MELENDEZ-DIAZ v. MASSACHUSETTS

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Syllabus
MELENDEZ-DIAZ v. MASSACHUSETTS
certiorari to the appeals court of massachusetts
No. 07–591. Argued November 10, 2008—Decided June 25, 2009
At petitioner’s state-court drug trial, the prosecution introduced certifi
cates of state laboratory analysts stating that material seized by police
and connected to petitioner was cocaine of a certain quantity. As re
quired by Massachusetts law, the certificates were sworn to before a
notary public and were submitted as prima facie evidence of what they
asserted. Petitioner objected, asserting that Crawford v. Washington,
541 U. S. 36, required the analysts to testify in person. The trial court
disagreed, the certificates were admitted, and petitioner was convicted.
The Massachusetts Appeals Court affirmed, rejecting petitioner’s claim
that the certificates’ admission violated the Sixth Amendment.
Held: The admission of the certificates violated petitioner’s Sixth Amend
ment right to confront the witnesses against him. Pp. 309–329.
(a) Under Crawford, a witness’s testimony against a defendant is in
admissible unless the witness appears at trial or, if the witness is un
available, the defendant had a prior opportunity for cross-examination.
541 U. S., at 54. The certificates here are affidavits, which fall within
the “core class of testimonial statements” covered by the Confrontation
Clause, id., at 51. They asserted that the substance found in petition
er’s possession was, as the prosecution claimed, cocaine of a certain
weight—the precise testimony the analysts would be expected to pro
vide if called at trial. Not only were the certificates made, as Crawford
required for testimonial statements, “under circumstances which would
lead an objective witness reasonably to believe that the statement would
be available for use at a later trial,” id., at 52, but under the relevant
Massachusetts law their sole purpose was to provide prima facie evi
dence of the substance’s composition, quality, and net weight. Peti
tioner was entitled to “be confronted with” the persons giving this
testimony at trial. Id., at 54. Pp. 309–311.
(b) The arguments advanced to avoid this rather straightforward
application of Crawford are rejected. Respondent’s claim that the ana
lysts are not subject to confrontation because they are not “accusatory”
witnesses finds no support in the Sixth Amendment’s text or in this
Court’s case law. The affiants’ testimonial statements were not “nearly
contemporaneous” with their observations, nor, if they had been, would
that fact alter the statements’ testimonial character. There is no sup
port for the proposition that witnesses who testify regarding facts other

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Syllabus
than those observed at the crime scene are exempt from confrontation.
The absence of interrogation is irrelevant; a witness who volunteers his
testimony is no less a witness for Sixth Amendment purposes. The
affidavits do not qualify as traditional official or business records. The
argument that the analysts should not be subject to confrontation be
cause their statements result from neutral scientific testing is little more
than an invitation to return to the since-overruled decision in Ohio v.
Roberts, 448 U. S. 56, 66, which held that evidence with “particularized
guarantees of trustworthiness” was admissible without confrontation.
Petitioner’s power to subpoena the analysts is no substitute for the right
of confrontation. Finally, the requirements of the Confrontation Clause
may not be relaxed because they make the prosecution’s task burden
some. In any event, the practice in many States already accords with
today’s decision, and the serious disruption predicted by respondent and
the dissent has not materialized. Pp. 312–328.
69 Mass. App. 1114, 870 N. E. 2d 676, reversed and remanded.
Scalia, J., delivered the opinion of the Court, in which Stevens, Sou
ter, Thomas, and Ginsburg, JJ., joined. Thomas, J., filed a concurring
opinion, post, p. 329. Kennedy, J., filed a dissenting opinion, in which
Roberts, C. J., and Breyer and Alito, JJ., joined, post, p. 330.
Jeffrey L. Fisher argued the cause for petitioner. With
him on the briefs were Pamela S. Karlan, Amy Howe, Kevin
K. Russell, Mary T. Rogers, and Thomas C. Goldstein.
Martha Coakley, Attorney General of Massachusetts, ar
gued the cause for respondent. With her on the brief were
James J. Arguin and David S. Friedman, Assistant Attor
neys General.
Lisa H. Schertler argued the cause for the United States
as amicus curiae urging affirmance. With her on the brief
were former Solicitor General Garre, Acting Assistant At
torney General Friedrich, and Deputy Solicitor General
Dreeben.*
*Briefs of amici curiae urging reversal were filed for Law Professors
by Donald B. Ayer, Christopher S. Perry, Samuel Estreicher, Meir Feder,
and Paul C. Giannelli, Edward J. Imwinkelried, and Robert P. Mosteller,
all pro se; for the National Association of Criminal Defense Lawyers et al.
by Jeffrey T. Green, Leonard R. Stamm, Frances H. Pratt, Donna F. Col
tharp, and Judith H. Mizner; for the National Innocence Network by Tim

