1 (SlipOpin i o n) OCTOBER T ERM, 20 08
Syllabu s

N O TE : Wh er e it i s feas ibl e , a s yllab u s (h ead n ot e) wil lbe rel e as ed , as is bein g d o n e incon n ecti onwithth is cas e , atth e ti meth e op in i o n is is s u ed

. Th e s yll abu s con s titu tes n o p a rt of th e op in i o nof th eC o u r t bu t h a s be en pre p are dbyt h e Re po rte ro f De ci sio n s fo r t h e co nveni e nce of t h e reade r
. Se e United Statesv. Detroit Timbe r& Lumb er Co., 200U. S

. 3 21, 337

. 

## SUPREME CO URT O FTHE UNI TED STATES

Syllabu s
MELENDEZ-DIAZ v . MASS AC HUSE TTS

CERTIORARI TO THE APPEALS COURTOF MASSAC H USETT S
No. 07–5 91. Ar gu ed Nov e mber10, 200 8

—Dec i ded Ju ne 25, 200 9 At petitioner’s state-court drug tria l, the p r osecution intr oduced certifi

c a tes of s t ate labor a tor yan aly s ts st atin g th at m a ter i al seized bypo
lice a n d co nne ct ed t opet i t i oner wa s coca ine of a cert a i nq u a n t i t y
. As
r e qu ir ed byMass ac h u s etts l a w, th e c e r t ific ates wer esw or nto befor e a n o tar ypubli can d wer esubmit ted as pr i m a fac i e eviden c eof wh at they asserted. Peti tionerobjected, asserti n g that Crawford v. Wash

ington , 541 U. S. 36, r e qu ir ed th e an aly s ts to te stifyin per s on . Th e tr ial c o ur t dis a gr eed, the c e r t ific ates wer eadmi tted, an d petitioner
wa s convict e d. The Ma ss a c hus et t s Appea l s Courta f firm ed, rej e ct ing petitioner ’ s c l aim tha tthe c e r t ific ates’a d mis s ion vi ola t ed the Six t h Amendment. Held: The admission of the certificat es violated pe titioner’s Sixth

Amen dmen t r i gh t to c o n f r o n tth e witn esses ag ain s t h i m. Pp. 3–23. (a) Under Crawford, a witn ess’ s test imo n yag ain s t a defen d an t is in admis s ib le u n l ess th e w i t n ess appe ar s at tr i a l or , if t h e w i tn ess i s unava ilab l e, the defenda n t ha d apri o r opportunityforc r os s
ex amin ation

. 541 U. S., at 54. Th e c e r tific ates h e r ear e affidavi ts, which fall within the “core class of testi m onial statements” covered b ythe Confro nta t ion Cla u se, id., at 51. Th eyasser t ed th at th e sub

stan c efou n dinpetition e r ’ s possess ionw a s, as th e pr osec u t ion cla i m e d, coca ine of acert a i n weight—theprecise testi m ony the ana

lysts would be expected to pr ovide if called at tri a l. No t o n ly were the cert ifica t es ma de, a s Crawfordrequi r ed f o r testimonialstate m ents,

“under cir c u m s t a n ces which would lea da nobj e ct iv e wit n es s rea
son ablyto bel i e v eth at th e s t ate m en t wou l d be av ailable foru s e at a later trial,” id. , at 52, but underthe r e lev a nt M a ssac husetts l a w their sole pu rpose was to provid e prima facie evidence of the substance’s
c o mposition, q u ality , and net weight. Petitionerwas entitled to “b e c o nfr o nted with” the per s ons givi ngthis te stimonya ttr i a l. Id., at 54.2 M E LENDEZ -DIAZ v. MASSACHUS ETTS
Syllabu s Pp. 3–5.

(b) Th e ar gu m e n t s adv a n c ed to av oid t h is ra t h er s t ra ight forwa r d applica t ion of Crawfordare rejected. Respondent’s claim that th e an aly s ts ar e n o t subjec t to c o n f r o n t ationbec a u s e th eyar e n o t “ac c u
sator y” witnes ses finds no s u ppor tin the Six t h Amend m ent’ s tex tor in this Court’s case l a w. The affi ants’ te stimoni a l statements were not “nearly contemporaneous” with their observations, nor, if they h a d been , would th at fac tal t e rth e stateme n ts’testimon i a l c h ar ac ter

. There is nosupport for thep r opositionth a tw i tn esses w h o testifyr e
garding facts other than those obse rved at the crime scene are ex
empt from con f rontation. T h e absen ce of int e rroga t i on is irreleva nt ; a w i tn ess w h o v o lu n t eer s h i s tes t imon yis n oless a w i t n ess forSix t h Amendment p u rposes. The affidavi t s do n o t qu al ifyas t r adition a lof

fic i al orbu sin e ss r e c o r d s. Th e ar gu men tth at th e an aly s ts sh ou ld n o t be subjec tto c o n f r o n t ationbec a u s e their state m ents result from neu

tral scientific testing is l i tt l emore than an invi tation to r e tur nto the since-overrule d decision in Ohiov. Roberts , 448 U. S. 56, 66, wh ic h held that evi d enc ewith “par tic u lar i zed gu ar an tees of tr ustwor thi

ness” was ad miss ible wi thout c o nfr o ntation. Petitioner ’ s powerto
subpoen a th e an aly s ts i s n osubs titu te for t h e rightof confront a t ion. Finally, the re quirements of the Confrontation Cl ause may not be re
lax e d bec a use theymake the pr osec u t ion ’ s task bu r d en some. Inan y ev ent, the pr a c tic ein many Sta t es a l r e adyac c o r d s with today ’ s dec i

sion , an d th e ser i ou s disr u p tionpr edicted by respondent and the dis

sen th a s n o t mater i al ized. Pp. 5–23. 69 M a ss. App. 111 4, 870 N. E

. 2d 676, r e v e rsed an d r e man d ed.

S CALIA , J., delivered the opinion of the Cour t, in whic h S TEVENS , S OUTER , T HOMAS , and G IN SB U R G , JJ., joined. T HOMAS , J., filed a c o n c ur
ring opinion. K ENNEDY , J., filed a disse nting opinion, in whi c h R OBERTS , C. J., and B REYERan d ALITO , JJ., joined._________________

_________________ 1 Cite as: 55 7 U

. S. ____ (2009)
Opinion of theCourt

NOTIC E : Th is op i n ionis subjec t to f o rmalrevi si onbef o r e publicat ioninth e p r eli m in ary p rin t of th e U n it edS t at es R e p o rts

. R e ad ers ar e r e qu es ted to n o tif yth e R e p o rt e rof D e c i s i on s , Su p r em e C o u rt of th e U n ited St at es , Wa s h

ington, D. C. 2054 3, of any typ o gra p hical or other f o rmal err o rs , in or der th atc o rr ect i on sm a y b e mad eb e f o r e th ep r e lim in aryp rin t go es t o p r es s
. 

## SUPREME CO URT O FTHE UNI TED STATES

No. 07–5 91

LUIS E. M E LENDEZ- D IAZ, PETI TIONER v. MASS AC HUSE TTS
ON WRIT OF CERTIORARI TO THE APPEALS COURTOF MASSACH US ETTS [Ju n e25, 2009 ] J USTICE S CALIA delivered the opini o n of the Co urt. The Massachusetts courts in this case admitted into evidence affidavits reporting the results of forensic analy

sis which showed that material seized by the police an d connected to the defendant was cocaine. The question presented is whether those affid avits are “testimonial, ” rendering the affiants “witne sses” subject to the defen

dant’s righ t of confrontation under the Sixth Amendment. I In 2001, B o ston polic e officers r e ceived a tip that a Kmart employee, Tho m as Wright, was enga ging in suspi

cious activity. The in formant re ported thatWright re

peatedly re ceived phon e calls at work, afte r e a ch of whic h he would be picked up in front of th e store by a blue s e dan, and would return to t h e store a short time later. The police set up surveillance in the Kmart pa rking lot a n d witnessed this precise sequence of events. Wh en Wright got out of th e car upon his retur n , one of the officers de

tained and searched him, finding four clear white plastic bags contai ning a sub s tance resembling cocaine. The officer then signaled other officers on the scene to arrest2 M E LENDEZ -DIAZ v. MASSACHUS ETTS
Opinion of theCourt the two me n in the car

—one of wh om 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 passe ngers fidgeting and mak i ng furtive movements in the bac k of the ca r. Af ter de positing th e men at the station, th ey searchedthe police cruiser and found a pl astic bag containing 19 smaller plastic ba gs hidden in th e partition between the front an d back seats. They submitted the seized evidenc eto a state laboratory required by law to conduct ch emical analysis upon police request. Mass. Gen. Laws, ch. 111, §12 (Wes t 2006). Melendez-Diaz was ch arged wi thdistributing cocaine and with trafficking incocaine in an amount between 14 and 28 grams. Ch. 9 4 C, §§32A, 32E(b)(1). At trial, th e prosecution placed into evid encethe bags seized from Wright and from the police cruiser. It also submitted three “certi ficates 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 th e following results: The substance was foun d to contai n: Cocaine.” App. to Pet. for Cert. 2 4a, 26a, 28a. The certifi

cates were sworn to before a nota ry public by analysts at the State L aboratory Institute of the Massachusetts De

partment of Public Health, as requ ired under Massachu

setts law. Mass. Gen. Laws, ch. 1 11, §13. Petitioner objected to t h e admission of the certificates, asserting that our Co nfrontation Clause decision in Craw

fordv. Wa shington , 5 41 U. S. 3 6(2004), required the analysts to testify in person. The objection was overruled, and the certificates were admitted pursuant to state law as “prima f a cie evidence of the co mposition, quality, and the net wei ght of the narcotic .

. . analyzed.” Mass. Gen. Laws, ch. 1 11, §13. The jury found Melendez-Diaz guilty. He appealed,3 Cite as: 55 7 U

. S. ____ (2009)
Opinion of theCourt contending, among other things, that admission of the certificates violated his Si xth Amendment right to be confronted with the wi tnesses against him. The Appeal s Court of Massachusetts rejected the claim, affirmance order, 69 Mass. App. 1114, 870 N. E. 2d 6 76, 2007 WL 2189152, *4, n. 3 (July 31, 2007), relying o nthe Massa

chusetts S u preme Judicial Court’s decision in Common

weal thv. V erde , 444 M a ss. 279, 283–285, 827 N. E. 2d 70 1, 705–706 (2005), whichheld that the authors of certificates of forensic analysis are not subject to confro ntation under the Sixth Amendment. The Supreme Judicial Court de

nied review. 449 Mass. 1113, 874 N. E. 2d 407 (2007). We granted certiorari. 552 U. S. ___ (2 008). II The Sixth Amendment to the United State s Constitu

tion, made applicable to the States via the Fourteenth Amendment, Pointer v. Texas , 38 0 U. S. 400, 403 (1965), provides th at “[i]n all criminal prosecutions, the accused shall enjoythe right

. . . to be confronted with the wit

nesses against him.” In Crawfor d , after reviewing th e Clause’s historical underpinnings, we held th at it gua r an
tees a defendant’s righ t to confro nt those “who ‘bear testi

mony’ ” aga i nst him. 541 U. S., at 51. A w i tness’s test i

mony against a defendant is thus inadmissible unlessthe witness appears at tri al or, if the witness is unavailable, the defendant had a prio r opportunity for cr oss
examination. Id., at 5 4

. Our opinion described the class of testimonial state

ments covered by the Confrontation Clause asfollows: “Various formulations of this core class of testimo

nial statements exist: ex partein-court testimony or its functional equivalent—that is, material such as af

fidavits, custodial examinat ions, prior testimony that the defendant was unable to cross- examine, orsimilar pretrial statements that declarants would reasonably4 M E LENDEZ -DIAZ v. MASSACHUS ETTS
Opinion of theCourt expect to be used prosecut orially; extrajudicial state

ments .

. . c o ntained informalized testimonial materi

als, such as affidavits, depo sitions, prior testimony, or confessions; statements that were made under cir

cumstances which would lead a nobjective witness reasonably to believe that the statement would be available for use at a l a ter trial.” Id. , at 51–52 (inter

nal quotation marks an d citations omitted). There is little doubt th at the docu ments at issue in this case fall within the “core class of testimonial statements” thus described. Our d e scriptio n of that ca tegory mentions affidavits twice. See also Whitev. Illinois , 502 U. S. 346, 365 (1992) (T HOMAS , J., concurringin part andconcurrin g in judgment) (“[T]he Confrontat ion Clause is implicated by extrajudicia lstatements only insofar as they a r e contained in formaliz ed testimonial mate rials, such as affidavits, depositions, prior testi m ony, or confessi ons”). The docu

ments at issue here, while denominated by M a ssachusetts law “certificates,” are quite plainly affidavi ts: “declara

tion[s] of facts written down andsworn to b y the declara n t before an officer authorized to adm i nister oath s.” Black’s Law Dictionary 62 (8th ed. 2004). They are i n controverti

bly a “ ‘solemn declaration or affirmation made for the purpose of establishin gor proving some fact.’ ” Cra wford, supra, at 5 1 (quoting 2 N. Webster, An American Dictio n
ary of the English La nguage (18 28)). The fact in question is that the substance found in the possession of MelendezDiaz and his codefendants wa s, as the prosecuti o n claimed, cocaine—the precise testimony the analysts would be ex pected to pr ovide if called at t r ial. The “certifi

cates” are f unctionally identical to live, in-court testimony, doing “prec i sely what a witness does on direct examina

tion.” Dav i sv. Washingt on , 547 U. S. 813, 830 (2006) (emphasis deleted). H e re, moreover, not only were the affidavits “ ‘ma d e5 Cite as: 55 7 U

. S. ____ (2009)
Opinion of theCourt under circu mstances which would lead an o bjective wi t

ness reasonably to believe that the statement would b e available for use at a l a ter trial,’ ” Cra wford, supra, at52 , but under Massachusetts law the sole purposeof the a ffi

davits was to provide “prima facie evidence of the composi

tion, quality, and the net weight” of the a nalyzed sub

stance, Mass. Gen. Laws, ch. 1 11, §13. We can safely assume that the analysts were aware of the affidavits’ evidentiary purpose, si nce thatpurpose—as stated in the relevant state-law pro vision—was reprinted on the affida

vits themselves. See App. to Pet. for Cert. 25a, 27a, 29a. In short, under our d e cision in Cra wfordthe analysts’ affidavits were testimonial stat ements, an d the analysts were “witnesses” for purposes of the Sixth Amendment. Absent a s h owing that the analysts were unavailable to testify at trial and that petitioner had a prior opportuni ty to cross-ex amine them, petitioner was ent i tled to “ ‘b e confronted with’ ” the analysts at trial. Cra wford, supra, at 54. 1 III Respondent and the dissent advance a potpourri o f

