” of the abuse of witnesses’ out-of-court 

statements); ante, at 9 (same). Raleigh’s accusers claimed

to have heard Raleigh speak treason, so they were witnesses in the conventional sense. We should limit the 

Confrontation Clause to witnesses like those in Raleigh’s

trial. 

The Court today expands the Clause to include laboratory analysts, but analysts differ from ordinary witnesses 

in at least three significant ways. First, a conventional 

witness recalls events observed in the past, while an 
Cite as: 557 U. S. ____ (2009) 17 

KENNEDY, J., dissenting 

analyst’s report contains near-contemporaneous observations of the test. An observation recorded at the time it is 

made is unlike the usual act of testifying. A typical witness must recall a previous event that he or she perceived 

just once, and thus may have misperceived or misremembered. But an analyst making a contemporaneous observation need not rely on memory; he or she instead reports 

the observations at the time they are made. We gave this

consideration substantial weight in Davis. There, the 

“primary purpose” of the victim’s 911 call was “to enable

police assistance to meet an ongoing emergency,” rather 

than “to establish or prove past events potentially relevant

to later criminal prosecution.” 547 U. S., at 822, 827. See 

also People v. Geier, 41 Cal. 4th 555, 605–609, 161 P. 3d 

104, 139–141 (2007). The Court cites no authority for its

holding that an observation recorded at the time it is

made is an act of “witness[ing]” for purposes of the Confrontation Clause. 

Second, an analyst observes neither the crime nor any 

human action related to it. Often, the analyst does not 

know the defendant’s identity, much less have personal 

knowledge of an aspect of the defendant’s guilt. The analyst’s distance from the crime and the defendant, in both

space and time, suggests the analyst is not a witness 

against the defendant in the conventional sense. 

Third, a conventional witness responds to questions

under interrogation. See, e.g., Raleigh’s Case, supra, at 

15–20. But laboratory tests are conducted according to 

scientific protocols; they are not dependent upon or controlled by interrogation of any sort. Put differently, out-ofcourt statements should only “require confrontation if they

are produced by, or with the involvement of, adversarial 

government officials responsible for investigating and 

prosecuting crime.” 96 Cal. L. Rev., at 1118. There is no 

indication that the analysts here—who work for the State 

Laboratory Institute, a division of the Massachusetts 
18 MELENDEZ-DIAZ v. MASSACHUSETTS 

KENNEDY, J., dissenting 

Department of Public Health—were adversarial to petitioner. Nor is there any evidence that adversarial officials 

played a role in formulating the analysts’ certificates.

Rather than acknowledge that it expands the Confrontation Clause beyond conventional witnesses, the Court 

relies on our recent opinions in Crawford and Davis. Ante, 

at 3–5. The Court assumes, with little analysis, that 

Crawford and Davis extended the Clause to any person

who makes a “testimonial” statement. But the Court’s 

confident tone cannot disguise the thinness of these two 

reeds. Neither Crawford nor Davis considered whether 

the Clause extends to persons far removed from the crime

who have no connection to the defendant. Instead, those 

cases concerned conventional witnesses. Davis, supra, at 

826–830 (witnesses were victims of defendants’ assaults); 

Crawford, supra, at 38 (witness saw defendant stab

victim).

It is true that Crawford and Davis employed the term 

“testimonial,” and thereby suggested that any testimonial

statement, by any person, no matter how distant from the 

defendant and the crime, is subject to the Confrontation

Clause. But that suggestion was not part of the holding of 

Crawford or Davis. Those opinions used the adjective 

“testimonial” to avoid the awkward phrasing required by

reusing the noun “witness.” The Court today transforms

that turn of phrase into a new and sweeping legal rule, by 

holding that anyone who makes a formal statement for the

purpose of later prosecution—no matter how removed

from the crime—must be considered a “witness against” 

the defendant. Ante, at 3–5. The Court cites no authority 

to justify this expansive new interpretation. 

B 

No historical evidence supports the Court’s conclusion 

that the Confrontation Clause was understood to extend 

beyond conventional witnesses to include analysts who 
Cite as: 557 U. S. ____ (2009) 19 

KENNEDY, J., dissenting 

conduct scientific tests far removed from the crime and the 

defendant. Indeed, what little evidence there is contradicts this interpretation. 

Though the Framers had no forensic scientists, they did 

use another kind of unconventional witness—the copyist. 

A copyist’s work may be as essential to a criminal prosecution as the forensic analyst’s. To convict a man of bigamy,

for example, the State often requires his marriage records.

See, e.g., Williams v. State, 54 Ala. 131, 134, 135 (1875); 

State v. Potter, 52 Vt. 33, 38 (1879). But if the original 

records cannot be taken from the archive, the prosecution

must rely on copies of those records, made for the purpose 

of introducing the copies into evidence at trial. See ibid. 

