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Cert Grant: Are Forensic Lab Reports "Testimonial" and Thus Subject to Crawford?

By Brad Bogan

Today the Supreme Court granted certiorari in Melendez-Diaz v. Massachusetts (No. 07-591), which presents the following question:

Whether a state forensic analyst's laboratory report prepared for use in a criminal prosecution is "testimonial" evidence subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004).

The Court's resolution of the question may extend beyond lab reports. As the cert petition notes, "courts holding that forensic reports are testimonial . . . reason that such reports are created solely for use in criminal prosecutions and present ex parte attestations aimed at helping to prove the defendant's guilt." That sounds an awful like like the certificate of non-existence that is commonly presented, in lieu of live testimony in illegal reentry cases, to establish that an alien had not received permission to reenter the United States. Or perhaps the use of a grand jury transcript to establish the predicate for the admission of a business record at trial. So think broadly, and preserve accordingly.

If you'd like to read the papers in the case for yourself, SCOTUSblog has helpfully collected the opinion of the Appeals Court of Massachusetts, cert petition, brief in opposition, petitioner's reply, and two amicus briefs in support of the petitioner.

Full post as published by Fifth Circuit Blog on March 17, 2008 (boomark / email).