——————

1 Con t r a r yto th e dissen t ’ s su g g e stion , post, at 3– 4, 7 (opi n i onof K ENNEDY , J.), we do not hold, a n d it is not the cas e , that anyone w h os e t e s t im ony m a y b ereleva ntin es t ab l is hing the chain of c u stody, authen

tic i tyof the s a mple, or ac c u r a c yof the testingdevi c e , must appear i n pers on a s pa r tof t h e pros ecut ion’s ca s e
. While t h e dis s e ntis correct that “[i]t i s the oblig ation of the pr osecuti o n to establi s h the chain of
cus t ody,” post , at 7, thi s does not mean th at everyone who laid hands o n the evidence must be calle d. As st atedi nthe dissent’s own quotatio n, ibid., from United States v. Lott, 854 F. 2d 24 4, 2 5 0 (C A7 198 8), “g a p s in t h e cha i n [of cus t ody] norm a lly go to the weight of the evidence
r a therthan its admi ssibil i ty .” It is up to the prosecution to decide what steps in the chain of custod y are so crucia l a s t oreq u ir e evidence; b u t what tes t imon y isintr oduc ed must (if the de fen d an t obj e c t s) be in tr o
duced live. A dditional ly, documents prepared in the re gular co urse o f equipment m a intenance m a y well qual if y a s nontes timonia lrecords

. See infra , at 15–1 6, 18.6 M E LENDEZ -DIAZ v. MASSACHUS ETTS
Opinion of theCourt analytic arguments in an effort to avoid this rath e r straightforward appli c ation of our holding in Cra wfo rd

. Before addressing them, howe ver, we must assure the reader of the falsity of the dissent’s opening alarum that we are “sweep[ing] away an acce pted rule governing th e admission of scientific evid ence” that has been “estab

lished for at least 90 ye ars” and“e xtends across at least 3 5 States and six Federal Courts of Appeals.” Post , at 1 (opinion of K ENN E DY , J.). The vast majority of the state-c o urt cases the dissent cites in support of thi s claim come not from the last 90 years, but from the las t30, and not surprisingly nearly all of them rely on our de cision in Ohiov. Roberts , 448U. S. 56 (1980), or its since-rejected th eory that unconfronted testimony was admis s ible as long as it bore indicia of reliability, id

. , at 66. See post , at 30. 2 As for the six Fed

eral Courts of Appeals cases ci ted by the dissent, five of them postdated and expressly relied on Roberts

. See post, at 21–22. The sixth predated Robertsbut re lied entirely on the same erroneous theory

. Se e Kayv. Unit e dSt at es , 255 F. 2d 476, 480–48 1 (CA4 1958) (rejecting confronta

tion clause challenge “where there is reasonable necessity for [the evidence] and where . . . the evidence has those qualities of reliability a n d trustworthiness”). A review of cases that predate the Robertsera yields a mixed pictu re. As the dissent notes, three state supreme court decisi ons from the early 20th century denied con

frontation with respect to ce rtificates of analysis regardi n g a substance’s alcohol content. See post, at 21 (citing case s

——————

2 The exception is a single pre- Rob erts case that relied onlongstand

ing Massachusetts precedent. See Com m onwealthv. Harvard , 3 56 M a ss. 4 52, 46 2, 25 3 N. E. 2 d34 6, 3 52 ( 1 9 69). Oth e r s a r e simplyir r e l e
va nt , s i nce t h ey involvedm e dica l report s crea t ed for tr ea t m e ntpur
pos e s , which would not b etes t imonia l u n der our de cision today. Se e, e.g

. , Baber v. State , 775 So. 2d 2 58, 25 8– 2 59 (F la. 200 0) ; Statev. Gar

lick , 313 M d . 209, 223 –2 25, 5 45 A. 2d 27, 3 4–3 5 (19 98).7 Cite as: 55 7 U

. S. ____ (2009)
Opinion of theCourt from Massachusetts, Connecticut , and Vir ginia). But other state courts in the same era reached the opposite conclusion. See Torre sv. State , 18 S. W. 2d 179, 180 (Tex. Crim. App. 1929); Volrichv. St a t e , No. 278, 1925 WL 2473 (Ohio App., Nov. 2, 19 25). At least this much is entirel y clear: In faithfully applying Crawf o rdto the f a cts of thi s case, we ar e not overruling 90 years of settled jurispru

dence. It i s the dissent thatseek s to o v erturn precedent by resurrec t ing Roberts a mere five years after it was rejected in Cra wford

. We turn now to the various legal arguments raised b y respondent and the dissent. A Respondent first argues that the analysts are not sub

ject to confrontation becaus e they are not “accusator y” witnesses, i nthat they do no t directly accuse petitioner of wrongdoing; rather, their testimony is inculpatory only when take n togetherwith othe r evidence linking p e ti

tioner 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 guaran tees a defendant the ri ght “to be confronted with the witnesses against him .” (Em

phasis added.) To the extentthe analysts were witnesses (a questionresolved ab ove), th ey certainly provided testi

mony aga i n s t petitioner, provin g o n e fact nece ssary for hi s conviction—that the substance he possessed was cocai n e. The contrast between the text of the Confrontation Clause and the text of the adjacent Co mpulsory Process Clause confirms th is 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 righ t to call witnesses “in his favor.” U. S. Const., A m dt. 6. Th e text of the Amendmen t contemplates two classes of witnesses—those against the8 M E LENDEZ -DIAZ v. MASSACHUS ETTS
Opinion of theCourt defendant and those in his favor. The pros ecution must produce the former; 3the defendant maycall the latter. Contrar yt orespondent’s assertion, there is not a third categoryof witnesses, helpful to the prosecution, but somehow immune from confrontation. It is often, indeed perhaps usually, the cas ethat an adverse witness’s testi m ony, taken alone, will not suffic e to convict. Yet respondent fa ils to cite a s i ngle case in which suchtestimony was admitted absent adefendant’s opportunityto c r oss-examine. 4 Unsurprisingly, since such a holding would be contrary to lon g standing case law. In Kirbyv. Unit e dSt at es , 174 U. S. 47 (1899), the Cour t considered Kirby ’ s con viction for receiving stolen property, the evidence for which consisted, in part, of the records of conviction of three in dividuals who were fo und guilty of stealing the relevant property. Id., at 53. Though this evidence proved only that th e pro p erty was stolen, and not that Kirby received it, the Cour t nevertheless ruled tha t admission of the recor d s violated Kirby ’ s righ ts under th e Confrontation Clause. Id., at 55. See also Ki ng v. Turn e r , 1 Mood. 34 7, 168 Eng. Rep. 1298 ( 1832) (confessionby one defendant to having stolen certain goods could not be us ed

——————

3 The righ t to c o nfronta t ion ma y, of cours e , b ewa ived, including b y failur eto o bje c tto the offending evidence; and States may adop t proce

dura l rules go vernin g t h e e x ercis eof s u c h obj e ct ions

. S e e infra , at 21.

4 Respondent cites our decisi on in Grayv. Maryland , 523 U. S. 18 5 (199 8). Th at c a se did in deed distin gu is hbetweeneviden c eth at is “inc r i minatingon its fac e ” a n d evidenc ethat “b ec [omes ] inc r i minating

. . . only w h enlinked with eviden ce intro d uced later attrial, ” id., at 191 (inter nal quotationmar k s omi tted). But itdidso f o rthe entir e ly different purp ose of determining wh enanontes tifyingcodefenda n t’s confes s i on, re da ct ed t oremove a ll m e nt ion of t h e defen d a n t , could b e admi tted into evidenc e with instr u c t io n for the jury not to c o nsiderthe confession as evidence agai nst the nonco n fessor. The very premise of the cas ewas that, without the limitin g instruction even adm i ss ion of a reda ct ed confes s i on cont a i ning evidence o f t h e lat t e r s o rt would have violated the defendant’s Si xth Amendment rights. See id. , at 190– 191.9 Cite as: 55 7 U

. S. ____ (2009)
Opinion of theCourt as evidence against another defen d ant accused of receiv

ing the stolen property). B Respondent and the dissent argue that th e analysts should not be subject t oconfrontation becaus e they are not “conventional” (or “ty pical” or “ord inary”) wit n esses of the sort whose ex parte testimony was most notoriously used at the trial of Sir Walter Raleigh. Post , at 15– 16; Brief fo r Respondent 28. It is true, as the Court recognized in Cra wford , that ex p a r t eexaminati o ns of the sort used a t Raleigh’s trial have “long been thought a paradigmatic confrontation violation

. ” 541 U. S., at 52. B u t the para

digmatic ca se identifies the co re of the righ t to confront a
tion, not it s limits. The rightt oconfrontation was n o t invented inresponseto the us e o f the ex parte examin a
tions in Raleigh’s Ca se , 2 How. St. Tr. 1 (1603). That use provok ed such an outcry precisely because it flouted the deeply rooted common

- law tradi ti on “of live testimony in court subject to advers arial testing.” Crawfo rd , supra , a t 43 (citing 3 W. Blacks tone, Commentaries onthe Laws o f England 37 3–374 (1768)). See also Crawfor d , supra , a t 43–47. In any case, the purported distinc t ions respondent and the dissent identify b e tween this case andSir Walte r Raleigh’s “conventional” accusers do not survive scrutiny. The dissent first contends that a “conventional witness recalls events observed in the p a st, while an analyst’s report contains near-contemporaneous observations of the test.” Post , at 16–17. It is doub tful that the analyst’s reports in this case c o uld becharacterizedas reporti ng “near-contemporaneous observations”; the affidavits we re completed almost a week after t h e tests were performed. See App. to Pet. for Cert. 24a–29a (the tests were per

formed on November 28, 2001, a n d the affidavits swornon December 4 , 2001). Bu t rega rdless, the dissent misunder

-10 M E LENDEZ -DIAZ v. MASSACHUS ETTS
Opinion of theCourt stands the role that “n ear-contemporaneity” has played in our case law. The diss ent notes that that fa ct or was gi ven “substantial weight” in Davi s, post, at 17, but in fact tha t decision disproves the dissent’s position. The r e the Court considered the admissibility of statements made to police officers responding to a repo rt of a domestic disturbance. By the time officers arrived the ass ault had en ded, but the victim’s sta t ements—written and oral—were sufficiently close in time to the alleged assault that t h e trial co urt admitted h e r affidavit as a “present sense impression.” Davis , 547 U. S. , at 82 0 (internal quotation marks omit

ted). Tho u gh the witness’s statements in Davi swere “near-contemporaneous” to the events she reported, we nevertheles s held that they could notbe admitted absent an opportunity to confront the wit n ess. Id., a t830. A second reason the dissent contends that th e analysts are not “co nventional witnesses” (and thus n o t subject to confrontation) is that they “observe[d] neither the crime nor any hu man action related to it.” Post, at 17. The dissent provides no au thority 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 exampl e, is a police officer’s investigative report de

scribing the crime scen e admissible absent an opportunity to examine the officer? The dissent’s novel exception from coverage of the Confrontation Clause would exempt al l expert witnesses—a hardly “un c onventional” class of witnesses. A thir d res p ect in whi c h the diss ent asserts that the analysts are not “con v entional” witnesses and thus n o t subject to confrontation is that th eir statements were no t provided in response to interrogation. Ibid

. See also Brief for Respondent 29. As we have explained, “[t]he Framers were no more willingto exempt from cross-examination volunteered testimony or answers to open-end ed question s11 Cite as: 55 7 U

. S. ____ (2009)
Opinion of theCourt than they were to exe m pt answe rs to detail ed interroga

tion.” Davi s , supra , at 822–823, n. 1. Respondent and th e dissent cite no authority, and we are aware o f none, hold

ing that a person who volunteers his testimony is any less a “ ‘witness against’ th e defendant,” Brief for Respondent 26, than one who is responding to interrogati on. In any event, the analysts’ affidavits in this case we re presented in response to a police request. See Mass. Gen. Laws, ch. 111, §§12– 13. If ana ffidavit submitted in response to a police offic e r’s request to “w rite down wh at happened” suffices to trigger the S i xth Amend m ent’s prot ection (as it apparently does, see Da v i s , 547 U. S., at 819–820; id. , at 840, n. 5 (T HOMAS , J., concurring in judgment in part an d dissenting in part)), th en the analysts’ testim ony should be subject to confrontation as well. C Respondent claims that there is a difference, for Con

frontation Clause purposes, between testimo n y recounting historical events, whic h is “prone to distortion or manipu

lation,” and the testimony at is sue here, which is the “resul[t] of neutral, scientific testing.” Brief for Respon

dent 29. Relatedly, respondent and the dissent argue tha t confrontation of forensic analysts would be of little value because “one would not reas onably expect a laboratory professional .

. . to feel quite differ e ntly about the results of his scien t ific test by having to look at the defendant. ” Id., at 31 (internal quotation marks omitted); see post , a t 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 trustwo rthi n ess” was admissibl e notwithstanding the Confrontation Clause. Id., at 66. What we said in Craw

fordin response to that argument remains true: “To be sure, the Clause’ s ultima te goal is to ensure re

-12 M E LENDEZ -DIAZ v. MASSACHUS ETTS
Opinion of theCourt liability of evidence, but it is a pro c edural rather than a substantive guarantee. Itcom m ands, not that evi

dence be reliable, but that reliability be asses s ed in a particular manner: by testing in the crucible of cross

examination. .