In that case, the copyist’s honesty and diligence are just as

important as the analyst’s here. If the copyist falsifies a

copy, or even misspells a name or transposes a date, those 

flaws could lead the jury to convict. Because so much 

depends on his or her honesty and diligence, the copyist 

often prepares an affidavit certifying that the copy is true 

and accurate. 

Such a certificate is beyond question a testimonial 

statement under the Court’s definition: It is a formal outof-court statement offered for the truth of two matters (the

copyist’s honesty and the copy’s accuracy), and it is prepared for a criminal prosecution.

During the Framers’ era copyists’ affidavits were accepted without hesitation by American courts. See, e.g., 

United States v. Percheman, 7 Pet. 51, 85 (1833) (opinion

for the Court by Marshall, C. J.); see also Advisory Committee’s Note on Fed. Rule Evid. 902(4), 28 U. S. C. App.,

p. 390 (“The common law . . . recognized the procedure of

authenticating copies of public records by certificate”); 5 J. 

Wigmore, Evidence §§1677, 1678 (J. Chadbourn rev. 

1974). And courts admitted copyists’ affidavits in criminal 

as well as civil trials. See Williams, supra; Potter, supra. 

This demonstrates that the framing generation, in con­
20 MELENDEZ-DIAZ v. MASSACHUSETTS 

KENNEDY, J., dissenting 

trast to the Court today, did not consider the Confrontation Clause to require in-court confrontation of unconventional authors of testimonial statements. 

The Court attempts to explain away this historical

exception to its rule by noting that a copyist’s authority is

“narrowly circumscribed.” Ante, at 16. But the Court does 

not explain why that matters, nor, if it does matter, why

laboratory analysts’ authority should not also be deemed

“narrowly circumscribed” so that they, too, may be excused

from testifying. And drawing these fine distinctions cannot be squared with the Court’s avowed allegiance to 

formalism. Determining whether a witness’ authority is

“narrowly circumscribed” has nothing to do with Crawford’s testimonial framework. It instead appears much 

closer to the pre-Crawford rule of Ohio v. Roberts, under 

which a statement could be admitted without testimony if 

it “bears adequate indicia of reliability.” 448 U. S., at 66 

(internal quotation marks omitted).

In keeping with the traditional understanding of the 

Confrontation Clause, this Court in Dowdell v. United 

States, 221 U. S. 325 (1911), rejected a challenge to the

use of certificates, sworn out by a clerk of court, a trial

judge, and a court reporter, stating that defendants had

been present at trial. Those certificates, like a copyist’s

certificate, met every requirement of the Court’s current

definition of “testimonial.” In rejecting the defendants’

claim that use of the certificates violated the Confrontation Clause, the Court in Dowdell explained that the

officials who executed the certificates “were not witnesses 

against the accused” because they “were not asked to

testify to facts concerning [the defendants’] guilt or innocence.” Id., at 330. Indeed, as recently as Davis, the 

Court reaffirmed Dowdell. 547 U. S., at 825. 

By insisting that every author of a testimonial statement appear for confrontation, on pain of excluding the

statement from evidence, the Court does violence to the 
Cite as: 557 U. S. ____ (2009) 21 

KENNEDY, J., dissenting 

Framers’ sensible, and limited, conception of the right to 

confront “witnesses against” the defendant. 

C 

In addition to lacking support in historical practice or in 

this Court’s precedent, the Court’s decision is also contrary to authority extending over at least 90 years, 35

States, and six Federal Courts of Appeals. 

Almost 100 years ago three state supreme courts held

that their state constitutions did not require analysts to

testify in court. In a case much like this one, the Massachusetts Supreme Judicial Court upheld the admission of 

a certificate stating that the liquid seized from the defendant contained alcohol, even though the author of the

certificate did not testify. Commonwealth v. Slavski, 245 

Mass. 405, 413, 140 N. E. 465, 467 (1923). The highest

courts in Connecticut and Virginia reached similar conclusions under their own constitutions. State v. Torello, 103 

Conn. 511, 131 A. 429 (1925); Bracey v. Commonwealth, 

119 Va. 867, 89 S. E. 144 (1916). Just two state courts 

appear to have read a state constitution to require a contrary result. State v. Clark, 290 Mont. 479, 484–489, 964 

P. 2d 766, 770–772 (1998) (laboratory drug report requires 

confrontation under Montana’s Constitution, which is 

“[u]nlike its federal counterpart”); State v. Birchfield, 342 

Ore. 624, 157 P. 3d 216 (2007), but see id., at 631–632, 157 

P. 3d, at 220 (suggesting that a “typical notice requirement” would be lawful).

As for the Federal Constitution, before Crawford the 

authority was stronger still: The Sixth Amendment does 

not require analysts to testify in court. All Federal Courts 

of Appeals to consider the issue agreed. Sherman v. Scott, 

62 F. 3d 136, 139–142 (CA5 1995); Minner v. Kerby, 30 

F. 3d 1311, 1313–1315 (CA10 1994); United States v. 

Baker, 855 F. 2d 1353, 1359–1360 (CA8 1988); Reardon v. 