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Opinion of the Court
Justice Scalia delivered the opinion of the Court.
The Massachusetts courts in this case admitted into evi
dence affidavits reporting the results of forensic analy
sis which showed that material seized by the police and
connected to the defendant was cocaine. The question pre
sented is whether those affidavits are “testimonial,” render
ing the affiants “witnesses” subject to the defendant’s right
of confrontation under the Sixth Amendment.
I
In 2001, Boston police officers received a tip that a Kmart
employee, Thomas Wright, was engaging in suspicious activ
othy P. O’Toole and Andrew T. Wise; and for Richard D. Friedman by
Mr. Friedman, pro se.
Briefs of amici curiae urging affirmance were filed for the State of
Alabama et al. by Troy King, Attorney General of Alabama, Corey L.
Maze, Solicitor General, and Margaret L. Fleming, Assistant Attorney
General, by Kevin T. Kane, Chief State’s Attorney of Connecticut, by
Peter J. Nickles, Acting Attorney General of the District of Columbia, and
by the Attorneys General for their respective States as follows: Talis J.
Colberg of Alaska, Terry Goddard of Arizona, Dustin McDaniel of Arkan
sas, John W. Suthers of Colorado, Joseph R. Biden III of Delaware, Bill
McCollum of Florida, Thurbert E. Baker of Georgia, Mark J. Bennett of
Hawaii, Lawrence G. Wasden of Idaho, Steve Carter of Indiana, Steve Six
of Kansas, Jack Conway of Kentucky, Douglas F. Gansler of Maryland,
Michael A. Cox of Michigan, Lori Swanson of Minnesota, Jim Hood of
Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Jon C. Bruning of Ne
braska, Catherine Cortez Masto of Nevada, Kelly Ayotte of New Hamp
shire, Anne Milgram of New Jersey, Gary K. King of New Mexico, Roy
Cooper of North Carolina, Nancy H. Rogers of Ohio, W. A. Drew Edmond
son of Oklahoma, Patrick C. Lynch of Rhode Island, Henry D. McMaster
of South Carolina, Lawrence E. Long of South Dakota, Robert E. Cooper,
Jr., of Tennessee, Mark L. Shurtleff of Utah, Robert F. McDonnell of
Virginia, Robert M. McKenna of Washington, and Bruce A. Salzburg of
Wyoming; and for the National District Attorneys Association et al. by
Mathias H. Heck, Jr., Daniel F. Conley, John P. Zanini, Macy Lee, Helle
Sachse, William D. Mason, Lisa Reitz Williamson, Lynne M. Abraham,
Hugh J. Burns, Jr., Andrew P. Thomas, Kym L. Worthy, Timothy A.
Baughman, David Roger, and Steven S. Owens.