. . Dispensing with confrontation be

cause testimony is obviously reliable is ak in to dis

pensing with jury trialbecause a defendant is obvi

ously guilty. This is not what the Sixth Ame n dment prescribes.” 541 U. S., at 61–62. Respondent and the dissent may be right that there are other wa ys—and in so me cases better wa ys —to challenge or verify th e results of a forensic test. 5But t h e Constitu

tion guaran tees one way: confron t ation. We do not have license to s u spend the Confrontation Clause when a pref

erable trial strategy is available. Nor is it e vident thatwhatresp ondent calls “neutra l scientific testing” is as neutral or a s reliabl e as respondent suggests. Forensic evidence is not uniquely immune from the risk of manipulation. Accor d ing to a recent stud y conducted under the auspices of the National Academy o f Sciences, “[ t]he majority of [labor a tories producing fore n
sic evidence] are administered by law enforcement agen

cies, such as police departments, where th e laborator y administrat o r reports t othe head of the agency.” Nationa l Research Council of the National Academies, Strengthe n
ing Forensi cScience in the United States: A Path Forward 6–1 (Prepu blication Copy Feb. 200 9) (hereinafter Nationa l Academy Report). An d “[b]ecaus e forensic scientists often are driven in their wor kby a needto answer a particular question related to th e issues of a par t icular case, th ey sometimes face pressure to sacrifi ce appropri ate method

ology for the sak eof expediency.” Id. , at S–17. A forensic

——————

5 Th oughsu r e lyn o t alway s
. Some for e n s i can aly s es, su c has au top

sies an d br eat h aly z ertests, c a n n o t be repeated, and the specimens use d for other analyses have often been lost or degraded.13 Cite as: 55 7 U

. S. ____ (2009)
Opinion of theCourt analyst responding to a request from a law enforcemen t official may feel pressu re—or have an incentive—to alter the evidence in a mann er favorable to the prosecution. Confrontation is one m e ans of ass u ring accu rate forensic analysis. While it is true, as the dissent n o tes, that a n honest anal yst will not alter his testimony when forced to confront th e defendan t, post, at 10, the sa me cannot be said of the fraudulent analyst. See Brief for National Innocence Network as Amicus Curiae15–1 7 (discussing cases of documented “drylabbi ng” where forensic analysts report resu lts of tests that were never perf ormed); Na

tional Academy Repo rt 1–8 to 1–10 (discussing docu

mented cases of fraud and error i nvolving th e use of for e n
sic evidence). Lik e the eyewitness who has fabricated his account to the police, the analyst who provides false re

sults may, under oath in open co urt, re consider his false testimony. See Coyv. Iowa , 487 U. S. 1012, 1019 (1988). And, of co urse, the prospect of confrontation will deter fraudulent analysis in the first place. Confrontation is design ed to weed out not only the fraudulent analyst, but the in competent one aswell. Serious def i ciencies have beenfou n d in theforensic evi

dence used in crimina l trials. One commentator assert s that “[ t]he legal community now concedes, with va ryi n g degrees of urgency, that ou r system produce s erroneous convictions based on discredi te d forensics.” Metz ge r, Cheating the Constitution, 59 Vand. L. Rev. 475, 491 (2006). One study of cases inwhich exonerating evidence resulted in the overturning of criminal convictions con

cluded thatinvalid for e nsic testimony contributed to the convictions in 60% of t h e cases. Garret t& Neufeld, Inva

lid Forensic Science Te stimony and Wrongful Convictions, 95 Va. L. Rev. 1, 14 (2009). An d the National Academy Report concluded: “The foren s i c scienc es y stem, enco mpassin g

both re

-14M E LENDEZ -DIAZ v. MASSACHUS ETTS
Opinion of theCourt

sear c h andpractice, has seriousproblems that c a n only be address ed by a national commitment to over

haul thecu rren t s t ruc t ure th at su pportsth e forensic scien ce com m unity in this country .” National Acad

emy Report P–1 (emphasis in original). 6 Like expert witnesses generally, an analyst’s lack o f proper training or deficiency in judgment ma y be disclos e d in cross-examination. This case is illustrative. The affidavits submitted by the analysts contained on ly the bare-bones statement that “[t]he substance was found to contain: Cocain e.” App. to Pet. for Cert. 24a, 26a, 28a. At the time of trial, petitioner did not know what tests the anal ysts performed, wheth e r those tests were routine, andwhether interpreting their results required the exercise of judgment or the use of skills that the analysts may not ha ve possessed. While we still do not know the precise tests used by the analysts, we are told that the laboratories use “methodology recom

mended by the Scientific Working Group for the Analysis of Seized Drugs,” App. to Brief for Petitioner 1a–2a. At least some of that m e thodology requires the exercise of judgment a n d presents a risk of e rror tha tm i ght be ex

plored on cross-examination. See 2 P. Giannelli & E

. Imwinkelried, Scientific Evidence §23.03[c], pp. 532–53 3, ch. 23A, p. 607 (4th ed. 2007) (identifying four “critica l errors” tha tanalysts may com m it in interpreting the

——————

6 Contrary to the dissent’s suggestion, post, at 23, we do not “rel[y] in such great measure” on the deficien cies of crime-lab analysts shown by this report to resolve the constitution al question presented in this case. The analysts who swore the affidavits provided testimony against Melendez-Diaz, and they are theref ore 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.15 Cite as: 55 7 U

. S. ____ (2009)
Opinion of theCourt results of the commonly used gas chromatogr aphy/mass spectrometry analysis); Shellow, The Application of Daubertto the Identification of Drugs, 2 Shepard’s Ex per t & Scientific Evidence Quarterly 593, 600 ( 1995) (noting that while spectrometer s may be equipped withcomputer

ized matching systems, “forensic analysts in crime labora

tories typically do not utilize this feature of the instru

ment, but rely exclusively on their subjective judgment”). The same i s true of many of the other types of forensic evidence commonly used in criminal prosecutions

. “[T]here is wide variability across forensic s c ience disci

plines with regard to techni ques, methodologies, reliabi l

ity, t y pes a n d number s of potential errors, r e search, gen

eral acceptability, and publis hed material.” National Academy Report S–5. See also id., at 5–9, 5– 12, 5–17, 5– 21 (discussing problems of subjectivity, bias, and unreli

ability of common forensic test s s u ch as latent fingerpri n t analysis, p a ttern/impressionanalysis, and toolmark and firearms analysis). Contrary to respondent’s and the dissent’s suggestion, th ere is little reason to believe that confrontation will be useless in t e sting analysts’ honesty, proficiency, and methodology—the features that are co m
monly the focus in the cross-examination of experts. D Respondent argues th at the an alysts’ affi davits are admissible without con f rontation b e cause they are “a kin to the types o f official and business records a d missible at common law.” B r ief for Respondent 35. But the affidavit s do not qualify as tra ditional o fficial or business records, and even if they did, their authors would b esubject to confrontation nonetheless. Documents kept in the regular course of bu siness may ordinarily be admitted at trial despite their hearsay status. Se e Fed. Rule Evid. 803(6). But th at is not the case if the regularly conducted business activityis th e16M E LENDEZ -DIAZ v. MASSACHUS ETTS
Opinion of theCourt production of evidence for use attrial. Ou r decision in Palmerv. Hoffman , 3 18 U. S. 109 (1943), made that dis

tinction clear. There we held that an accident report provided by an employee of a railroad company did n o t qualify as abusines s r e cord because, althoughkept in the regular course of the r a ilroad’s operations, itwas “calcu

lated for us e ess e ntiall y in the court, not in the business.” Id. , at 114. 7 The analysts’ certificates—like police reports generated b ylaw enfor c ement officials—do not qualify a s business orpublic records for pre c isely the same reason. See Rule 8 03(8) (defining public records as “excluding, however, in criminal cases matters observed by police officers and other law en forcement personnel”). Respondent seeks to re but this limitation by n o ting tha t at common law the results of acoroner’s inquest were admissible without an opportunity for confrontation. But as we have previously noted, whatever the status of coro

ner’s report s at common law in England, t h ey were n o t accorded a n y special status in American practice. See Cra wford , 541 U. S., at 47, n. 2; Gilesv. California , 5 54 U. S. ___, ___ (2008) (slip op., at 20) (B REYE R , J., dissent

ing); Evide n ce—Offici al Reco rds

— Coroner’s Inquest, 65 U. Pa. L. Rev. 290 (1917). The dissentidentifies a single cla ss of evidence which, though pre p ared for u s e at trial, was traditi onally admis

sible: aclerk’s certificate authenticating anofficial re

cord—or a copy thereof—for use a s evidence. See post, at 19. But a clerk’s auth o rity in that regard was narrowly circumscrib e d. He was permi tted “to certifyto the cor

rectness of a copy of arecord kept in his office,” but ha d

——————

7 The early co mmon-law cases likewise in volve re cords prepared for the admini str a tion of an en tity ’ s affa irs, and not for use in lit igatio n. See, e.g. , King v. Rho des , 1 Leac h24, 168En g
. Rep. 115 (17 42) (ad m i t

tinginto evid enc e ship’s muster-book); King v. Martin , 2 Camp. 10 0 , 101, 1 70 En g
. Rep. 10 94, 1 095 ( 1 8 09) (v e s tr ybook); King v. Aick le s , 1 Leac h390, 39 1–3 92, 16 8 En g
. Rep. 297, 298 (178 5) (pr i so nlogb ook).17 Cite as: 55 7 U

. S. ____ (2009)
Opinion of theCourt “no authority to furni s h, as evidence for th e trial of a lawsuit, his interpretat i on of what the recordcontains or shows, or to certify to its substance or effect.” Sta t ev. Wilson , 141 La. 404, 4 09, 75 So. 95, 97 (191 7). See als o Sta t ev. Ch ampion , 116 N. C. 987, 21 S. E. 7 00, 700–70 1 (1895); 5 J. Wigmore, Evidence §1678 (3d ed. 1940). The dissent suggests that the fact th at this exc e ption was

“ ‘nar rowly circumscrib e d’ ” mak e s no difference. See post, at 20. To t h e contrary , it makes all the difference in the world. It s h ows that even the l i n e of cas e s establish i ng the one na rrow exception the dissent has been ab le to identify si multaneous l y vindicates the gener a l rule appli

cable to th e present c a se. A cler k could b y affidavit au
thenti ca te or provide a copy of an otherwise admissibl e record, but could not d owhat the analysts did here: create a record for the sole pu rpose of providing evidence against a defendant. 8 Far more p r obative here are those cases in which th e prosecution sought to admit into evidence a clerk’s certi fi

cate attesti n g to the fa ct tha tthe clerk had s e arched for a particular r e levant record and fai l ed to find it. Like th e testimony of the analysts in this case, the clerk’s sta t e
ment would serve as subst antive evidence against the defendant whose guilt depended on the nonexistence of the record for which the clerk sea rched. Although the clerk’s certificate would qualify as an o fficial record under re
spondent’s definition—i t was p r epared by a public officer in the regu lar course of his official duties—and although

——————

8 The dissent’s reliance on our decision in Dowde l l v. United Stat es , 221 U. S. 32 5 (191 1), see po st , at 20 (op i n i onof K ENNE DY , J.), is s i mi

larly mispl a ced. As the opinion stated in Dowdell

— a n da s t h i s C o u r t noted in Davisv. Washin gto n , 547 U. S. 8 13, 8 2 5 (20 06) —th eju dg e an d clerk who made the stat e m ents at issue in Dowdell wer enot witnes s e s for purposes of the Confro ntation Cl ause because their state m ents
conce r ned o n lythe condu c t of defenda n t s ’ prior tria l, not a n yfa cts
r e g a r d in g defen d an ts’gu ilt orin n o c e nc e. 2 21 U. S., at 33 0–3 31.18M E LENDEZ -DIAZ v. MASSACHUS ETTS
Opinion of theCourt the clerk was certainlynot a “con v entional witness” under the dissent’s approach, the clerkwas nonetheless subject to confrontation. See Peoplev. Bromw i c h , 2 00 N. Y. 385, 388–389, 93 N. E. 933, 934 (1911); Peoplev. Goodrode , 13 2 Mich. 542, 547, 94 N. W. 14, 16 ( 1903); Wigmore, supra , §1678. 9 Respondent also misu nderstands the relationship be

tween the b u siness-and -official-records hearsay exception s and the Confrontation Clause. As we sta t ed in Crawfor d: “Most of the hearsay exceptions covered statements that by their na ture were not te stimonial—for example, busi

ness records or statem ents in furt herance of a conspirac y
. ” 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 f o r the adm i nistration of an entity’s affairs and not for the purpose of establishin gor proving some fact a ttrial—they are not testimonial. Whether or not they qualify as b u siness or official records, the ana

lysts’ sta t ements here—preparedspecifically for use at petitioner’s trial—wer e testimony against petitioner, and the analysts were subject to confrontation under the Si xth Amendment. E Respondent asserts th at we shou ld find no Confronta

-

——————

9 An ea rlier line of 19 t hcentury s t a t e-cour tca s e s als o support s t h e notion that fo r e nsicanaly s t s ’c e r t ific ates wer enot admitted into evi

den c e as publ icorbu sin e ss r e c o r d s. See Commonwe a lthv. Waite , 93 M a ss. 26 4, 26 6 (18 65); Shiversv. Newton , 45 N. J. L. 46 9, 476(Su p . C t

. 188 3); Statev. Campbell , 64N. H. 402, 40 3, 13 A. 5 85, 586 ( 188 8). I n all three cases, defendants —who we re p r osecuted for selling adulte r
ated milk—objected to the admission of th e state chemists’ certificate s of an aly s is. Inall th r ee c a ses, th e objection was defeated because the
c h emist tes t ifi e d liv e at tr ial

. That the prosec ution c a me for w ar d with liv e w i tn esses inall th r e e cases su g g e sts doub t as to th e admis s ibi lit y of the ce rtificates without oppo rtunity forc r os s
- exa m ina t ion.19 Cite as: 55 7 U

. S. ____ (2009)
Opinion of theCourt tion Clause violation in this case because petitioner had the ability to subpoen a the anal ysts. But that power— whether pursuant to state law or the Compuls o ry Process Clause—is no substitute for the right of confrontation. Unlike the Confrontation Clause, those provisions are o f no use to the defendant when the witness is unavailable or simply refuses to appear. See, e.g. , Davi s , 547 U. S., at 820 (“[The witness] was subpoenaed, but sh e did not a p
pear at .