Manson, 806 F. 2d 39 (CA2 1986); Kay v. United States, 
22 MELENDEZ-DIAZ v. MASSACHUSETTS 

KENNEDY, J., dissenting 

255 F. 2d 476, 480–481 (CA4 1958); see also Manocchio v. 

Moran, 919 F. 2d 770, 777–782 (CA1 1990) (autopsy report 

stating cause of victim’s death). Some 24 state courts, and 

the Court of Appeals for the Armed Forces, were in accord. 

See Appendix A, infra. (Some cases cited in the appendixes concern doctors, coroners, and calibrators rather 

than laboratory analysts, but their reasoning is much the 

same.) Eleven more state courts upheld burden-shifting 

statutes that reduce, if not eliminate, the right to confrontation by requiring the defendant to take affirmative steps

prior to trial to summon the analyst. See ibid. Because 

these burden-shifting statutes may be invalidated by the 

Court’s reasoning, these 11 decisions, too, appear contrary

to today’s opinion. See Part III–B, infra. Most of the 

remaining States, far from endorsing the Court’s view, 

appear not to have addressed the question prior to Crawford. Against this weight of authority, the Court proffers

just two cases from intermediate state courts of appeals. 

Ante, at 6–7. 

On a practical level, today’s ruling would cause less

disruption if the States’ hearsay rules had already required analysts to testify. But few States require this. At 

least sixteen state courts have held that their evidentiary

rules permit scientific test results, calibration certificates,

and the observations of medical personnel to enter evidence without in-court testimony. See Appendix B, infra. 

The Federal Courts of Appeals have reached the same

conclusion in applying the federal hearsay rule. United 

States v. Garnett, 122 F. 3d 1016, 1018–1019 (CA11 1997) 

(per curiam); United States v. Gilbert, 774 F. 2d 962, 965 

(CA9 1985) (per curiam); United States v. Ware, 247 F. 2d 

698, 699–700 (CA7 1957); but see United States v. Oates, 

560 F. 2d 45, 82 (CA2 1977) (report prepared by law enforcement not admissible under public-records or business-records exceptions to federal hearsay rule). 

The modern trend in the state courts has been away 
Cite as: 557 U. S. ____ (2009) 23 

KENNEDY, J., dissenting 

from the Court’s rule and toward the admission of scientific test results without testimony—perhaps because the

States have recognized the increasing reliability of scientific testing. See Appendix B, infra (citing cases from

three States overruling or limiting previous precedents 

that had adopted the Court’s rule as a matter of state 

law). It appears that a mere six courts continue to interpret their States’ hearsay laws to require analysts to

testify. See ibid. And, of course, where courts have 

grounded their decisions in state law, rather than the 

Constitution, the legislatures in those States have had, 

until now, the power to abrogate the courts’ interpretation 

if the costs were shown to outweigh the benefits. Today

the Court strips that authority from the States by carving

the minority view into the constitutional text.

State legislatures, and not the Members of this Court,

have the authority to shape the rules of evidence. The 

Court therefore errs when it relies in such great measure

on the recent report of the National Academy of Sciences. 

Ante, at 12–14 (discussing National Research Council of 

the National Academies, Strengthening Forensic Science 

in the United States: A Path Forward (Prepublication

Copy Feb. 2009)). That report is not directed to this

Court, but rather to the elected representatives in Congress and the state legislatures, who, unlike Members of 

this Court, have the power and competence to determine 

whether scientific tests are unreliable and, if so, whether 

testimony is the proper solution to the problem. 

The Court rejects the well-established understanding—

extending across at least 90 years, 35 States and six Federal Courts of Appeals—that the Constitution does not 

require analysts to testify in court before their analysis 

may be introduced into evidence. The only authority on

which the Court can rely is its own speculation on the

meaning of the word “testimonial,” made in two recent

opinions that said nothing about scientific analysis or 
24 MELENDEZ-DIAZ v. MASSACHUSETTS 

KENNEDY, J., dissenting 

scientific analysts. 

III 

In an attempt to show that the “sky will not fall after 

today’s decision,” ante, at 20, the Court makes three arguments, none of which withstands scrutiny. 

A 

In an unconvincing effort to play down the threat that

today’s new rule will disrupt or even end criminal prosecutions, the Court professes a hope that defense counsel will 

decline to raise what will soon be known as the MelendezDiaz objection. Ante, at 22. The Court bases this expectation on its understanding that defense attorneys surrender constitutional rights because the attorneys do not 

“want to antagonize the judge or jury by wasting their 

time.” Ibid. 

