Note

Confrontation Clause jurisprudence is always evolving. Please update your research by checking for the latest cases on your particular issue.

Constitutions

U.S. Constitution, 6th Amendment, Confrontation Clause 
"In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him."

Article 12 of the Massachusetts Declaration of Rights
In a criminal trial "every subject shall have a right to produce all proofs, that may be favorable to him [and] to meet the witnesses against him face to face."

United States Supreme Court cases

Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004)
Landmark case which re-defined the standard for the admissibility of hearsay evidence under the 6th Amendment. Rejecting the prior reliability test for the admissibility of out-of-court statements as set out in Ohio v. Roberts, 448 U.S. 56 (1980), the court held that the defendant must be afforded confrontation of testimonial statements at trial unless the witness is unavailable and there was a prior opportunity to cross-examine. "Testimonial statement" was not fully defined.

Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266 (2006): A 9-1-1 call can have non-testimonial and testimonial aspects. The hearsay is non-testimonial if the "primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency," but testimonial if "the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." See also, Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143 (2011) (dying victim's description of shooter was non-testimonial).

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527 (2009)
Affidavits reporting results of forensic analysis are testimonial because they are declarations made to prove a fact and made under circumstances in which an objective witness would reasonably believe that the statements would be available for use later at trial. Affidavits cannot be admitted in lieu of live testimony of forensic analysts subject to cross-examination, unless the witness is unavailable and there was a prior opportunity to cross-examine. Business records created for the administration of an entity's affairs are not testimonial, but if they are created to establish or prove some fact at trial, they are testimonial.

Bullcoming v. New Mexico, 564 U.S. 647, 131 S.Ct. 2705 (2011): Where a certified forensic blood-alcohol lab report is introduced as substantive evidence, the surrogate testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification does not satisfy the accused's right to confrontation. The accused has the right to confront the scientist who performed, observed, or supervised the analysis, unless the scientist is unavailable and there was a prior opportunity to cross-examine.

Williams v. Illinois, 567 U.S. 50, 132 S.Ct. 2221 (2012)
The disclosure of a forensic lab report through an expert witness who took no part in the analysis does not violate the 6th Amendment. Lab report provided the basis for the expert's opinion.

Ohio v. Clark, 576 U.S.1, 135 S.Ct. 2173 (2015)
Statements made by a 3 year-old boy to a teacher in response to her questions about his visible injuries were not testimonial because they were made in the context of an ongoing emergency to identify and end the threat of child abuse.  The primary purpose of the conversation was not to gather evidence for prosecution.  The Court also noted that “Statements by very young children will rarely, if ever, implicate the Confrontation Clause.”

First Circuit and Massachusetts cases

Commonwealth v. Greineder, 464 Mass. 580, cert. denied 571 U.S. 865 (2013)
Massachusetts evidentiary rules afford a defendant greater protection than the Sixth Amendment of the U.S. Constitution

 

Commonwealth v. Royal, 89 Mass. App. Ct. 168 (2016)
Discusses the distinction between "computer-generated" and "computer-stored" records, as well as a third class of "hybrid" reports, and the testimonial nature of each.

Commonwealth v. Tassone, 468 Mass. 391 (2014) 
"Where an opinion that DNA found at the crime scene matches the defendant's DNA profile is offered by an expert who is not affiliated with the laboratory where the testing of the crime scene DNA sample was conducted, and where no analyst from that laboratory testifies regarding that testing, a defendant effectively is denied the opportunity to explore through cross-examination whether the opinion is flawed."  The admission of this opinion "violated the right to confrontation provided by our common law of evidence." Compare Commonwealth v. Barry, 481 Mass. 388 (2019) (Testimony of DNA expert who participated in the analysis did not implicate Confrontation Clause.)

Commonwealth v. Wardsworth, 482 Mass. 454 (2019)
The Court rejected the 2-prong test previously set out in Commonwealth v. Gonsalves, 445 Mass. 1 (2005), and adopted the primary purpose test.  The statement is testimonial when its primary purpose is  to prove past events potentially relevant to later criminal prosecution.