. . trial”). Converting the prosecution’s duty under the Confrontation Clause into the defendant’s pri vi

lege understate law or the Com p ulsory Process Clause shifts the consequences of advers e-witness no-shows from the State t othe accused. More fundamentally, the Con

frontation Clause imp o ses a burd e n on the p r osecution to present its witnesses, not on the defendant to bring those adverse wit n esses into court. Its value to the defendant is not replaced by a sys t em in which the prosecution pre

sents its evidence via ex p a r t eaffidavits and waits for the defendant to subpoena the affiants if he choos es. F Finally, respondent asks us to relax the requirements of the Confrontation Clause to accommodate the “ ‘necessities of trial and the advers ary process.’ ” Brief for Respondent 59. It is not clear whence we would derive the authority t o do so. The Confrontation Clause may make the prosecu

tion of criminals m o re burdensome, but th at is equa lly true of the right to tri al by jury and the privilege against self-incrimination. The Confrontation Clause—like those other constitutional provisions—isbinding, and we may not disregard it at our convenience. We also d o ubt the accuracy of respondent’s and the dissent’s dire predictio n s. The dis s ent, respondent, and its amicihighl i ght the substantial total number of controlled

substance analyses performed by s t ate and fe deral labora

tories in recent years. But only some of those tests are20 M E LENDEZ -DIAZ v. MASSACHUS ETTS
Opinion of theCourt implicated in prosecutions, and only a small fraction of those cases actually proceed to trial. See Brief for Law Professors as Amici Curiae7–8 (nearly 95% of convictions in state and federal courts are obtained via guilty plea). 10 Perhaps the best indi cation that the sky will n o t fall after today ’ s decision is that it h a s not done so already. Many Sta t es have already adopte d the constitutional rule we announce today, 11 wh ile many others permit the defen

dant to as sert (or forfeit by silence) his Confrontation Clause right after receiving notice of the prosecution’s intent to u s e a foren s ic analyst’s report, id. , at 13–15 (cataloging such statelaws). D e spite thes e widespread practices, t h ere is no evidence that the crim i nal justice system has ground to ahalt in the States tha t , one way or another, empower a defendant to insist uponthe analyst’s appearance at trial. Indeed, in Massachusetts itself, a defendant may subpoena the an alyst to appear at tri al, see Brief fo r Respondent 57, and yet there is no indicati on

——————

10 The dissent provides some back-o f-the-envelope ca lc ula t ions re
garding the number of court appe aran ces t h a twill resultfromt o da y ’ s ruling. Post , at 13 –14. T h ose n u m ber s r e lyon v a r i ou s u n f oun d ed assump tions: that the prosecution will place in to evidence a drug analysis certif icate in every case; that the defendant will never stipu

late to the nat u r eof the c o ntr o lled subs ta nc e; that ev en w h e r e n osuch stipula t ion is made, every defendant will object to t h e evidence o r otherwise demand the app e arance of the analy s t. These assum p tion s are wildly unrealis tic, and, a s disc usse d be low, the figure s they produce do notreflectwha tha s in factoccu rred in t h os e j u ris d ictions t h a thave alr e adyadopt e d th e r u le we an n o u n c etoday

.

11 Statev. J o hns on , 982 So. 2d 6 72, 6 80– 681 (F la. 2 0 0 8); HinojosMen dozav. People , 169 P. 3d 662, 66 6–6 67 (Colo. 200 7); Statev. Birchfield , 342 Or e. 624, 631– 63 2, 157 P

. 3d 216, 220 (200 7); Statev. Marc h , 216 S. W. 3d 663, 66 6–6 67 (M o. 2007); Thomasv. Un it edSt at es , 914 A. 2d 1, 1 2–1 3 (D. C. 2 006); Statev. Caulfield , 722 N. W. 2d 304, 310 (M in n
. 20 06); Las Vegasv. Walsh , 121 Nev

. 899, 9 0 4–90 6, 12 4 P. 3 d 203, 2 07– 20 8 (200 5); Peoplev. McClanah a n , 191 Ill. 2d127, 13 3– 134 , 729 N. E. 2d 4 70, 4 7 4–47 5 (2 000); Millerv. State , 266 Ga. 850, 85 4–8 55 , 472 S. E. 2d 74, 78–7 9 (1 9 96); Barnettev. State , 481 So. 2d 7 88, 7 9 2 (M iss. 198 5).21 Cite as: 55 7 U

. S. ____ (2009)
Opinion of theCourt that obstru ctionist defendants are abusing the privilege. The dissent finds this e vidence “farless reassuring tha n promised.” Post , at 28. But its doubts rest on two flawe d premises. First, the dissent believes that those state statutes “re quiring the defendant to give ea rly notice of his intent to confront the analys t,” are “burden-shiftin g statutes [th a t] may be invalidated by the Court’s reason
ing.” Post, at 22, 28–2 9. That is not so. In their simplest form, notice-and-demand statutes require the prosecution to provide notice to the defend antof its intent to use a n analyst’s report as evidence at trial, after w h ich the de

fendant is given a period of time inwhich he may object to the admission of the evidence absent the analyst’s appear

ance live a ttrial. See, e.g, Ga. Code Ann. §35–3–154. 1 (2006); Tex. Code Crim . Proc. Ann., Art. 38.41, §4 (Verno n 2005); Ohio Rev. Co de Ann. §2925.51(C) (West 2006). Contrar yto the dissent’s percepti o n, these statutes shift no burden whatever. The defendant always has the bur

den of raising his Confrontation Clause objection; notice

and-demand statutes simply govern the timewithin whic h he must do so. States are free to adopt procedural rules governing objections. See Wainwrightv. Sykes , 433 U. S. 72, 86–87 (1977). It is common to require a defendant to exercise his rights und er th e Compulsory Pro c ess Clause in advance of trial, announcing his intent to present cer

tain witnesses. See F e d. Rules Crim. Proc. 12.1(a), (e), 16(b)(1)(C); Comment: Alibi Notic eRules: The Preclusion Sanction as ProceduralDefault, 5 1 U. Chi. L. Rev. 25 4, 254–255, 2 81–285 (1984) (discussing and cataloguing State notice-of-alibi ru les); Taylor v. Illinois , 484 U. S. 400, 411 (1988); Williamsv. Flor ida , 399 U. S. 78, 81–8 2 (1970). There is no conceivable reason why he cannot similarly be compelled to exercise his Confrontation Clause rights before trial. See Hinojos-Mendozav. People , 169 P. 3d 662, 670 (Colo. 2007) (discussing and approvin g Colorado’s notice-and-demand pr o vision). Today’s decision22 M E LENDEZ -DIAZ v. MASSACHUS ETTS
Opinion of theCourt will not dis r upt criminal prosecutions inthe many large States who s e practice is already in accord wi th the Con

frontation Clause. 12 Second, the dissent notes that sev e ral of the state-court cases that have already adopted this rule did so pursuan t to our decision in Crawford , and not “independently .

. . as a matter of state law.” Post, at 2 8

. That ma y be so. Bu t in assessing the likely practical effects of today’s ruling, it is irrelevant whythose courts ado p ted this ru le; it matters only that they did so. It is true that many o f these deci

sions are recent, but if the dissent’s dire predictions were accurate, a n d given th e large number of drug prosecuti o ns at the state level, one would have expected i mmediate and dramatic re sults. The absence of s u ch evidence is tell ing. But it is not surprising. Defense attorneys and their clients will often stipulate tothe nature of the substance in the ordinary dru g case. It isunlikely that defense counsel wil linsi st on live testimony whose effect will b e merely to highlight rather than ca st doubt upon the foren

sic analysis

. Nor will defense att o rneys want to antago

nize the judge or jur yby wastingtheir time with the ap

pearance of a witness whose tes t imony defense couns el does not intend to rebut in any fas h ion. 13 The amic usbrie f

——————

12 As th e di ssen tn o tes, post , at 27, som estate statutes, “requir[e] defense couns el to subpoen a the analyst, to show good cause for de

mandingthe analy s t’ s pr ese n c e , orev ento affir munder oath an intent to c r o ss-ex ami n e the analy s t.” We hav e no oc c a sion to dayto pas s o n the constituti onality of every vari ety of statute commonly give n the notice-and-demand label. I tsuffices to say that what w ehave referre d to as the “simplest form [of] notice-a nd-dema n d sta t utes,” supra, at 21 , is c o n s titu tio n al; th at su c hpr ovision s ar e inplac e ina n u m ber of States; and that in those States, an d i noth e rStates th at r e qu ir e confro nta t ion without notice-a nd-dema n d , there is no indication that the dire co nsequences predicted bythe diss ent hav emater i alized.

13 Con t r a r yto th e dissen t ’ s su g g e stion , po st , at 24–25, we do n o t c a st aspersions on trialjudges, who wetrust will notbe antagonized b y g ood-faithr e qu ests foran al y s ts’appear an c eat tr ial. Nordo we ex pec t23 Cite as: 55 7 U

. S. ____ (2009)
Opinion of theCourt filed by District Attor n eys in Support of th e Common

wealth in the Massac husetts Supreme Court case upon which the Appeals Court here relied said that “it is almost always the case that [ analysts’ certificates] are admitted without obj e ction. Generally, defendants do not object t o the admission of drug certificates most li kely because there is no benefit to a defendant from suchtestimony. ” Brief for District Atto rneys in S u pport of t h e Common

wealth in No. SJC–09 320 (Mass.), p. 7 (footnote omitted). Given thes e strategic considerations, and in light of th e experience in those States t hat al ready provi d e the sam e or similar protections to defendants, there is little reason to believe that our decision today will commence the pa

rade of horribles respondent and th e dissent predict.

* * * This case involves little more than the application of our holding in Cra wfordv. Washin gt on , 541 U. S. 36. The Sixth Amendment do es not permit the prosecution to prove its case via ex parteout-of-court affida vits, and the admission of such evidence against Melend ez-Diaz was
error. 14We th erefore re verse the ju dgment of the Appeals Court of Massachusetts and remand the case for further proceedings not inconsi s tent with this opinion

. It is so orde red.

—————— defense attorn eys to refrain from zealou s representation o f their clients. We sim p lydo not ex pec tdefense attor n ey s to be liev etha ttheirc lients’ int e res t s (or t h eir ow n) a r e furt heredb yobj e ct ions t oana l ys t s ’ report s whos e con c lus i ons couns el h ave no intenti o n of cha llengi n g.

14 We of course e x press no view as to whether the error was harmless. The M a ssac h usetts Cour t of Appea l s di d not r e ac h t h at ques tion and we decline to address i tin the first instan ce. Cf. Coyv. Iowa , 487 U. S. 101 2, 102 1– 1 022 (1 98 8). Inc o nn ec tionwithth at deter m in ation , howeve r, we dis a gree with the dissent’s contention, post , at 25, th at “on l yanan aly s t’ s test imon ysu ffic e s to pr ov e [the] fa c t” that “the substance is cocaine.” Today’s opin ion, while insisting upon retention of the confro ntation requirement, in no way alters the type of evidence (includingcir c u ms ta ntia l evidence) s u ffic i ent to sustain ac o nvic tion._________________

_________________ 1 Cite as: 55 7 U

. S. ____ (2009)

T HOMAS , J

. , co ncu rrin g 

## SUPREME CO URT O FTHE UNI TED STATES

No. 07–5 91

LUIS E. M E LENDEZ- D IAZ, PETI TIONER v. MASS AC HUSE TTS
ON WRIT OF CERTIORARI TO THE APPEALS COURTOF MASSACH US ETTS [Ju n e25, 2009 ] J USTICE T HOMA S , concurring. I write sep a rately to note that I continue to adhere to my positionthat “the Confrontation Clause is implicated by extrajudicial statements on ly insofar as they are con

tained in formalized testimonial m a terials, su ch as affida

vits, depositions, prior testimony, or confessions.” Whi t ev. Illinois , 50 2 U. S. 346, 365 (1992 ) (opinionconcurring in part and concurring injudgment); see als o Gilesv. Cali

fornia , 554 U. S. ___, ___ (2008) (s lip op., at 1) (concurring opinion) (characterizin gstatements within the scope of the Confrontation Clause to include those that are “suffi

ciently for m al to res e mble the Marian e x aminations” because they were Mirandized or custodial or “accomp a
nied by [a] similar indicia of formality” (intern a l quotation marks omit ted)); Da visv. Washin gton , 547 U. S. 813, 83 6 (2006) (opinion concurring in ju dgment in part and dis

senting in part) (reite rating that the Clause encompasses extrajudicia lstatements contained in the types of formal

ized materials listed in Whi t e , su pra , at 365

. I join th e Court’s opinion in this case bec ause the d o cuments at issue in this case “are quite plainly affidavits, ” ante , a t4. As such, t h ey “fall within the c o re class of testimonial statements” governed by the Confrontation Clause. Ibid. (internal quotation marks omitted)._________________

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K ENNEDY , J., dis s e nting 

## SUPREME CO URT O FTHE UNI TED STATES

No. 07–5 91

LUIS E. M E LENDEZ- D IAZ, PETI TIONER v. MASS AC HUSE TTS

ON WRIT OF CERTIORARI TO THE APPEALS COURTOF MASSACH US ETTS [Ju n e25, 2009 ] J USTICE K ENNEDY , with whom T HE C HIEF J USTIC E , J USTICE B RE YE R , and J USTICE ALI TO join, dissenting. The Court sweeps away an accept ed rule governing th e admission of scientific eviden ce. Until today, scientific analysis could be introduced in to evidence without tes t imony from the “analys t” who produced it. This rule h a s been established for at least 90 yea r s. It extends across a t least 35 Sta t es and six Federal Courts of Appeals. Yet the Court undoes it bas ed on two recent opinions that say nothing about forensic analysts: Crawfor d v. Washin gton , 541 U. S. 36 (2004), and Davi s v. Washin gto n , 547 U. S. 813 (2006). It is remarkable that the Court so confidently disregard s a century o f jurisprudence. We learn now that we have misinterpreted the Confrontation Clause—hardly an
arcane or s e ldom-usedprovision of the Cons titution—for the first 218 years of its existence. The imm e diate systemic conce r n is tha tt h e Court m a kes no att e mpt to a c
k n owledge the real di fferenc es between laboratory an alysts who perform scientific tests and other, more conventional witnesses—“wit nesses” being the word the2 M E LENDEZ -DIAZ v. MASSACHUS ETTS

K ENNEDY , J., dis s e nting Framers used in the Confrontation Clause. Cra wford an d Da vis dealt withordinary witnesses— women who had seen, and in two cases been the victim of, the crime i nquestion. Those cas e s stand forthe propos ition that formal statements made by a conventional witness—one who has pe rsonal k n owledge of some aspect of the defendant’s guilt—may no t be admitted without t h e witness appearing at trial to me et the accused face to face. But Crawfor d and Davisdo not say—indeed, could not have said, because the facts were not before the Cour t— that anyon e who makes a testimonial statement is a witness for purposes of the Confrontation Clause , even when that person has, in fact, witnessed nothing t ogive them personal k n owledge of the defenda n t’s guilt. Because Crawford an d Dav i s co ncerned ty pical wit

nesses, the Court should have done the sensib le thing and limited its holding to witnesses a s so def i ned. Indeed, as J USTICE T HOMASwarned in his opinion i n Davis , the Court’s app r oach 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 Stat es, as a matter of constitutional law, an as-yet-undefined set of rules governing wh a t kinds of evidence may be admitted without in-court test imony. Indeed, under today’s opi n ion the States bear an even more onerous burden than th ey did before Cra wford. Then, the S t ates at lea s t had the guidance of the hearsa y rule and could rest assured that “ w here the evidence f[ell]within a firmly rooted hearsay exception,” the Confrontation Clause did not bar its admission. Ohiov. Roberts , 4 48 U. S. 56, 66(1980) (overruled by Crawford). Now, withou t 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, Cra w
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K ENNEDY , J., dis s e nting ford v. Washington : A Critique, 57 Stan. L. Rev. 569, 586