The Court’s reasoning is troubling on at least two levels. 

First, the Court’s speculation rests on the apparent belief 

that our Nation’s trial judges and jurors are unwilling to

accept zealous advocacy and that, once “antagonize[d]” by 

it, will punish such advocates with adverse rulings. Ibid. 

The Court offers no support for this stunning slur on the

integrity of the Nation’s courts. It is commonplace for the

defense to request, at the conclusion of the prosecution’s 

opening case, a directed verdict of acquittal. If the prosecution has failed to prove an element of the crime—even 

an element that is technical and rather obvious, such as 

movement of a car in interstate commerce—then the case 

must be dismissed. Until today one would not have

thought that judges should be angered at the defense for 

making such motions, nor that counsel has some sort of 

obligation to avoid being troublesome when the prosecution has not done all the law requires to prove its case. 

Second, even if the Court were right to expect trial

judges to feel “antagonize[d]” by Melendez-Diaz objections

and to then vent their anger by punishing the lawyer in 
Cite as: 557 U. S. ____ (2009) 25 

KENNEDY, J., dissenting 

some way, there is no authority to support the Court’s

suggestion that a lawyer may shirk his or her professional

duties just to avoid judicial displeasure. There is good 

reason why the Court cites no authority for this suggestion—it is contrary to what some of us, at least, have long

understood to be defense counsel’s duty to be a zealous

advocate for every client. This Court has recognized the

bedrock principle that a competent criminal defense lawyer must put the prosecution to its proof: 

“[T]he adversarial process protected by the Sixth

Amendment requires that the accused have ‘counsel

acting in the role of an advocate.’ Anders v. California, 386 U. S. 738, 743 (1967). The right to the effective assistance of counsel is thus the right of the accused to require the prosecution’s case to survive the

crucible of meaningful adversarial testing. When a 

true adversarial criminal trial has been conducted . . . 

the kind of testing envisioned by the Sixth Amendment has occurred. But if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated.” United States v. 

Cronic, 466 U. S. 648, 656–657 (1984) (footnotes 

omitted). 

See also ABA Model Code of Professional Responsibility, 

Canon 7–1, in ABA Compendium of Professional Responsibility Rules and Standards (2008) (“The duty of a lawyer, 

both to his client and to the legal system, is to represent 

his client zealously within the bounds of the law . . .” 

(footnotes omitted)).

The instant case demonstrates how zealous defense 

counsel will defend their clients. To convict, the prosecution must prove the substance is cocaine. Under the 

Court’s new rule, apparently only an analyst’s testimony 

suffices to prove that fact. (Of course there will also be a 

large universe of other crimes, ranging from homicide to 
26 MELENDEZ-DIAZ v. MASSACHUSETTS 

KENNEDY, J., dissenting 

robbery, where scientific evidence is necessary to prove an 

element.) In cases where scientific evidence is necessary 

to prove an element of the crime, the Court’s rule requires 

the prosecution to call the person identified as the analyst;

this requirement has become a new prosecutorial duty 

linked with proving the State’s case beyond a reasonable 

doubt. Unless the Court is ashamed of its new rule, it is 

inexplicable that the Court seeks to limit its damage by 

hoping that defense counsel will be derelict in their duty 

to insist that the prosecution prove its case. That is simply not the way the adversarial system works.

In any event, the Court’s hope is sure to prove unfounded. The Court surmises that “[i]t is unlikely that

defense counsel will insist on live testimony whose effect 

will be merely to highlight rather than cast doubt upon 

the forensic analysis.” Ante, at 22. This optimistic prediction misunderstands how criminal trials work. If the 

defense does not plan to challenge the test result, “highlight[ing]” that result through testimony does not harm

the defense as the Court supposes. If the analyst cannot 

reach the courtroom in time to testify, however, a 

Melendez-Diaz objection grants the defense a great windfall: The analyst’s work cannot come into evidence. Given 

the prospect of such a windfall (which may, in and of itself,

secure an acquittal) few zealous advocates will pledge, 

prior to trial, not to raise a Melendez-Diaz objection.

Defense counsel will accept the risk that the jury may

hear the analyst’s live testimony, in exchange for the 

chance that the analyst fails to appear and the government’s case collapses. And if, as here, the defense is not 

that the substance was harmless, but instead that the 

accused did not possess it, the testimony of the technician 

is a formalism that does not detract from the defense case. 

In further support of its unlikely hope, the Court relies 

on the Brief for Law Professors as Amici Curiae 7–8, 

which reports that nearly 95% of convictions are obtained 
Cite as: 557 U. S. ____ (2009) 27 

KENNEDY, J., dissenting 

via guilty plea and thus do not require in-court testimony

from laboratory analysts. Ante, at 20. What the Court 

does not consider is how its holding will alter these statistics. The defense bar today gains the formidable power to 

require the government to transport the analyst to the

courtroom at the time of trial. Zealous counsel will insist 

upon concessions: a plea bargain, or a more lenient sentence in exchange for relinquishing this remarkable 

power. 