Examples of non-testimonial evidence 

Commonwealth v. Fox, 81 Mass.App.Ct. 244, rev. denied 462 Mass. 1106 (2012)
SORB records were business records, and were not testimonial because they were not prepared to establish some fact at trial.

Commonwealth v. Shangkuan, 78 Mass. App. Ct. 827, rev. denied 459 Mass. 1111 (2011)
Return of service was admissible under the public records exception to the hearsay rule, and non-testimonial because it was not created to establish any fact at defendant's trial.

Commonwealth v. Smith, 460 Mass. 385 (2011)
Victim's statements to police in an emergency were non-testimonial. See also, Commonwealth v. Beatrice, 460 Mass. 255 (2011) (victim's statements during 9-1-1 call were non-testimonial).

Commonwealth v. Zeininger, 459 Mass. 775 (2011)
An annual certification, and accompanying diagnostic records, attesting to the proper functioning of the breathalyzer machine used to test a defendant's blood alcohol content were admissible as business records in a criminal prosecution for operating a motor vehicle while under the influence without the live testimony of the technician who had performed the certification test on the machine. The records were non-testimonial because they reflected the accuracy and standardization of the equipment whose use in criminal proceedings was merely ancillary, and were subordinate in importance to the administration of the laboratory's affairs.

Examples of testimonial evidence

Commonwealth v. Parenteau, 460 Mass. 1 (2011)
License revocation certificate attesting to the fact that notice of licensure suspension or revocation was mailed to defendant was testimonial. Certificate was created to prove notice at trial. Court stated that, had the RMV generated the notice at the time it was mailed to defendant as part of the administration of its regular business affairs, such notice would have been non-testimonial. Compare Commonwealth v. McEvoy, 93 Mass.App.Ct. 308, rev. denied 480 Mass. 1105 (2018) (RMV notice was non-testimonial because RMV generated it at the time it was mailed to defendant).

Commonwealth v. Rodriguez, 90 Mass.App.Ct. 315 (2016), rev. denied 476 Mass. 1110 (2017) 
Police officer's testimony about victim's statement to her was testimonial, but the defendant had had adequate opportunity to confront the victim at a pretrial hearing

Commonwealth v. Whitaker, 460 Mass. 409 (2011)
Hearsay opinion of absent fingerprint expert was testimonial and, therefore, erroneous to admit; but error was harmless beyond a reasonable doubt.

United States v. Ramos-Gonzalez, 664 F.3d 1 (1st Cir., 2011)
Admission of expert testimony which simply parroted drug analysis report, which was not independently admitted, violated defendant's right to confrontation.

Print sources

Confrontation & essential developments under Melendez-Diaz, MCLE, 2013 (program also available on audio CD-ROM)

"Constitutional evasion and the confrontation puzzle,"  56 Boston Coll. L. Rev. 1899 (2015)

"Into the rabbit-hole:  Annie Dookhan confronts Melendez-Diaz," 40 New Eng. J. on Crim. & Civ. Confinement 161 (2014) 

The most important recent developments in evidence law for criminal cases, MCLE, 2012.  Section 2: Experts & other end runs around the confrontation, pp. 29-57; and Section 4:  Crawford & the Emergency Doctrine:  Testimonial hypotheticals for Emergency Doctrine, pp. 177-193  (program also available on audio CD-ROM)

The rights of the accused under the Sixth Amendment:  trials, presentation of evidence, and confrontation, 2nd ed.  ABA, 2016.  Chapter 6:  The Confrontation Clause

"Tales of the dead:  why autopsy reports should be classified as testimonial,"  48 New Eng. L. Rev. 171 (2013)

"The untrustworthy chemist:  the trouble with expert witnesses and DNA evidence,"  42 New Eng. J. on Crim. & Civ. Confinement 143 (2016)

"Williams plurality relies on inherently unreliable forensic evidence:  confrontation clause analyses across the nation in disarray," 49 Suffolk U. L. Rev. 495 (2016)

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Last updated: October 11, 2019
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