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ity. The informant reported that Wright repeatedly re
ceived phone calls at work, after each of which he would be
picked up in front of the store by a blue sedan, and would
return to the store a short time later. The police set up
surveillance in the Kmart parking lot and witnessed this pre
cise sequence of events. When Wright got out of the car
upon his return, one of the officers detained and searched
him, finding four clear white plastic bags containing a sub
stance resembling cocaine. The officer then signaled other
officers on the scene to arrest the two men in the car—one
of whom was petitioner Luis Melendez-Diaz. The officers
placed all three men in a police cruiser.
During the short drive to the police station, the officers
observed their passengers fidgeting and making furtive
movements in the back of the car. After depositing the men
at the station, they searched the police cruiser and found a
plastic bag containing 19 smaller plastic bags hidden in the
partition between the front and back seats. They submitted
the seized evidence to a state laboratory required by law to
conduct chemical analysis upon police request. Mass. Gen.
Laws, ch. 111, § 12 (West 2006).
Melendez-Diaz was charged with distributing cocaine and
with trafficking in cocaine in an amount between 14 and 28
grams. Ch. 94C, §§ 32A, 32E(b)(1). At trial, the prosecu
tion placed into evidence the bags seized from Wright and
from the police cruiser. It also submitted three “certificates
of analysis” showing the results of the forensic analysis per
formed on the seized substances. The certificates reported
the weight of the seized bags and stated that the bags
“[h]a[ve] been examined with the following results: The
substance was found to contain: Cocaine.” App. to Pet. for
Cert. 24a, 26a, 28a. The certificates were sworn to before a
notary public by analysts at the State Laboratory Insti
tute of the Massachusetts Department of Public Health,
as required under Massachusetts law. Mass. Gen. Laws,
ch. 111, § 13.

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Petitioner objected to the admission of the certificates, as
serting that our Confrontation Clause decision in Crawford
v. Washington, 541 U. S. 36 (2004), required the analysts to
testify in person. The objection was overruled, and the cer
tificates were admitted pursuant to state law as “prima facie
evidence of the composition, quality, and the net weight of
the narcotic . . . analyzed.” Mass. Gen. Laws, ch. 111, § 13.
The jury found Melendez-Diaz guilty. He appealed, con
tending, among other things, that admission of the certifi
cates violated his Sixth Amendment right to be confronted
with the witnesses against him. The Appeals Court of Mas
sachusetts rejected the claim, affirmance order, 69 Mass.
App. 1114, 870 N. E. 2d 676, 2007 WL 2189152, *4, n. 3 (July
31, 2007), relying on the Massachusetts Supreme Judicial
Court’s decision in Commonwealth v. Verde, 444 Mass. 279,
283–285, 827 N. E. 2d 701, 705–706 (2005), which held that
the authors of certificates of forensic analysis are not subject
to confrontation under the Sixth Amendment. The Su
preme Judicial Court denied review. 449 Mass. 1113, 874
N. E. 2d 407 (2007). We granted certiorari. 552 U. S. 1256
(2008).
II
The Sixth Amendment to the United States Constitution,
made applicable to the States via the Fourteenth Amend
ment, Pointer v. Texas, 380 U. S. 400, 403 (1965), provides
that “[i]n all criminal prosecutions, the accused shall enjoy
the right . . . to be confronted with the witnesses against
him.” In Crawford, after reviewing the Clause’s historical
underpinnings, we held that it guarantees a defendant’s right
to confront those “who ‘bear testimony’ ” against him. 541
U. S., at 51. A witness’s testimony against a defendant is
thus inadmissible unless the witness appears at trial or, if
the witness is unavailable, the defendant had a prior oppor
tunity for cross-examination. Id., at 54.
Our opinion described the class of testimonial statements
covered by the Confrontation Clause as follows:

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“Various formulations of this core class of testimonial
statements exist: ex parte in-court testimony or its func
tional equivalent—that is, material such as affidavits,
custodial examinations, prior testimony that the defend
ant was unable to cross-examine, or similar pretrial
statements that declarants would reasonably expect to
be used prosecutorially; extrajudicial statements . . .
contained in formalized testimonial materials, such as
affidavits, depositions, prior testimony, or confessions;
statements that were made under circumstances which
would lead an objective witness reasonably to believe
that the statement would be available for use at a later
trial.” Id., at 51–52 (internal quotation marks and cita
tions omitted).
There is little doubt that the documents at issue in this
case fall within the “core class of testimonial statements”
thus described. Our description of that category mentions
affidavits twice. See also White v. Illinois, 502 U. S. 346,
365 (1992) (Thomas, J., concurring in part and concurring
in judgment) (“[T]he Confrontation Clause is implicated by
extrajudicial statements only insofar as they are contained
in formalized testimonial materials, such as affidavits, dep
ositions, prior testimony, or confessions”). The docu
ments at issue here, while denominated by Massachusetts
law “certificates,” are quite plainly affidavits: “declaration[s]
of facts written down and sworn to by the declarant before
an officer authorized to administer oaths.” Black’s Law Dic
tionary 62 (8th ed. 2004). They are incontrovertibly a “ ‘sol
emn declaration or affirmation made for the purpose of
establishing or proving some fact.’ ” Crawford, supra, at 51
(quoting 2 N. Webster, An American Dictionary of the Eng
lish Language (1828)). The fact in question is that the sub
stance found in the possession of Melendez-Diaz and his
codefendants was, as the prosecution claimed, cocaine—the
precise testimony the analysts would be expected to provide
if called at trial. The “certificates” are functionally identical