B 

As further reassurance that the “sky will not fall after 

today’s decision,” ante, at 20, the Court notes that many 

States have enacted burden-shifting statutes that require

the defendant to assert his Confrontation Clause right

prior to trial or else “forfeit” it “by silence.” Ibid. The 

Court implies that by shifting the burden to the defendant 

to take affirmative steps to produce the analyst, these

statutes reduce the burden on the prosecution. 

The Court holds that these burden-shifting statutes are

valid because, in the Court’s view, they “shift no burden

whatever.” Ante, at 21. While this conclusion is welcome, 

the premise appears flawed. Even what the Court calls 

the “simplest form” of burden-shifting statutes do impose

requirements on the defendant, who must make a formal

demand, with proper service, well before trial. Some 

statutes impose more requirements, for instance by requiring defense counsel to subpoena the analyst, to show 

good cause for demanding the analyst’s presence, or even 

to affirm under oath an intent to cross-examine the analyst. See generally Metzger, Cheating the Constitution, 59

Vand. L. Rev. 475, 481–485 (2006). In a future case, the 

Court may find that some of these more onerous burdenshifting statutes violate the Confrontation Clause because 

they “impos[e] a burden . . . on the defendant to bring 

. . . adverse witnesses into court.” Ante, at 19. 
28 MELENDEZ-DIAZ v. MASSACHUSETTS 

KENNEDY, J., dissenting 

The burden-shifting statutes thus provide little reassurance that this case will not impose a meaningless formalism across the board. 

C 

In a further effort to support its assessment that today’s

decision will not cause disruption, the Court cites 10 decisions from States that, the Court asserts, “have already 

adopted the constitutional rule we announce today.” Ante, 

at 20, and n. 11. The Court assures us that “there is no 

evidence that the criminal justice system has ground to a

halt in the[se] States.” Ante, at 20. 

On inspection, the citations prove far less reassuring

than promised. Seven were decided by courts that considered themselves bound by Crawford. These cases thus 

offer no support for the Court’s assertion that the state 

jurists independently “adopted” the Court’s interpretation

as a matter of state law. Quite the contrary, the debate in

those seven courts was over just how far this Court intended Crawford to sweep. See, e.g., State v. Belvin, 986 

So. 2d 516, 526 (Fla. 2008) (Wells, J., concurring in part 

and dissenting in part) (“I believe that the majority has 

extended the Crawford and Davis decisions beyond their

intended reach” (citations omitted)). The Court should 

correct these courts’ overbroad reading of Crawford, not 

endorse it. Were the Court to do so, these seven jurisdictions might well change their position.

Moreover, because these seven courts only “adopted” the

Court’s position in the wake of Crawford, their decisions 

are all quite recent. These States have not yet been subject to the widespread, adverse results of the formalism 

the Court mandates today. 

The citations also fail to reassure for a different reason. 

Five of the Court’s 10 citations—including all 3 preCrawford cases—come from States that have reduced the 

confrontation right. Four States have enacted a burden­
Cite as: 557 U. S. ____ (2009) 29 

KENNEDY, J., dissenting 

shifting statute requiring the defendant to give early

notice of his intent to confront the analyst. See Part III– 

B, supra; Colorado: Hinojos-Mendoza v. People, 169 P. 3d 

662, 668–671 (Colo. 2007), Colo. Rev. Stat. §16–3–309 

(2008) (defendant must give notice 10 days before trial); 

Georgia: Compare Miller v. State, 266 Ga. 850, 854–855, 

472 S. E. 2d 74, 78–79 (1996) (striking down earlier notice

statute requiring defendant to show good cause, prior to 

trial, to call the analyst), with Ga. Code Ann. §35–3–154.1

(2006) (defendant must give notice 10 days before trial); 

Illinois: People v. McClanahan, 191 Ill. 2d 127, 133–134, 

729 N. E. 2d 470, 474–475 (2000), Ill. Comp. Stat., ch. 725,

§5/115–15 (2006) (defendant must give notice “within 7 

days” of “receipt of the report”); Oregon: State v. 

Birchfield, 342 Ore., at 631–632, 157 P. 3d, at 220 (suggesting that a “typical notice requirement” would be lawful), see Ore. Rev. Stat. §475.235 (2007) (defendant must 

give notice 15 days before trial). A fifth State, Mississippi, 

excuses the prosecution from producing the analyst who

conducted the test, so long as it produces someone. Compare Barnette v. State, 481 So. 2d 788, 792 (Miss. 1985) 

(cited by the Court), with McGowen v. State, 859 So. 2d 

320, 339–340 (Miss. 2003) (the Sixth Amendment does not 

require confrontation with the particular analyst who

conducted the test). It is possible that neither Mississippi’s practice nor the burden-shifting statutes can be 

reconciled with the Court’s holding. See Part III–B, supra. 