– 593 (2004) (discussin gunanswered questions regardin g 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 potent ial to disrupt criminal procedures that already give ample protections against the misus e of scientific evidence. For these reasons, as more fully explained below, the Court’s op inion elicits m yrespectful dissent. I A 1 The Court says that, before the results of a scientific test may b eintroduced into evid ence, the defendant has the right to confront the “analyst.” Ante , at 4–5. One must assume that thi s term, tho u gh it a p pears nowher e in the Confrontation Clause, nevertheless has s o me constitutional subs tance that now must be elab orated in future
cases. Th ere is n o accepted definition of analyst, and there is no established precedent to define tha tterm. Consider how many people play a role in a routine test for the pre s ence of ill egal drugs. One pers on prepares a sample of the drug, pl aces it in a testing machine, and retrieves the machine’sprintout—often, a graph showing the frequen c ies of radiation absorbed by the sample or th e masses of the sample’s molecularfragments. See 2 P. Giannelli & E. Imwi nkelried, Scientific Evidence §23. 03 (4th ed. 2007) (describing common methods of identifying drugs, incl uding infrared spectrophotometry, nu clear magnetic re sonance, gas chromatograph y , and mass spectrometry). A second p e rson interprets the gr aph the m a
chine prints out—perhaps by comparing t hat printou t with published, standardized graphs of known drugs.4 M E LENDEZ -DIAZ v. MASSACHUS ETTS

K ENNEDY , J., dis s e nting Ibid

. M e an while, a third person—perhaps an independent contractor

—has calibrated the machine and, having d o ne so, has certified that th e machine is in good working orde r. Finally, a f o urth person—perhaps the laboratory’s direc

tor—certifie s that his subord inates 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 an

nounces today. If all are witnesses who mu st appear for in-court con f rontation, then the Co urt 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 th reatens to disru p t if not en d many prose c utions wh ere guilt is clear but a newly found formalism now holds s w ay. See Part I–C, inf ra
. It is possible to read the Co urt’s opinion, however, to say that all four must testify. Each on e has contributed to the test’s result and has, at least in some respects, made a representation about th e test. Pe rson One represents that a pure sam p le, properly dra w n, e n tered the machine and produced aparticularprintout. Person T w o represents that the printout corresponds to a known drug. PersonThree represents that the machine was properly calibrated at the time. P e rson Four represents that all the others performed their jobs in accord withestablished procedures. And each of the four has po wer to introduce error. A laboratory technician might adulterate the sample. The independent contrac t ormight botc h the machine’s calibration. And so forth. The reasons for these errors may range from animus ag ainst the particular suspect or all criminal suspects to unintentional oversight; from gross negligence to good-faith mistak e. It is no surprise that a plausible case can be made for deeming each person in th e testing process an analyst under the Court’s opinion. Consider the independent contrac t or who has calibrated5 Cite as: 55 7 U

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K ENNEDY , J., dis s e nting the testing machine. Atleast in a routine case, where th e machine’s result appears unmistakable, that result’s
accurac yd e pends entirely on the machine’s calibration. The calibration, in turn, can be pr oved only by the contra ctor’s certific a tion 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, offer e d for the truth of the matter asserted, and made for the purpose o f later prosecution. See ante , at 3 – 5. It is notclear, unde rthe Cour t’s ruling, why the inde

pendent contractor is not also an analyst. Consider th e person who interprets the mach ine’s printout. His orher interpretationmay call for the exercise of professionaljudgment in close cases. See Giannelli & Imwink elried, supra
. If we assume no person deliberat ely introduces error, this interpretive step is th e 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 muc h

. See ante , at 12–14. And we m u st yet consider the laboratory di rector wh o certifies the ultimate re sults. The director is a r guably the most effective person to conf ront for revealing any ambigu

ity in findings, variations in procedures, or problems i n the office, a s he or she is most fam iliar with the standard procedures, the office’svariations, and proble ms in prior cases or with particul a r analysts. The prosecution may seekto introduce his or her certification into evidence. The Court implies tha tonly those statemen ts that are actually entered into evidence require confrontation. See ante , at 4–5

. This could mean that the director is also a n analyst, even if h i s or her certification relies upon orrestates work performed by subordinates. The Court offers no principles or historical precedent to determine which of th ese persons is the analyst. All co ntribute to t h e test result. Andeac his equally remote from the scene, has no personal stak e in the outcome, does no t6 M E LENDEZ -DIAZ v. MASSACHUS ETTS

K ENNEDY , J., dis s e nting even k n ow the accuse d, and is concerned only with the performanc e of his or her role in conducting th e test. It could be argued tha tthe only a nalyst who must testify is the person who signed the certificate. Under this view, a laboratory could have one employeesign certificates and a ppear in court, which would spare all the other analysts this burden. But the Co urt has already rejected this arrang ement. The Court made clear in Davis tha tit will not permit the testimonial sta t ement of one witness to enter into evidence through the i n -court tes t imony of a second: “[W]e do no t thinkit conceivable that the protections of the Conf rontation Clause can readily be evaded by having anote-taking policeman [here, the laboratory employee who signs the certificate ] re cite the unsworn hearsay tes t imony of the declarant [here, the analyst who performs the actual test], i n stead of h aving the declarant sign a deposition. Ind eed, if ther e is on e point for which no case—English or early American, state or fed e ral—can be cited, that is it.” 547 U. S., at 826. Under this logic, the Court’s holding cannot b ecabined to the person who signs th e certificates. If the signatory is restating th e testimonial statements of the tru e analysts— whoever they might be—then those ana lysts, too, mus t testify in person. Today’s dec i sion demonstrates th at even in the narro w category of scientific tests t hat identify a drug, the Court cannot define with any clarit y who the analyst is. Outside this narrow categor y , the range of other scientific tests that may be affected by the Court’s ne w confrontation right is staggering. S ee, e.g. , Comment, Toward a Defi nition of “Testimonial”: How Au top s y Reports Do Not Em

body the Qualities of a Testimonial Statement, 96 Cal. L. Rev. 1093, 1094, 1115 (2008) (noting that every court pos t

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K ENNEDY , J., dis s e nting Cra wfordhas held tha tautopsy reports are not testimonial, and warning that a con traryrule would “effectively functio[n] as a statute of limitations for murder”). 2 It is difficu lt to confin e at this p o int the da mage the Court’s holding will do in other contexts. Consider jus t two—establishing the chain of custody and authenticatin g a copy of a document. It is the ob ligation of the prosecution to establish the chain of custody for evidence sent to testing laboratories— that is, to establish “the identity and integrityof physical evidence b ytracing i t s continuous whereabouts.” 2 3 C. J. S., Cri m inal Law §1142, p. 6 6(2008). Meeting this obligation requires representations—that o n e officer retrieved the evidence from the crime scene, that a second officer chec ked it into an evidence locker, t hat a third officer verified the locker’s se al was intact, and so forth. The iron l o gic of which the Court is soena m ored would seem to require in-court testimonyfrom each human link in the chain of custody. That, of course, has never been the law. Se e, e.g. , Uni t ed States v. Lott , 854 F. 2d 244, 250 (CA7 1988) (“[G]aps inthe chain [of custody] normally go to the weight of the eviden ce rather than its admissibility”); 29 A Am. Jur. 2d, Evidence § 962, p. 269 (2009) (“Th e fact that o n e of the persons in control of a fungible substance does not testifyat trial d oes 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 tosay that “[i]t is up to the prosecution to decide what st eps in the chain of custody are so crucial as to require evidence.” Ante , a t5, n. 1. The case itself determines which links in the chain are crucial—not the prosecution. In any number of cases, th e8 M E LENDEZ -DIAZ v. MASSACHUS ETTS

K ENNEDY , J., dis s e nting crucial link in the cha i n will notbe availab l e to testif y and so the evidence will be ex cluded for lack of a proper foundation. Consider another context in which the Court’s holdingmay cause disruption: The long-accepted practice of authenticating copies of docume nts by means of a certificate from the d o cument’s custodian stating tha tthe copyis accurate. See, e.g. , Fed. Rule Evid. 902(4) (in order to be self-authen t icating, a copy of apublic record must be “certified as correct b y the custodian”); Rule 902(11) (business record must be “accompanied by a written declaratio n of its custodian”). Under one possible r e ading of the Court’s opi n ion, recordkeepers will be requi red to testify. So far, courts have not read Cra wf o rd and Da vis to impose this largely meaningless requirement. See, e.g. , United Sta t es v. A defehinti , 5 10 F. 3d 319, 327–328 (CADC 200 8) (certificates authenticating bank records may be admitted without confrontation); United S t ates v. Ellis , 460 F. 3d 920, 927 ( CA7 2006) (certificate authenticating hospita l records). B u t the breadth of the Court’s ruli ng today, a n d its undefined scope, may well be such that these courts now must be deemed t ohave erre d. The riskof that con

sequence ought to tell us thatsomething is verywron g with the Co urt’s analys is. Because th e Court is driven by nothing more than a wooden application of the Cra wf o rdand Da visdefinition of “testimonial,” divorced froman y guidance from history, precedent, or common sense, thereis no way to predict the future appl ications of today’s hol d ing. Su rely partof t h e justification for the Co urt’s formal ism must lie in its pre

dictability. There is nothin g predictable here, however, other than the uncerta inty and di sruption th at now mus t
ensue. B With no precedent to guide us, let us assume that the9 Cite as: 55 7 U

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K ENNEDY , J., dis s e nting Court’s ana lyst is the person who interprets t h e machine’s printout. This result makes no sense. The Confrontation Clause is n o t designed, and does not serve, to detect error s in scientific tests. That should instead be done by co nducting a n e w test. Or, if a new test is impossible, th e defendant may call hi s own expe rt to explain to the ju ry the test’s fl aws and th e d angers of relying on it. And if, in an extraordinary case, the particular analyst’s testimony is necessaryto the defense, then, of course, th e defenda n t may subpoena the an alyst. The Court frets that the defendant may be unable to do s o “when the [analyst] is unavailable or simply refuses to ap pear.” Ante , at 19. But laboratory analysts are not diffic u lt to locate or to compel. As discussed below, analysts already devote considerable time to appearing in court wh en s ubpoenaed to do so. See Part I–C, inf ra; see also Brief for State of Al abama et al.
as Amici Curiae 26–28

. Neither the Court, petitioner, n o r 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 k n ew, well in advance of trial, that the Commonwealth would introduce the tests agains t him. Th e bags of cocaine were in court, available forhim 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 di scovery concerning the testing methods used or the qualific ations of th e laborato ry analysts. See Mass. Rule Crim. Proc. 14(a)(2) (2009). He did not do so. Petitioner co uld have sought to conduct his own test. See Rule 4 1

. Again, he did not seek a test ; indeed, he did not argue that the drug was not cocaine. Rather than dispute the authenti c ity of the s a mples test ed or the accuracy of the tests performed, petitioner argued to10 M E LENDEZ -DIAZ v. MASSACHUS ETTS

K ENNEDY , J., dis s e nting the jury th at the pros ecution had not shown that he ha d possessed or dealt in the drugs. Despite not having pre p ared a defense to the analysts’ results, petitioner’s counsel made what can only be described as a pro form a objection to admittin gthe resultswithout in-court testimony, presumably from one particular analyst. Today the Court, b y deciding th at this objection shouldhave 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 th e purposes of the Confrontation Clause. One purpose of confrontation is to impress upon witnesses the gravit y 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 cond emn, might refine, reformulate, reconsider, or even rec ant e a rlier statements. Se e ibid

. A further purpose is to a llevi ate the da nger of one

sided interrogations by advers ari a l government officials who might distort a witness’s testimony. The Clause guards a g ainst this da nger by b r inging the i n terrogatio n into the more neutral and public forum of the courtroom. See Maryland v. Crai g , 497 U. S. 836, 869–870 (1990) (S CALIA , J., dissenting) (discussing the “value of the confrontation right in guarding again s t a child’s distorted or coerced rec o llections”); see also 96 Cal. L. Rev., supra , at 1120–1122 (“Durin gprivate law-enforcement questionin g , police officers or prosecutor s canexert pres sure on th e witness without a high riskof 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,11 Cite as: 55 7 U

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K ENNEDY , J., dis s e nting the analyst is far rem o ved from the particul a r defendant and, indeed, claims nopersonal k n owledge of the defendant’s guilt. And an analyst performs hundreds if not thousands of tests each year and will not remember a particular t e st or the link it had to the defendant. This is not to say that analysts are infallible. They are not. Itmay well be that if the State does not introduce the machine printout or th e raw results of a labo ratory analysis; if it does not call a nex pert to interpret a test, partic u
larly if that test is com p lex or little known; if it does n o t establish the chain of custody and the reliability of the laboratory; then the State will have failed to meet i t s burden of proof. Tha tresult follows because the State must prove its case b e yond a re asonable d o ubt, witho u t relying on presumptions, unreliable hearsay, and the like. See United Sta t es v. Unit e dStat es G y

ps um C o
. , 438U. S. 422, 446 (1978) (refusing to permit a “ ‘co n clusive presumption [of intent],’ ” which “ ‘wo u ld effectively elim ina t e intent as an ingredient of the offense’ ” (quoting Moris set te
v. Uni t ed Sta t es , 342 U. S. 246, 274–275 (1952)). Th e State must permit the defendant to challenge the analyst’s result. See Ho lmes v. South Carolina , 547 U. S. 319, 33 1 (2006) (affirming the defendant’s right to “h ave a meaningful opportunityto p r esent a co mplete defense” (internal quotation marks omitted)). The rules of evidence, includ

ing those go verning reliability un der hearsay principles and the latitude to be give n expert witnesses; the rules against irrebutable presumptions; and the overriding principle that the prosecution mu st make its case beyon d a reasonable doubt—all these are part of the protections for the accu sed. The States, however, have s o me latitude in determining how these rules should be defin e d. The Confrontation Clause addresses who must testify. It simply do es not follow, however, that this cl ause, in lieu of the otherrules set forth above, controls who the prosecution mus tcall one v ery issue. Suppose, for instan ce,12 M E LENDEZ -DIAZ v. MASSACHUS ETTS