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to live, in-court testimony, doing “precisely what a witness
does on direct examination.” Davis v. Washington, 547
U. S. 813, 830 (2006) (emphasis deleted).
Here, moreover, not only were the affidavits “ ‘made under
circumstances which would lead an objective witness rea
sonably to believe that the statement would be available
for use at a later trial,’ ” Crawford, supra, at 52, but under
Massachusetts law the sole purpose of the affidavits was to
provide “prima facie evidence of the composition, quality, and
the net weight” of the analyzed substance, Mass. Gen. Laws,
ch. 111, § 13. We can safely assume that the analysts were
aware of the affidavits’ evidentiary purpose, since that pur
pose—as stated in the relevant state-law provision—was re
printed on the affidavits themselves. See App. to Pet. for
Cert. 25a, 27a, 29a.
In short, under our decision in Crawford the analysts’ af
fidavits were testimonial statements, and the analysts were
“witnesses” for purposes of the Sixth Amendment. Absent
a showing that the analysts were unavailable to testify at
trial and that petitioner had a prior opportunity to cross
examine them, petitioner was entitled to “ ‘be confronted
with’ ” the analysts at trial. Crawford, supra, at 54.1
1 Contrary to the dissent’s suggestion, post, at 332–333, 335–336 (opinion
of Kennedy, J.), we do not hold, and it is not the case, that anyone whose
testimony may be relevant in establishing the chain of custody, authentic
ity of the sample, or accuracy of the testing device, must appear in person
as part of the prosecution’s case. While the dissent is correct that “[i]t is
the obligation of the prosecution to establish the chain of custody,” post,
at 335, this does not mean that everyone who laid hands on the evidence
must be called. As stated in the dissent’s own quotation, post, at 336,
from United States v. Lott, 854 F. 2d 244, 250 (CA7 1988), “gaps in the
chain [of custody] normally go to the weight of the evidence rather than
its admissibility.” It is up to the prosecution to decide what steps in the
chain of custody are so crucial as to require evidence; but what testi
mony is introduced must (if the defendant objects) be introduced live.
Additionally, documents prepared in the regular course of equipment
maintenance may well qualify as nontestimonial records. See infra, at
321–322, 324.

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III
Respondent and the dissent advance a potpourri of ana
lytic arguments in an effort to avoid this rather straight
forward application of our holding in Crawford. Before
addressing them, however, we must assure the reader of the
falsity of the dissent’s opening alarum that we are “sweep
[ing] away an accepted rule governing the admission of scien
tific evidence” that has been “established for at least 90
years” and “extends across at least 35 States and six Federal
Courts of Appeals.” Post, at 330.
The vast majority of the state-court cases the dissent cites
in support of this claim come not from the last 90 years, but
from the last 30, and not surprisingly nearly all of them rely
on our decision in Ohio v. Roberts, 448 U. S. 56 (1980), or
its since-rejected theory that unconfronted testimony was
admissible as long as it bore indicia of reliability, id., at 66.
See post, at 357–358.2 As for the six Federal Courts of Ap
peals cases cited by the dissent, five of them postdated and
expressly relied on Roberts. See post, at 349–350. The
sixth predated Roberts but relied entirely on the same erro
neous theory. See Kay v. United States, 255 F. 2d 476, 480–
481 (CA4 1958) (rejecting Confrontation Clause challenge
“where there is reasonable necessity for [the evidence] and
where . . . the evidence has those qualities of reliability and
trustworthiness”).
A review of cases that predate the Roberts era yields a
mixed picture. As the dissent notes, three State Supreme
Court decisions from the early 20th century denied confron
tation with respect to certificates of analysis regarding a
2 The exception is a single pre-Roberts case that relied on longstanding
Massachusetts precedent. See Commonwealth v. Harvard, 356 Mass.
452, 462, 253 N. E. 2d 346, 352 (1969). Others are simply irrelevant, since
they involved medical reports created for treatment purposes, which
would not be testimonial under our decision today. See, e. g., Baber v.
State, 775 So. 2d 258, 258–259 (Fla. 2000); State v. Garlick, 313 Md. 209,
223–225, 545 A. 2d 27, 34–35 (1988).