The disruption caused by today’s decision has yet to take

place in these States. 

* * * 

Laboratory analysts who conduct routine scientific tests

are not the kind of conventional witnesses to whom the 

Confrontation Clause refers. The judgment of the Appeals

Court of Massachusetts should be affirmed. 
KENNEDY, J., dissenting 

30 MELENDEZ-DIAZ v. MASSACHUSETTS 

Appendix A to opinion of KENNEDY, J. 

APPENDIXES 

A 

The following authorities held, prior to Crawford, that 

the Confrontation Clause does not require confrontation of 

the analyst who conducted a routine scientific test: United 

States v. Vietor, 10 M. J. 69, 72 (Ct. Mil. App. 1980) (laboratory drug report); State v. Cosgrove, 181 Conn. 562, 574– 

578, 436 A. 2d 33, 40–41 (1980) (same); Howard v. United 

States, 473 A. 2d 835, 838–839 (D. C. 1984) (same); Baber 

v. State, 775 So. 2d 258 (Fla. 2000) (blood-alcohol test); 

Commonwealth v. Harvard, 356 Mass. 452, 253 N. E. 2d 

346 (1969) (laboratory drug report); DeRosa v. First Judicial Dist. Court of State ex rel. Carson City, 115 Nev. 225, 

232–233, 985 P. 2d 157, 162 (1999) (per curiam) (bloodalcohol test); State v. Coombs, 149 N. H. 319, 321–322, 821 

A. 2d 1030, 1032 (2003) (blood-alcohol test); State v. 

Fischer, 459 N. W. 2d 818 (N. D. 1990) (laboratory drug

report); Commonwealth v. Carter, 593 Pa. 562, 932 A. 2d 

1261 (2007) (laboratory drug report; applying preCrawford law); State v. Tavares, 590 A. 2d 867, 872–874 

(R. I. 1991) (laboratory analysis of victim’s bodily fluid); 

State v. Hutto, 325 S. C. 221, 228–230, 481 S. E. 2d 432, 

436 (1997) (fingerprint); State v. Best, 146 Ariz. 1, 3–4, 703 

P. 2d 548, 550–551 (App. 1985) (same); State v. Christian, 

119 N. M. 776, 895 P. 2d 676 (App. 1995) (blood-alcohol 

test); State v. Sosa, 59 Wash. App. 678, 684–687, 800 P. 2d

839, 843–844 (1990) (laboratory drug report). 

The following authorities held, prior to Crawford, that 

the Confrontation Clause does not require confrontation of 

the results of autopsy and hospital reports describing the 

victim’s injuries: People v. Clark, 3 Cal. 4th 41, 157–159, 

833 P. 2d 561, 627–628 (1992) (autopsy report); Henson v. 

State, 332 A. 2d 773, 774–776 (Del. 1975) (treating physician’s report of victim’s injuries, with medical conclusions

redacted); Collins v. State, 267 Ind. 233, 235–236, 369 
KENNEDY, J., dissenting 

Cite as: 557 U. S. ____ (2009) 31 

Appendix A to opinion of KENNEDY, J. 

N. E. 2d 422, 423 (1977) (autopsy report); State v. 

Wilburn, 196 La. 113, 115–118, 198 So. 765, 765–766 

(1940) (hospital record stating victim’s cause of death) 

(citing State v. Parker, 7 La. Ann. 83 (1852) (coroner’s

written inquest stating cause of death)); State v. Garlick, 

313 Md. 209, 223–225, 545 A. 2d 27, 34 (1988) (blood test 

showing presence of illegal drug); People v. Kirtdoll, 391 

Mich. 370, 385–391, 217 N. W. 2d 37, 46–48 (1974) (treating physician’s report describing victim’s injuries); State v. 

Spikes, 67 Ohio St. 2d 405, 411–415, 423 N. E. 2d 1122, 

1128–1130 (1981) (treating physician’s report of defendant’s injuries); State v. Kreck, 86 Wash. 2d 112, 117–120, 

542 P. 2d 782, 786–787 (1975) (laboratory report stating 

that murder victim’s blood contained poison). 

The following authorities held, prior to Crawford, that 

the Confrontation Clause does not require confrontation of 

certificates stating that instruments were in good working

order at the time of a test: State v. Ing, 53 Haw. 466, 467– 

473, 497 P. 2d 575, 577–579 (1972) (certificate that police

car’s speedometer was in working order), accord, State v. 