K ENNEDY , J., dis s e nting that the de fense chall e nges the procedures for a secure chain of cu stody for e vidence sent to a lab and then returned to t h e police. The defense has the ri ght to call i t s own witnesses to sh ow that the chain of c u stody is not
secure. But that does not mean it can demand that, in th e prosecution’s case in chief, each person who is in the chain of custody—and who had an undoubted opportunity to taint or ta mper with the evidence—must be called by t h e prosecution under the Confrontation Claus e. 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 sak eof thes e negligible benefits, the Court threatens to disrupt f o rensic investigations across the country an d to put prosecutionsnationwide at risk of dismissal b a sed on erratic, all-too-frequent instances when a particula r laboratory technicia n , now invested by t h e Court’s ne w constitu tional designation as the analyst, simply doesnot 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 argum e nt itself is ordered. A busy trial court, by contrast, must consider not only attor

neys’ schedules but also those of witnesses and juries. Trial courts have hug e caseloads to be processed within strict time limits. Some ca ses mayunexpectedly plead out at the last minute; oth e rs, just as unexpectedly, may not. Some juries stay out longer than predicted; others must be reconstituted. An analyst c annot hope to be the trial court’s top priority in scheduling. The anal yst must instead face the prospect of waiting for days in a hallway13 Cite as: 55 7 U

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K ENNEDY , J., dis s e nting outside the court r oom before being called t ooffer test imony 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 ap pearing as witnesses in those few cases where the defendant, unlik e petitioner in this case, contested the analyst’s result and subpoenaed the analyst. See Brief for Alabama et al. as Amici Curi ae 26–28 (testifying ta kes time); an te , at 23 (before today’s opinion, it was “ ‘almost always the case th at analysts’ certificates [we]re adm i tted witho u t objection’ ” in Massa

chusetts courts). By requiringan alysts also to appear in the far gre a ter number of cases where defendants do not dispute the analyst’s result, the Court imposes enormous costs on the administration of justi c e. Setting aside, for a moment, all the other crimes for which scientific evidence isre quired, 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 convicti ons in state courts acro ss the country. See Dept. of Just i ce, Bureau of Justice Statistics, M. Durose & P. Langan, Felony Sentences in State Courts 2004, p. 2 (July 2007). Roughly 9 5 % of those convictions were products of plea bargains, see id. , at 1, which mea n s that state courts saw more than 18,000 dru gtrials in a single year. The analysts responsible for testing the dru g s at issue in those cas e s now bea ra crushin g burden. For example, the district attorney i nPhiladelphia prosecuted 25,000 drug crime s in 2007. Brief for National Dist. Attorneys Association et al. as Am ici Curia e12–13. As suming that number remains the same, and assuming that 95% of the cases end i na plea bargain, each of the city’s 18 drug analysts, ibid ., will be required to testify in more than 69 trials next year. Clev eland’s district at torney prosecute d14M E LENDEZ -DIAZ v. MASSACHUS ETTS

K ENNEDY , J., dis s e nting 14,000 drug crimes in 2007. Ibid. Assuming that number holds, and that 95% of the casesend ina plea bargain, each of the city’s 6 dru ganalysts (two of whom work only part time) must testify in 117drug cases nextyear. Id. , a t 13.The Federal Government may face even graver difficulties than the States because its operations are so widespread. F o r example, the FBI laboratory at Quan tic o , Virginia, supports federal, state, and local i nvestigations across the country. Its 500 employees conduct over on e millionscientific tests each year. Dept. of Justice, FBI Laboratory 2007, Mess age from th e FBI Laboratory Dire ctor, http://www.fbi.go v/hq/lab/lab2007/laban nual07.pdf (as visited June 22, 2009, and available inClerk of Court’s case file). The Court’s decision m e ans that before any of those million tests reaches a jury, at least one of the laboratory’s an alysts must board a pl ane, find his or her wa y to an unfamiliar courthouse, and sit there waiting to re ad aloud notes made months ago.The Court purchases its meddling with the Confrontation Clause at a dear price, a pri c e not measured in taxpayer dollars alone. G u ilty defendants will go free, on th e most technical grounds , as a direc tresult of t o day’s decision, adding nothing to the trut h -finding p r ocess. 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 o u tside som eother courtroom for another defendant to exe rcise the right the Cou r t invents today. If for any reason the analyst cannot make it to the courthouse in t i me, then, the Court ho lds, the jur y cannot learn of the a nalyst’s findings (unless, by som e unlik ely turn of events, the defendant pre v iously crossexamined the analyst). An te , at3. T h e r e su lt , inm a ny cases, will be that the pros ecution cannot meet its burden of proof, an d the guilty defendant goes free ona technical­15 Cite as: 55 7 U

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K ENNEDY , J., dis s e nting ity that, because it res u lts in an acquittal, cannot be reviewed on appeal. The Court’s holding is a windfall to defendants, one that is unjustified by an y de monstrated deficiency i ntrials, an y well-understood historical requi rement, or any established constitutional precedent. II All of the p r oblems with today’s decision—the imprecise definition of “analyst,” the lackof any perceptible b e nefit, the heavy societal cos t s—would be of no m o ment if the Constitution did, in fact, requi re the Court to rule as it does today. But the Co nstitution does not.The Court’s fundamental mistake is to read the Confrontation Clause as referring to a kindof out-of-cour t statement—namely, a testimoni a l statement—that must be excluded from evidence. The Clause does not refer to k i nds of statements. Nor does the Clause contain the word “testi m onial.” The text, instead, refers to kinds of persons, namely, to “witnesses against” th e defendant. Laboratory analysts are not “witnesses against” the de

fendant as those words would have been understood at the framing. There is sim p ly no authority for thi s proposition. Instead, the Clause refers to a conventional “witness”— meaning on e who witnesses (that is, perceives) an event that gi ves h i m or her personal knowledge of some aspect o f the defendant’s guilt. Both Crawf o rd and Davis concern e d just this kind of ordinary witne ss—and nothing in the Confrontation Clause’stext, hist ory, or precedent justifie s the Court’s decision to expand tho s e 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 d r afters of the Confrontation Clause intended it to mean,” Whit e v. Illi

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K ENNEDY , J., dis s e nting nois , 502 U. S. 346, 359 (1992) (T HOMAS , J., concurring in part and concurring injudgment), it is certain the Fram

ers did not contemplate that an analyst wh o conducts a scientific test far removed fr om th e crime would be considered a “witnes[s] again s t” the defendant. The Frame r s were concerned wi th a typica l 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 e x tend to unconventional witne sses
. As discu ssed bel o w, there is significant evidence to the contrary. See Part II– B, infra

. In these circu mstances, t h e historical evidence in support of t h e Court’s position is “ ‘too meage r. . . to form a solid basis in history, precedin g and contemporaneous with the f r aming of t h e Constitution.’ ” Boumediene v. Bush , 553 U. S. ___, ___ (2008) ( s lip op., at22) (quoti ng Reid v. Covert , 354 U. S. 1, 64(1957) (Frankfurter, J., concurring in result)). The Court goes dangerously wrong when it bases its constitutional interpretati on upon historical guesswork. The infamo us treason trial of Sir Walter Raleigh provides excellent examples of th e ki nds of witnesses to whom the Confrontation Clause refers. Raleigh’s Case , 2 Ho w. St. Tr. 1 (1603); see Crawford , 54 1 U. S., at 44–45 (Raleigh’s tria linforms our understanding of the Clause because it was, at the time of the framing, one of the “most notorious in stances” of the abuse of witnesses’ out-of-court statements); ante , at 9 (same). Raleigh’s accusers claimed to have heard Raleigh speak treason, so th ey were witnesses in th e conventional sense. We should limit the Confrontation Clause to witnesses like those in Raleigh’s trial. The Court today expa nds the Clause to include laboratory analys ts, but anal ysts differ from ordina ry witnesses in at least three significant wa ys. First, aconventional witness recalls events observed in the past, while an17 Cite as: 55 7 U

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K ENNEDY , J., dis s e nting analyst’s re port contai ns near-contemporaneous observations of the test. An o b servation 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 s h e perceived just once, and thus may have misperceived or misreme m
bered. But an analyst making a contemporaneous obser

vation need not rely on memory; he or she ins t ead reports the observations at the time they are made. We gave this consideration substan t ial weight in Davis

. There, th e “primary purpose” of the victim’s 911 call was “to enable police assis t ance to meet an ongoing emergency,” rather than “to establish or prove past events potentially relevant to later criminal prosecution.” 547 U. S., at 8 22, 827. See also People v. Geie r , 4 1 Cal. 4th 555, 605–609, 161 P. 3d 104, 139–1 41 (2007). The Court cites no authority for its holding that an observation recorded at the time it is made is an act of “ w it ness[ing]” for purposes of the Confrontation Clause. Second, an analyst observes neither the crim enor any human action related to it. Often, the analyst does no t know the defendant’s identity, m u ch less have personal knowledge of an asp e ct of the def e ndant’s guilt. The an alyst’s dista n ce from th e crime and the defendant, in both space and time, suggests the a nalyst is n o t a witness against the defendant in the conventional sen s e. Third, a conventional witness responds to questions under interrogation. See, e.g. , Raleigh ’ s Case , supra , a t 15–20. Bu t laboratory tests are conducted according to scientific protocols; they ar e not dependent upon or co ntrolled by interrogatio nof any sort. Put differently, out-ofcourt statements should only “require confrontation if th e y are produced by, or with the involvement of , adversarial government officials responsible for investigating an d prosecuting crime.” 96Cal. L. Rev., at 1118. There is no indication that the ana lysts here—w ho wor kf o r the Sta t e LaboratoryInstitute, a division of the Massachusetts18M E LENDEZ -DIAZ v. MASSACHUS ETTS

K ENNEDY , J., dis s e nting Departmen t of Public Health—were adversarial to petitioner. Nor is there any evidence that adversarial officials played a role in formulating the analysts’ certificates. Rather tha nacknowle dge that it expands th e Confrontation Clause beyond conventional witnesses , the Court relies on ou r recent opinions in Crawford an d Davis

. An te , at 3–5. The Court a ssumes, with little analysis, that Cra wford an d Da vise x tended th e Clause to any perso n who mak e s a “testimonial” statement. But the Court’s confident tone cannot disguise the thinnessof these two reeds. Neither Cra wfor d nor Davisconside r ed whethe r the Clause extends to persons far removed from the crim e who have no connection to the defendant. Instead, those cases concerned conventional witnesses. Davis , supra , at 826–830 (witnesses were victims of defendants’ assaults ); Cra wford , supra , at 38 (witness saw defendant stab victim). It is true that Crawford and Dav i semploye dthe term “testimonial,” and thereby suggested that any testimonial statement, by any pers on, no matter how distant from th e defendant and the crime, is subj ect to the Confrontation Clause. But that suggestion was not part of the holding of Cra wford or Davis

. Those opin ions us ed the adjective “testimonial” to avoid the awkwa r d phrasingrequired by reusing the noun “witness.” The Court toda y transform s that tu rn of phrase into a new an d sweeping legal rule, by holding that anyone who makes a formal statement for the purpose of later prosecution—no matter h o w removed from the crime—must be consider ed a “witness against” the defendant. An te , a t3–5. The Court cites no authority to justify th is expansive new interpretation. B No historical evidence supports t h e Court’s conclusion that the Co nfrontation Clause was understood to extend beyond conventional witnesses to include analysts who19 Cite as: 55 7 U

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K ENNEDY , J., dis s e nting conduct scientific tests far removed from the crime and the defendant. Indeed, w hat little e vidence there is contr a
dicts this interpretatio n
. Though the Framers h a d no forensic scientists, they di d use another kind of u n conventional witness—the copyi s t. A copyist’s work may b eas essential to a criminal prosec ution as the forensic an alyst’s. To convict a man of b i gamy, for example, the State often requires his marriage records. See, e.g. , Williamsv. St a t e , 54 Ala

. 131, 134, 135 (1875); Sta t ev. Po tte r , 52 Vt. 33, 38 (18 79). But if the origin al records can n ot be taken from the archive, the prosecution must rely on copies of those records, made for the purpo s e of introducing the copies into evidence at trial. See ibid

. In that case, the copyist’s hone sty and diligence are just as important as the analyst’s here. If the copyist falsifies a copy, or eve nmisspells a name or transposes a date, those flaws could lead the jury to con vict. Beca use so muc h depends onhis or herhonesty and diligence, the copyist often prepa r es an affid avit cer t ifyi ng tha tthe copyis t r ue and accurat e
. Such a certificate is beyo nd qu estion a testimonialstatement under the Court’s definition: It is a formal outof-court sta t ement offered for the t r uth of t w o matters (th e copyist’s ho nesty and t h e copy’s a ccurac y), a n d it is p r epared for a criminal prosecution. During the Framers’ era copyists’ affidavits were accepted with out hesitation by American court s
. See, e.g. , United S t a t es v. Percheman , 7 Pet. 51, 85 (18 33) (opinion for the Cou rt b yMars hall, C. J.); see also Advisory Committee’s Note on Fed. Rule Evid. 902(4), 28 U. S. C. App., p. 390 (“Th e common law

. . . recognized the procedure o f authenticating copies of public records by certificate”); 5 J. Wigmore, Evidence §§1677, 167 8 (J. Chadbourn rev. 1974). And courts a d m i tted copyis ts’ affidavi ts in criminal as well as civil trials. See Williams , supra; Potte r , supra
. This demonstrates th at the fra m ing generation, in con­20 M E LENDEZ -DIAZ v. MASSACHUS ETTS

K ENNEDY , J., dis s e nting trast to the Court toda y, di d not consider the Confrontation Clause to require in-cou rt confrontation of unconventional authors of testimonial statements. The Court attempts to explain away this historical exception to its rule by notingthat a copyist’s authority is “narrowlyc i rcumscribed.” Ante , at16. But th e Court does not explain whythat matters, nor, if it does matter, why laboratory analysts’ a u thority sh ould not also be deem ed “narrowly c i rcumscribed” so that t h ey, too, may be excused from testify i ng. An d d r awingthe s e fine distinctions can

not be squared with the Court’s avowed allegiance to formalism. Determining whet her a witness’ authority is “narrowlyc i rcumscribed” has not h ing to do with Craw
ford’s testimonial fra m ework. It instead a p pears much closer to the pre- Cra wford rule of Ohio v. Roberts , under which a sta t ement could be admitt ed without testimony if it “bears adequate indi cia of rel i ab ility.” 448U. S., at 66 (internal quotation marks omitted). In k eeping with the traditional understanding of the Confrontation Clause, this Court in Do wd ell v. Uni t ed Sta t es , 221 U. S. 325 (1911), rejected a challenge to th e use of certificates, sworn out by a clerk of court, a trial judge, and a court reporter, stating that defendants had been prese n t at trial. Those certificates, like a copyist’s certificate, met every requireme nt of the Court’s cur r en t definition of “testimonial.” In rejecting the defendants’ claim that use of the certificates violated the Confronta

tion Clause, the Court in Dowdell explained that the officials who executed the certific a tes “were not witnesses against the accused” because they “were not asked to testify to fa cts concerni ng [the defendants’] guilt or inno

cence.” Id. , at 330. Indeed, as recently as Davi s , the Court reaffi rmed Dowd ell