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substance’s alcohol content. See post, at 349 (citing cases
from Massachusetts, Connecticut, and Virginia). But other
state courts in the same era reached the opposite conclusion.
See Torres v. State, 113 Tex. Crim. 1, 2–4, 18 S. W. 2d 179,
180 (1929); Volrich v. State, 4 Ohio L. Abs. 253 (App. 1925)
(per curiam). At least this much is entirely clear: In faith
fully applying Crawford to the facts of this case, we are not
overruling 90 years of settled jurisprudence. It is the dis
sent that seeks to overturn precedent by resurrecting Rob
erts a mere five years after it was rejected in Crawford.
We turn now to the various legal arguments raised by re
spondent and the dissent.
A
Respondent first argues that the analysts are not subject
to confrontation because they are not “accusatory” wit
nesses, in that they do not directly accuse petitioner of
wrongdoing; rather, their testimony is inculpatory only when
taken together with other evidence linking petitioner to the
contraband. See Brief for Respondent 10. This finds no
support in the text of the Sixth Amendment or in our
case law.
The Sixth Amendment guarantees a defendant the right
“to be confronted with the witnesses against him.” (Em
phasis added.) To the extent the analysts were witnesses (a
question resolved above), they certainly provided testimony
against petitioner, proving one fact necessary for his convic
tion—that the substance he possessed was cocaine. The
contrast between the text of the Confrontation Clause and
the text of the adjacent Compulsory Process Clause confirms
this analysis. While the Confrontation Clause guarantees a
defendant the right to be confronted with the witnesses
“against him,” the Compulsory Process Clause guarantees a
defendant the right to call witnesses “in his favor.” U. S.
Const., Amdt. 6. The text of the Amendment contemplates
two classes of witnesses—those against the defendant and
those in his favor. The prosecution must produce the for

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mer; 3 the defendant may call the latter. Contrary to re
spondent’s assertion, there is not a third category of wit
nesses, helpful to the prosecution, but somehow immune
from confrontation.
It is often, indeed perhaps usually, the case that an ad
verse witness’s testimony, taken alone, will not suffice to con
vict. Yet respondent fails to cite a single case in which such
testimony was admitted absent a defendant’s opportunity to
cross-examine.4 Unsurprisingly, since such a holding would
be contrary to longstanding case law. In Kirby v. United
States, 174 U. S. 47 (1899), the Court considered Kirby’s con
viction for receiving stolen property, the evidence for which
consisted, in part, of the records of conviction of three indi
viduals who were found guilty of stealing the relevant prop
erty. Id., at 53. Though this evidence proved only that the
property was stolen, and not that Kirby received it, the
Court nevertheless ruled that admission of the records vio
lated Kirby’s rights under the Confrontation Clause. Id.,
at 55. See also King v. Turner, 1 Mood. 347, 168 Eng. Rep.
1298 (1832) (confession by one defendant to having stolen cer
tain goods could not be used as evidence against another de
fendant accused of receiving the stolen property).
3 The right to confrontation may, of course, be waived, including by fail
ure to object to the offending evidence; and States may adopt procedural
rules governing the exercise of such objections. See infra, at 327.
4 Respondent cites our decision in Gray v. Maryland, 523 U. S. 185
(1998). That case did indeed distinguish between evidence that is “in
criminating on its face” and evidence that “bec[omes] incriminating . . .
only when linked with evidence introduced later at trial,” id., at 191 (inter
nal quotation marks omitted). But it did so for the entirely different pur
pose of determining when a nontestifying codefendant’s confession, re
dacted to remove all mention of the defendant, could be admitted into
evidence with instruction for the jury not to consider the confession as
evidence against the nonconfessor. The very premise of the case was
that, without the limiting instruction even admission of a redacted confes
sion containing evidence of the latter sort would have violated the defend
ant’s Sixth Amendment rights. See id., at 190–191.