Ofa, 9 Haw. App. 130, 135–139, 828 P. 2d 813, 817–818 

(1992) (per curiam) (certificate that breathalyzer was in 

working order); State v. Ruiz, 120 N. M. 534, 903 P. 2d 845 

(App. 1995) (same); State v. Dilliner, 212 W. Va. 135, 141– 

142, 569 S. E. 2d 211, 217–218 (2002) (same); State v. 

Huggins, 659 P. 2d 613, 616–617 (Alaska App. 1982) 

(same); State v. Conway, 70 Ore. App. 721, 690 P. 2d 1128 

(1984) (same).

The following decisions reduced the right to confront the 

results of scientific tests by upholding burden-shifting 

statutes that require the defendant to take affirmative

steps prior to trial to summon the analyst: Johnson v. 

State, 303 Ark. 12, 18–20, 792 S. W. 2d 863, 866–867 

(1990) (defendant must give notice 10 days before trial); 

State v. Davison, 245 N. W. 2d 321 (Iowa 1976), Iowa Code 

Ann. §691.2 (2008) (same); State v. Crow, 266 Kan. 690, 
KENNEDY, J., dissenting 

32 MELENDEZ-DIAZ v. MASSACHUSETTS 

Appendix B to opinion of KENNEDY, J. 

974 P. 2d 100 (1999) (defendant must give notice within 10

days of receiving the result and must show that the result

will be challenged at trial); State v. Christianson, 404 

A. 2d 999 (Me. 1979) (defendant must give notice 10 days 

before trial); State v. Miller, 170 N. J. 417, 436–437, 790 

A. 2d 144, 156 (2002) (defendant must give notice within

10 days of receiving the result and must show that the 

result will be challenged at trial); State v. Smith, 312 N. C. 

361, 381–382, 323 S. E. 2d 316, 328 (1984) (defendant 

must subpoena analyst); State v. Hancock, 317 Ore. 5, 9– 

12, 854 P. 2d 926, 928–930 (1993) (same), but see State v. 

Birchfield, 342 Ore. 624, 157 P. 3d 216 (reducing defendant’s burden); State v. Hughes, 713 S. W. 2d 58 (1986) 

(defendant must subpoena analyst); Magruder v. Commonwealth, 275 Va. 283, 295–300, 657 S. E. 2d 113, 119– 

121 (2008) (defendant must “call the person performing 

such analysis,” at the State’s expense); People v. MayfieldUlloa, 817 P. 2d 603 (Colo. App. 1991) (defendant must

give notice to State and the analyst 10 days before trial); 

State v. Matthews, 632 So. 2d 294, 300–302 (La. App.

1993) (defendant must give notice five days before trial). 

B 

The following authorities hold that State Rules of Evidence permit the results of routine scientific tests to be

admitted into evidence without confrontation: State v. 

Torres, 60 Haw. 271, 589 P. 2d 83 (1978) (X ray of victim’s 

body); State v. Davis, 269 N. W. 2d 434, 440 (Iowa 1978) 

(laboratory analysis of victim’s bodily fluid); State v. Taylor, 486 S. W. 2d 239, 241–243 (Mo. 1972) (microscopic

comparison of wood chip retrieved from defendant’s clothing with wood at crime scene); State v. Snider, 168 Mont. 

220, 229–230, 541 P. 2d 1204, 1210 (1975) (laboratory 

drug report); People v. Porter, 46 App. Div. 2d 307, 311–

313, 362 N. Y. S. 2d 249, 255–256 (1974) (blood-alcohol 

report); Robertson v. Commonwealth, 211 Va. 62, 64–68, 
KENNEDY, J., dissenting 

Cite as: 557 U. S. ____ (2009) 33 

Appendix B to opinion of KENNEDY, J. 

175 S. E. 2d 260, 262–264 (1970) (laboratory analysis of 

victim’s bodily fluid); Kreck, 86 Wash. 2d, 117–120, 542 

P. 2d, 786–787 (laboratory report stating that murder

victim’s blood contained poison).

The following authorities hold that State Rules of Evidence permit autopsy and hospital reports to be admitted

into evidence without confrontation: People v. Williams, 

174 Cal. App. 2d 364, 389–391, 345 P. 2d 47, 63–64 (1959) 

(autopsy report); Henson, supra, at 775–776 (report of

physician who examined victim); Wilburn, 196 La., at 

115–118, 198 So., at 765–766 (hospital record stating 

victim’s cause of death); Garlick, 313 Md., at 223–225, 545 

A. 2d, at 34 (blood test); State v. Reddick, 53 N. J. 66, 68– 

69, 248 A. 2d 425, 426–427 (1968) (per curiam) (autopsy

report stating factual findings, but not opinions, of medical 

examiner); People v. Nisonoff, 293 N. Y. 597, 59 N. E. 2d 

420 (1944) (same).