. 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 the21 Cite as: 55 7 U

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K ENNEDY , J., dis s e nting Framers’ se nsible, and limited, conception of the right to confront “witnesses ag ainst” the defendant. C In addition to lacking s u pport in historical pra ctice or in this Court’s precedent , the Court ’ s decision is also contrary to authority extending over at least 90 years, 3 5 States, and six Federal Courts of Appeals. Almost 100 years ago three state supreme courts held that their state constitution s did not require analysts to testify in co urt. Ina c a se much like this one, the Massachusetts Su preme Judicial Court upheld the admission of a certificate stating tha tthe liquid seized from the defendant contai ned alcohol, even though the a u thor of th e certificate did not testify. Commonwealth v. Slavski , 245 Mass. 405, 413, 140 N. E. 465, 46 7 (1923). The highest courts in C o nnecticut and Virgini areached similar conclusions undertheir 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 courtsappear to have read a state constitution to require a contrar yresult

. St a t e v. Clark , 290 Mont. 479, 484–489, 964 P. 2d 766, 770–772 (19 98) (laboratory drug re port requires confrontation under Montana’s Constituti on, which is “[u]nlike its federal counterpart” ); Sta t e v. Birchfield , 342 Ore. 624, 157 P. 3d 216 (2007), but seeid. , at 631–632, 157 P. 3d, at 2 20 (suggesting t hata “typi cal not i ce requirement” would be lawful). As for the Federal C o nstitution, before Crawford th e authority was stronger still: The Sixth Ame n dment does not require analysts to testify inco urt. All Fe deral Courts of Appeals to consider the issue agreed. Sherman v. Sc ott , 62 F. 3d 13 6, 139–142 (CA5 1995 ); Minner v. Kerby , 30 F. 3d 1311, 1313–1315 (CA10 1 994); United Stat es v. Baker , 855 F. 2d 1353, 1359–1360 (CA8 1988); Reardon v. Manson , 806 F. 2d 39 (CA2 1986); Kay v. Un i t edS t a t e s ,22 M E LENDEZ -DIAZ v. MASSACHUS ETTS

K ENNEDY , J., dis s e nting 255 F. 2d 476, 480–48 1 (CA4 1958); see also Manocchio v. Moran , 919 F. 2d 770, 777–782 (CA1 1990) (autopsy report stating cau s e of victim’s death). Some 24 state courts, an d the Court of Appeals for the Ar med Forces, were in accord. See Appendix A, inf ra
. (Some c a ses cited in the appe ndixes concern doctors, corone rs, and calibra tors rather than laboratory analys ts, but th eir reasoning is much th e same.) Eleven more s t ate courts upheld bu rden-shifting statutes th at reduce, if not e liminate, the right to confrontation by re quiring the defendant to take affirmative steps prior to tri al to summon the analyst. See ib id

. Because these burden-shifting statutes may be invalidated by th e Court’s rea s oning, these 11 decisions, too, appear contra ry to today’s opinion. See Part III–B, infra

. M o s to f th e remaining States, far from endo rsing the Court’s view, appear not to have addressed the question prior to Craw

ford

. Agai nst this weight of auth o rity, the C o urt proffer s just two ca ses from intermediatestate courts of appeals. Ante , at 6–7

. On a practical level, today’s ruling would cause l e ss disruption if the States’ hearsay rules hadalready required analysts to testify. But few Sta t es req u ire this. At least sixteen state cou rts have he ld that their evidentiar y rules permi tscientific test re sults, 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 federa l hearsay rule. United Sta t es v. Garnet t , 122 F. 3d 1016, 1018–1019 (CA11 1997 ) (per curi am ); United S t atesv. Gil b ert , 774 F. 2d 962, 96 5 (CA9 1985) (per cur i a m ); United Sta t es v. Ware , 247 F. 2d 698, 699–7 00 (CA7 1957); but seeUnited Sta t es v. Oates , 560 F. 2d 4 5 , 82 (CA2 1977) (report prepared by law enforcement not admissible underpublic-records or business-records exceptions to federal hearsay rule). The modern trend in the state courts has been awa y23 Cite as: 55 7 U

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K ENNEDY , J., dis s e nting from the C o urt’s rule and towar dthe admission of scientific test results without testimony—perhaps because th e States have recognized the increasing reliability of scientific testing. See Appendix B, infra(citing cases from three State s overruling or lim iting previous precedents that had a d opted the Court’s ru le as a matter of stat e law). It a p pears that a mere six courts conti nue to interpret their States’ hea r say la ws to require analysts to testify. See ibid

. And, of cour se, where courts hav e grounded their decisions in state law, rath er than th e Constitution, the l e gislatures in those States have had , until now, t h e power to abrogate t h e courts’ i n terpretati on if the costs were shown to out w eigh the ben e fits. Toda y the Court strips that a u thority fro mthe States by carvin g the minority view into the constitutional text. State legislatures, and not the Members of th is Court, have the authority to shape the rules of evidence. The Court there f ore errs when it relies in such gr eat measure on the recent report of the National Academyof Sciences. Ante , a t12 –14 (discussing Natio nal Research Council of the Nation al Academi e s, Strengthening Forensic Science in the United States: A Pa th Forward (Prepublication Copy Feb. 2009)). That repo rt is not directed to th is Court, but rather to t h e elected representatives in Congress and the state le gislatures, who, unlik e Members of this Court, have the power and competence to determine whether sci e ntific tests are unreliable and, if so, whether testimony is the proper solution to the problem. The Court rejects the well-established understanding— extending a cross at least 90 years, 35 States and six Federal Courts of Appeal s—that the Constituti on does not require analysts to testify incourt before their analysis may be introduced into evidence. The only authority o n which the Court can rely is its own speculation on th e meaning of the word “testimonial,” made in two recen t opinions that said nothing about scientific analysis or24M E LENDEZ -DIAZ v. MASSACHUS ETTS

K ENNEDY , J., dis s e nting scientific analysts. III In an attempt to show that the “sky will not fall after today’s deci sion,” ante , at 20, the Court ma kes three arguments, none of which withstands scrutiny. A In an unconvincing effort to play down the threat tha t today’s ne w rule will di srupt or even end crimi nal prosecutions, the C o urt professes a ho pe that defense counsel will decline to raise what will soon b eknown as the MelendezDiaz objection. Ante , a t22. The C o urt bases this expectation on its understanding that defense attorneys surrender constitutional rights be cause the attor n eys do not “want to a n tagonize the judge or jury b y wasting th eir time.” Ibid. The Court’s reasoning is troubling on at least two levels. First, the C o urt’s specu l ation rests on the apparent belief that our Nation’s trial judges and jurors are unwilling to accept zeal ous advocacy and that, once “antagonize[d]” by it, will puni sh such advocates with adverse rulings. Ibi d

. The Court offers no support for th is stunning slur on th e integrity of the Nation’s courts. Itis 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 ele m ent of the crime—eve n an element that is tec hnical and rather obvious, such as movement of a car in inters tate commerce—t hen the case must be dismissed. Until today one would not have thought that judges should be angered at the defense for making su ch motions, nor that co unsel has some sort of obligation to avoid bei n g troublesome when the prosecution has notdone all the law requires to prove its case. Second, ev en if the Court we re right to expect trial judges to feel “antagonize[d]” by Melendez-Diaz objections and to then vent their anger by punishing the lawyer in25 Cite as: 55 7 U

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K ENNEDY , J., dis s e nting some way, there is no authority to support the Court’s suggestion that a lawyer may shirk his or her professiona l duties just to avoid judicial displeasure. T h ere is good reason whythe Court cites no authority for this suggestion—it is c o ntrary to what some of us, atleast, have long understood to be defense counsel’s duty to be a zealous advocate for every client. This Court has recognized the bedrock pri n ciple that a competent criminal defense lawyer must put the prosecution to its proof: “[T]he adv e rsarial process protected by th e Sixth Amendment requires that the accused have ‘counsel acting inth e role of an advocate. ’ Andersv. Califor

nia , 386 U. S. 738, 743 (1967). Th e 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 adversaria l testing. When a true advers arial criminal trial has been conducted .

. . the k i nd of testing envisioned by the Sixth Amendment has oc curred. Bu t if the proc ess loses its charac

ter as a confrontation between adversaries, the constitutional guarantee is violated.” United Sta t esv. Cronic , 466 U. S. 648, 656–657(1984) (f ootnotes omitted). See also ABA Model Code of Professional Responsibility, Canon 7–1, in ABA Co mpendium of Professional Responsibility Rules and Standards ( 2008 ) (“The duty of a lawyer, both to his client and to the legal system, is t orepresent his client zealously within the bounds of the law

. . .” (footnotes omitted)). The instan t case demonstrates how zealous defens e counsel will defend their clients. To convict, the prosecution must prove the substance is cocaine. Under the Court’s ne w rule, apparently only an analyst’s testimony suffices to prove that fact. (O f course there will also be a large universe of other crimes, ranging from homicide t o26M E LENDEZ -DIAZ v. MASSACHUS ETTS

K ENNEDY , J., dis s e nting robbery, wh ere scientific evidence is necessary to prove an element.) I ncases where scientifi cevidence is necessary to prove an element of th e crime, the Court’s rule require s the prosecution to call the person identified as the analyst; this requirement has become a new prosecutorial du ty linked withproving th e State’s ca se beyond a reasonable doubt. Unl e ss the Court is asham ed of its new rule, it is inexplicable that the Court seeks to limit its damage by hoping that defense counsel w ill be derelict in their duty to insist that the pros ecution 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 th at defense cou n sel willin sist on l ivetestimony whose effect will be merely to highl i ght ra ther than cast doubt upon the forensic analysis.” Ante , a t2 2

. T h i s o p t i m i s t i cp r e d i c
tion misunderstands how crimin a l trials work. If th edefense does not plan to challenge the test result, “highlight[ing]” that result through testimony does not harm the defense as the Cou rt supposes. If the an alyst cannot reach the courtroom in time to testify, however, a Melendez-Diaz objection grants th e defense a great windfall: The an alyst’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 t r ial, not to raise a Melendez-Diaz objection. Defense counsel will accept the risk that t h e jury may hear the analyst’s live testimony, in exch ange for the chance that the analyst fails to appear and the government’s case collapses. And if , as here, the d e fense is n o t that the s ubstance was harmless, but instead that the accused didnot possess it, the testimony of the technician is a formalism that does not detrac tfrom the defense case. In further s u pport of it s unlikely hope, the C o urt relies on the Brief for Law Professors as Amici Curiae 7–8 , which reports that nea r ly 95% of convictions are obtaine d27 Cite as: 55 7 U

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K ENNEDY , J., dis s e nting via guilty plea and thus do not require in-court testimony from labora tory analysts. Ante , at 20. Wha tthe Court does not consider is how its holding will alter these statistics. The defense bar t o day gains the formidable power to require the government to transport the analyst to the courtroom at the time of trial. Zealous coun sel will insi st upon concessions: a plea bar gain, or a m o re lenient sentence in exchange fo r relinquishing this remarkable power. B As further reassurance that the “sky will not fall afte r today’s deci sion,” ante , at 20, the Court notes that many States have enacted bu rden-shifting statutes that require the defendant to assert his Confrontation Clause right prior to tri al or else “f orfeit” it “b y silence.” Ibid. The Court implies that by shifting the burden to the defenda n t 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 vie w , they “sh i ft no burden whatever.” Ante, at 21. While thi s conclusion is welcome, the premise appears flawed. Even what the Court calls the “simplest form” of burden-shifting statu t es do impose requiremen t s on the defendant, who must make a formal demand, with properservice, well before trial. So me statutes impose more requiremen t s, for instance by re

quiring defense couns el to subpoena the an alyst, to sh ow good cause for demanding the analyst’s prese n ce, or even to affirm under oath a nintent to cross-examine the analyst. See ge nerally Metzger, Cheat i ng the Con s titution, 59 Vand. L. Rev. 475, 48 1–485 (200 6). Ina fu ture case, the Court may find that some of th ese more oner ous burdenshifting sta t utes violate the Confrontation Clause because they “impo s [e] a burden

. . . on the defendant to b r ing . . . adverse witnesses into court.” Ante , at 19.28M E LENDEZ -DIAZ v. MASSACHUS ETTS

K ENNEDY , J., dis s e nting The burden-shifting statutes thus provide little reassurance that this case will not impos ea meanin gless forma l

ism across the board. C In a further effort to suppo rt its as sessment that today’s decision will not cause disrup tion, the Court c i tes 10 decisions from States that, the Court asserts, “h ave 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 ju stice system has ground to a halt in the[se] States.” Ante , at 20. On inspecti on, the citations prove far less reassuring than promi s ed. Seven were deci de d by courts that considered thems e lves boun d by Cra wf o rd

. Thes e cases thu s offer no support for t h e Court’s assertion that the state jurists independently “adopted” th e Court’s interpretatio n as a matterof state la w. Quite th e contrar y , the debate i n those sevencourts was over just how far this Court intended Cra wford to sweep. See, e.g. , Sta t e v. Belvin , 986 So. 2d 516, 526 (Fla. 2008) (Wells, J., concu rring in pa rt and dissenting in part) (“I believe that the majority ha s extended the Cra wfor d and Davisdecisions beyond their intended reach” (citati o ns om itted)). The Court should correct the s e courts’ overbroad reading of Crawford , not endorse it. Were the Court to do so, these seven jurisdic

tions might well change their position. Moreover, because these seven courts only “adopted” the Court’s position in the wake of Cra wfor d, th eir decisions are all quit erecent. These States have not yet been sub

ject to the widespread, adverse re sults 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 preCra wfordc a ses—come from State s that have reduced th e confrontation right. Four States have enact e d a burden

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K ENNEDY , J., dis s e nting shifting statute requiring the defendant to give early notice of his intent to confront th e analyst. See Part II I– B, supra;Color a do: Hinojos-Mendozav. Peop le , 169 P. 3d 662, 668–671 (Colo. 2007), Colo. Rev. Stat. §16–3–309 (2008) (defendant must give notice 10 days before trial); Georgia: Co mpareMillerv. St at e , 266 Ga. 8 50, 854–855, 472 S. E. 2 d74, 78–79 (1996) (striking down earlier notice statute req u iring defendant to show good cause, prior to trial, to callthe analyst), with Ga. Code Ann. §35–3–154. 1 (2006) (defendant must give notice 10 days before trial); Illinois: Peoplev. McClanahan , 19 1 Ill. 2d 12 7, 133–134, 729 N. E. 2 d470, 474–475 (2000), Ill. Comp. Stat., ch. 725 , §5/115–15 (2006) (defendant mus tgive notice “within 7 days” of “ r eceipt of the report”); Orego n : Statev. Birchfi eld , 342 Ore., a t631–632, 157 P. 3d, at 220 (suggesting tha ta “typicalnoticerequirement” would be lawful), see Ore. Rev. Sta t . §475.235 (2007) (defendant must give notice 15 days before trial)