The following authorities hold that State Rules of Evidence permit certificates, which state that scientific instruments were in good working order, to be admitted into

evidence without confrontation: Wester v. State, 528 P. 2d 

1179, 1183 (Alaska 1974) (certificate stating that breathalyzer machine was in working order); Best v. State, 328 

A. 2d 141, 143 (Del. 1974) (certificate that breathalyzer 

was in working order); State v. Rines, 269 A. 2d 9, 13–15 

(Me. 1970) (manufacturer’s certificate stating that bloodalcohol test kit was in working order admissible under the 

business-records exception); McIlwain v. State, 700 So. 2d 

586, 590–591 (Miss. 1997) (same). 

Taking the minority view, the following authorities 

interpret state hearsay rules to require confrontation of

the results of routine scientific tests or observations of 

medical personnel: State v. Sandoval-Tena, 138 Idaho 908, 

912, 71 P. 3d 1055, 1059 (2003) (laboratory drug report 

inadmissible under state hearsay rule); Spears v. State, 

241 So. 2d 148 (Miss. 1970) (nurse’s observation of victim 
KENNEDY, J., dissenting 

34 MELENDEZ-DIAZ v. MASSACHUSETTS 

Appendix B to opinion of KENNEDY, J. 

inadmissible under state hearsay rule and constitution); 

State v. James, 255 S. C. 365, 179 S. E. 2d 41 (1971) 

(chemical analysis of victim’s bodily fluid inadmissible 

under state hearsay rule); Cole v. State, 839 S. W. 2d 798 

(Tex. Ct. Crim. App. 1990) (laboratory drug report inadmissible under state hearsay rule); State v. Workman, 

2005 UT 66, ¶¶9–20, 122 P. 3d 639, 642–643 (same); State 

v. Williams, 2002 WI 58, ¶¶32–55, 253 Wis. 2d 99, 118–

127, 644 N. W. 2d 919, 928–932 (same), but see id., at 

109–117, 644 N. W. 2d, at 924–927 (no confrontation 

violation where expert testified based on test results 

prepared by an out-of-court analyst).

This summary does not include decisions that find test

results inadmissible because the State failed to lay a

proper foundation. Rather than endorse the minority

view, those cases merely reaffirm the government’s burden

to prove the authenticity of its evidence and the applicability of an exception to the state hearsay rule. See, e.g., 

State v. Fisher, 178 N. W. 2d 380 (Iowa 1970) (laboratory 

test of victim’s bodily fluid inadmissible under businessrecords exception because the prosecution did not show 

that it was kept in regular course of business); State v. 

Foster, 198 Kan. 52, 422 P. 2d 964 (1967) (no foundation 

laid for introduction of blood-alcohol test because the 

prosecution did not show that the test was conducted in

the usual course of business); Moon v. State, 300 Md. 354, 

367–371, 478 A. 2d 695, 702–703 (1984) (blood alcohol test 

inadmissible because insufficient foundational evidence 

that the test was conducted in a reliable manner); cf. 

Davis, 269 N.W. 2d, at 440 (laboratory test of victim’s

bodily fluid admitted under business-records exception to 

state hearsay rule); Garlick, 313 Md., at 215, n. 2, 223– 

225, 545 A. 2d, at 30, n. 2, 34 (laboratory test of defendant’s blood falls within “firmly rooted” hearsay exception).

Three States once espoused the minority view but ap­
KENNEDY, J., dissenting 

Cite as: 557 U. S. ____ (2009) 35 

Appendix B to opinion of KENNEDY, J. 

pear to have changed course to some degree: People v. 

Lewis, 294 Mich. 684, 293 N. W. 907 (1940) (hospital 

record describing victim’s injuries inadmissible hearsay),

overruled by Kirtdoll, 391 Mich., at 372, 217 N. W. 2d, at 

39 (noting that “in its 35 year long history, Lewis . . . has 

never been relied upon to actually deny admission into

evidence of a business entry record in a criminal case”),

but see People v. McDaniel, 469 Mich. 409, 670 N. W. 2d 

659 (2003) (per curiam) (police laboratory report inadmissible hearsay); State v. Tims, 9 Ohio St. 2d 136, 137–138, 

224 N. E. 2d 348, 350 (1967) (hospital record describing 

victim’s injuries inadmissible hearsay), overruled by 

Spikes, 67 Ohio St. 2d, at 411–415, 423 N. E. 2d, at 1128– 

1130; State v. Henderson, 554 S. W. 2d 117 (Tenn. 1977) 

(laboratory drug report inadmissible absent confrontation), abrogated by statute as recognized by Hughes, 713 

S. W. 2d 58 (statute permitted defendant to subpoena

analyst who prepared blood alcohol report; by not doing so, 

defendant waived his right to confront the analyst).