. A fifth Sta t e, Mississ ippi, excuses the prosecution from producing the analyst who conducted the test, so long as it produces someone. Compare Ba rne ttev. St a t e , 481 So. 2 d788, 792 (Miss. 1985) (cited by th e Court), with McGowenv. State , 859 So. 2d 320, 339–340 (Miss. 2003) (the Si xth Amendment does not require confrontation with the particular analyst who conducted the test). It is possible that neither Mississippi’s prac tice nor the burde n-shifting statutes can be reconciled with the Co urt’s holding. See Part III–B, supra
. The disrupt i on 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 r e fers. The j u dgment of the Appeal s Court of Massachusetts should be affirmed.K ENNEDY , J., dis s e nting 30 M E LENDEZ -DIAZ v. MASSACHUS ETTS
Appendix A to opinion of K ENNEDY , J. APPENDIX ES A The foll owing authorities held, prior to Crawford , that the Confrontation Clause does not require confrontation of the analyst who conducted a routin e scientific test: Uni t ed Sta t es v. Vietor , 10 M. J. 69, 72 (C t. Mil. App. 1980) (laboratorydru greport); State v. Cosgro ve , 181 Co nn. 562, 57 4– 578, 436 A. 2d 33, 40–4 1 (1980) (sa m e); Ho war d v. United Sta t es , 473 A. 2d 835, 838–839 (D. C. 1984) (same); Bab e r v. Sta t e , 7 75 So. 2d 258 (Fla. 20 00) (blood- a lcohol test); Commonwealth v. Har v ard , 356 Mass. 452, 253 N. E. 2 d 346 (1969) (laboratory drug report); DeRosa v. First Judi

cial Di st. Co urt of Sta t e ex rel. Ca rson City , 1 15 Nev. 225, 232–233, 9 85 P. 2d 15 7, 162 (199 9) ( per curi am)(bloodalcohol test); Sta t e v. Coombs , 149 N. H. 319, 3 21–322, 821 A. 2d 1030, 1032 (20 03) (blood- a lcohol tes t); Sta t e v. Fische r , 45 9 N. W. 2d 818 (N. D. 1990) (laboratory dru g report); Commonwealth v. Carte r , 593 Pa. 56 2, 932 A. 2 d 1261 (200 7) (laboratory drug report; applying preCra wford law); Sta t e v. Tava re s , 590 A. 2d 867, 872–8 74 (R. I. 1991) (laboratory analysis of victim’s bodily fluid); Sta t e v. Hu tto , 325 S. C. 221, 228–230, 481 S. E. 2d 43 2, 436 (1997) (fingerprint); Sta t e v. Be st , 146 Ariz. 1, 3–4, 703 P. 2d 548, 550–551 (App. 1985) (sa m e); State v. Chris t ian , 119 N. M. 776, 895 P. 2d 676 (App. 1995) (blood-alcoh ol test); State v. Sosa , 59 Wash. App. 678, 684–6 87, 800 P. 2 d 839, 843–84 4 (1990) (lab oratory drug report). The foll owing 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, 157–15 9, 833 P. 2d 561, 627–628 (1992) (autopsy repo rt); Henson v. Sta t e , 332 A. 2d 773, 774–776 (Del. 1975) (treating phys ician’s repor tof victim’s injuri es, with medical conclusions redacted); Collins v. Sta t e , 267 Ind. 233, 235–236, 369K ENNEDY , J., dis s e nting 31 Cite as: 55 7 U

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Appendix A to opinion of K ENNEDY , J. N. E. 2d 422, 423 (1977) (autopsy repo rt); St a t e v. Wilburn , 1 96 La. 113, 115–118, 198 So. 765, 765–766 (1940) (hos pital record stating victim’s cause of death) (citing State v. Park er , 7 La. Ann. 83 (185 2) (coroner’s written inquest stating cause of death)); Sta t e v. Garlick , 313 Md. 209, 223–225, 545 A. 2d 27, 34 (1988) (blood test showing presence of il legal drug); People v. Kirtdoll , 39 1 Mich. 370, 385–391, 2 17 N. W. 2d 37, 46–48 ( 1974) (treating physici an’s report describing victim’s inj u ries); 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, 786–78 7 (1975) (lab oratory re port statin g that murde rvictim’s bl ood contained poison). The foll owing authorities held, prior to Crawford , that the Confrontation Clause does not require confrontation of certificates stating thatinstruments were in good workin g order at the time of a test: Sta t e v. Ing , 53 Ha w. 466, 467 – 473, 497 P. 2d 575, 577–579 (1972) (certificate that police car’s speedometer was in work ing order), accord, Sta t e v. Ofa , 9 Ha w. App. 13 0, 135–139, 828 P. 2d 813, 817–818 (1992) ( percuriam)(c ertificate that breathalyzer was in workingord e r); Sta t e v. Ruiz , 120 N. M. 534, 903 P. 2d 8 45 (App. 1995) (same); Sta t e v. Dilliner , 212 W. Va. 135, 141– 142, 569 S. E. 2d 211, 217–218 (2002) (same); State v. Hug g ins , 6 59 P. 2d 6 13, 616–617 (Alaska App. 1982) (same); State v. Conwa y , 70 Ore. App. 721, 690 P. 2d 1128 (1984) (same). The following decisions reduce d t h e right to confront th e results of scientific tests by upholding burden-shifting statutes th at require the defendant to ta ke affirmative steps prior to trial to summon th e analyst: Johnson v. Sta t e , 303 Ark. 12, 1 8–20, 792 S. W. 2d 8 63, 866–867 (1990) (defendant must give notice 10 days before trial); Sta t e v. Da vison , 245 N. W. 2d 321 (Iowa 1976), Iowa Code Ann. §691.2 (2008) (s ame); Sta t e v. Crow , 2 66 Kan. 69 0,K ENNEDY , J., dis s e nting 32 M E LENDEZ -DIAZ v. MASSACHUS ETTS
Appendix B to opinion of K ENNEDY , J. 974 P. 2d 1 00 (1999) (d efendant must give notice within 1 0 days of rece iving the re sult and must show th at the result will be ch allenged attrial); State v. Chri s t ianson , 404 A. 2d 999 (M e. 1979) ( d efendant must give notice 10 d a ys before trial); Sta t e 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 th e result will b echallenged at trial); Sta t ev. Sm ith , 312 N. C. 361, 381–382, 323 S. E. 2d 316 , 328 (1984) (defendant must subpoena analyst); Sta t e v. Hanco c k , 3 17 Ore. 5, 9– 12, 854 P. 2 d926, 928– 930 (1993) (same), but see Sta t e v. Birchfi eld , 342 Ore. 6 24, 157 P. 3d 216 (reducing defendant’s burden); State v. Hugh es , 713 S. W. 2d 58 (1986) (defendant must sub p oena analyst); Magr uder v. Com

monwealth , 275 Va. 283, 295–300, 657 S. E. 2 d113, 119– 121 (2008) (defendant must “call the personperforming such analysis,” at the State’s expense); People v. MayfieldUlloa , 817 P. 2d 603 (Colo. App. 1991) (defendant mus t give notice to State and the analyst 10 days before trial) ; Sta t e v. M a tth ew s , 63 2 So. 2d 2 94, 300–302 (La. App. 1993) (defendant must give noti ce five days before trial). B The following authorities ho ld that State Rules ofEvidence permit the results of routine scientific tests to be admitted i n to evidence withoutconfrontat ion: State v. Torre s , 60 Haw. 271, 589 P. 2d 8 3 (1978) (X ray of victi m’s body); Sta t e v. Davi s , 2 69 N. W. 2d 434, 440 (Iowa 1978) (laboratory analysis of victim’s bodily fluid); Sta t e v. Tay

lor , 486 S. W. 2d 239, 241–243 (M o. 1972) (microscopi c comparison of wood ch ip retri eved from defendant’s clothing with wo od at crime scene); Sta t e v. Snid er , 168 Mont. 220, 229–2 30, 541 P. 2d 1204, 1 210 (1975) (laboratory drug report); People v. Porter , 46 App. Div. 2 d307, 311

– 313, 362 N. Y. S. 2d 2 49, 255–256 (1974) (blood-alcohol report); Robertson v. Commonwealth , 211 Va. 62, 64–6 8,K ENNEDY , J., dis s e nting 33 Cite as: 55 7 U

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Appendix B to opinion of K ENNEDY , J. 175 S. E. 2d 260, 262 –264 (1970) (laboratory analysis of victim’s bodily fluid); Kreck , 86 Wash. 2d, 117–120, 5 4 2 P. 2d, 786–787 (labor a tory report stating that murde r victim’s blood contained poison). The following authorities ho ld that State Rules ofEvidence permit autopsy and hospital reports to be admitted into evidence without confrontation: People v. William s , 174 Cal. App. 2d 364, 389–391, 34 5 P. 2d 47, 63–64 (1959) (autopsy report); Hen s o n , supra , at 775–776 (report of physician who examined victim); Wilbu r n , 196 La., at 115–118, 1 98 So., at765–766 (h ospital record statin g victim’s cau s e of death); Garli c k , 3 13 Md., at 223–225, 545 A. 2d, at 34(blood test); St a t e v. R e ddick , 53 N. J. 66, 68– 69, 248 A. 2d 425, 42 6–427 (196 8) (per curi am) (autopsy report stati n g factual fi ndings, but not opinion s , of medical examiner); People v. Nis o noff , 293 N. Y. 597, 59 N. E. 2d 420 (1944) (same). The following authorities ho ld that State Rules ofEvidence permit certificates, which s t ate that scientific instruments were in good workin g order, to be admitted into evidence without confrontation: Wester v. Sta t e , 528 P. 2d 1179, 1183 (Alaska 197 4) (certifica te stating that breatha

lyzer machi n e was in workingor der); Be st v. St a t e , 32 8 A. 2d 141, 143 (Del. 1 974) (certificate that breathalyzer was in working order); State v. Rines , 269 A. 2d 9, 13–15 (Me. 1970) (manufactu rer’s certifi cate stating that bloodalcohol testkit was in workingor der admissible under the business-records excep t ion); McIlwain v. St at e , 700 So. 2d 586, 590–59 1 (Miss. 199 7) (same). Taking the minority view, the following authorities interpret st ate hearsay rules to require confrontation of the results of routine scientif ic tests or ob servations of medical personnel: State v. Sandoval-Ten a , 138 Idaho 908 , 912, 71 P. 3d 1055, 1059 (2003) (laboratory drug repo rt inadmissible under state hearsay rule); Spears v. Sta t e , 241 So. 2d 148 (Miss. 1970) (nurse’s observation of victimK ENNEDY , J., dis s e nting 34M E LENDEZ -DIAZ v. MASSACHUS ETTS
Appendix B to opinion of K ENNEDY , J. inadmissible under state hearsay rule and constitution); Sta t e v. Ja me s , 255 S. C. 365, 179 S. E. 2d 41 (1971) (chemical analysis of victim’s b o dily fluid inadmissible under state hearsay rule); Cole v. Sta t e , 839 S. W. 2d 798 (Tex. Ct. Crim. App. 1 990) (laboratory drug report inadmissible u n der state hearsay rule); State v. Workm a n , 2005 UT 66 , ¶¶9–20, 122 P. 3d 63 9, 642–643 (same); Sta t e v. William s , 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 w h ere expert testified based on t e st results prepared by an out-of-court analyst). This summary does not include decisions that find test results ina d missible because th e State failed to lay a proper foundation. Rather than endorse the minority view, those cases merely reaffirm t h e government’s burde n to prove the authenticity of it s evid ence and the applicability of an exception to the state hearsay rule. See, e.g. , Sta t e v. Fisher , 178 N. W. 2d 380 (Iowa 1970) (laboratory test of victi m ’s bodily fluid inadmissible und er business

records exception beca use the prosecution di d not show that it was kept in re gular cours eof business); State v. Foster , 198Kan. 52, 4 22 P. 2d 96 4 (1967) (no foundation laid for in troduction of blood-al c ohol test because the prosecution did not sh ow that the test was conducted in the usual course of business); Moon v. State , 300 Md. 35 4, 367–371, 478 A. 2d 695, 702–703 (1984) (blood alcohol test inadmissible because insuffici entfoundational eviden ce that the test was conducted in a reliable manner); cf. Davis , 269 N.W. 2d, at 440 (laboratory tes tof victim’s bodily fluidadmitted under business-records exception to state hearsay rule); Garlick , 313 Md., at 21 5, n. 2, 223– 225, 545 A. 2d, at 30, n. 2, 34 (laboratory test of defendant’s blood falls within “firmly rooted” he arsay exception). Three States onceesp o used the minority view but ap­K ENNEDY , J., dis s e nting 35 Cite as: 55 7 U

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Appendix B to opinion of K ENNEDY , J. pear to have changed course to some degree: Peoplev. Lewi s , 294Mich. 684 , 293 N. W. 907 (1940) (hospital record desc ribing vic t im’s in juries inadmissible hearsay), overruled by Kirtdoll , 391 Mich. , at 372, 217 N. W. 2d, at 39 (noting that “in its 35 year long history, Lewis . . . ha s never beenrelied upon to actually deny admission int o evidence of a business entry record in a criminal case” ) , but see Peo p le v. McDaniel , 469 Mich. 409, 670 N. W. 2d 659 (2003) (per cu riam ) (police laboratory rep o rt inadmissible hears a y); State v. Tims , 9 Ohio St. 2d 1 36, 137–138, 224 N. E. 2d 348, 350 (1967) (hospital record describing victim’s in juries inadmissible hearsay), overruled b y Spikes , 67 Ohio St. 2 d, at 411–415 , 423 N. E. 2d, at 1128– 1130; State v. Henderson , 554 S. W. 2d 117 (Tenn. 1977) (laboratorydrug report i nadmissible abs en t confronta

tion), abrogated by sta t ute as recognized byHugh es , 71 3 S. W. 2d 58 (statute permitted defendant to subpoena analyst wh o prepared blood alcoh o l report; by not doing so, defendant waived his right to con f ront the analyst).