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B
Respondent and the dissent argue that the analysts should
not be subject to confrontation because they are not “conven
tional” (or “typical” or “ordinary”) witnesses of the sort
whose ex parte testimony was most notoriously used at the
trial of Sir Walter Raleigh. Post, at 343–345; Brief for Re
spondent 28. It is true, as the Court recognized in Craw
ford, that ex parte examinations of the sort used at Raleigh’s
trial have “long been thought a paradigmatic confrontation
violation.” 541 U. S., at 52. But the paradigmatic case
identifies the core of the right to confrontation, not its limits.
The right to confrontation was not invented in response to
the use of the ex parte examinations in Raleigh’s Case, 2
How. St. Tr. 1 (1603). That use provoked such an outcry
precisely because it flouted the deeply rooted common-law
tradition “of live testimony in court subject to adversarial
testing.” Crawford, supra, at 43 (citing 3 W. Blackstone,
Commentaries on the Laws of England 373–374 (1768)).
See also Crawford, supra, at 43–47.
In any case, the purported distinctions respondent and the
dissent identify between this case and Sir Walter Raleigh’s
“conventional” accusers do not survive scrutiny. The dis
sent first contends that a “conventional witness recalls
events observed in the past, while an analyst’s report
contains near-contemporaneous observations of the test.”
Post, at 345. It is doubtful that the analyst’s reports
in this case could be characterized as reporting “near
contemporaneous observations”; the affidavits were com
pleted almost a week after the tests were performed. See
App. to Pet. for Cert. 24a–29a (the tests were performed on
November 28, 2001, and the affidavits sworn on December 4,
2001). But regardless, the dissent misunderstands the role
that “near-contemporaneity” has played in our case law.
The dissent notes that that factor was given “substantial
weight” in Davis, post, at 345, but in fact that decision dis
proves the dissent’s position. There the Court considered

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the admissibility of statements made to police officers re
sponding to a report of a domestic disturbance. By the time
officers arrived the assault had ended, but the victim’s state
ments—written and oral—were sufficiently close in time to
the alleged assault that the trial court admitted her affidavit
as a “present sense impression.” 547 U. S., at 820 (internal
quotation marks omitted). Though the witness’s statements
in Davis were “near-contemporaneous” to the events she re
ported, we nevertheless held that they could not be admitted
absent an opportunity to confront the witness. Id., at 830.
A second reason the dissent contends that the analysts are
not “conventional witnesses” (and thus not subject to con
frontation) is that they “observe[d] neither the crime nor any
human action related to it.” Post, at 345. The dissent pro
vides no authority for this particular limitation of the type
of witnesses subject to confrontation. Nor is it conceivable
that all witnesses who fit this description would be outside
the scope of the Confrontation Clause. For example, is a
police officer’s investigative report describing the crime
scene admissible absent an opportunity to examine the offi
cer? The dissent’s novel exception from coverage of the
Confrontation Clause would exempt all expert witnesses—a
hardly “unconventional” class of witnesses.
A third respect in which the dissent asserts that the ana
lysts are not “conventional” witnesses and thus not subject
to confrontation is that their statements were not provided in
response to interrogation. Post, at 345–346. See also Brief
for Respondent 29. As we have explained, “[t]he Framers
were no more willing to exempt from cross-examination vol
unteered testimony or answers to open-ended questions than
they were to exempt answers to detailed interrogation.”
Davis, supra, at 822–823, n. 1. Respondent and the dissent
cite no authority, and we are aware of none, holding that a
person who volunteers his testimony is any less a “ ‘witness
against’ the defendant,” Brief for Respondent 26, than one
who is responding to interrogation. In any event, the ana

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lysts’ affidavits in this case were presented in response to a
police request. See Mass. Gen. Laws, ch. 111, §§ 12–13. If
an affidavit submitted in response to a police officer’s request
to “write down what happened” suffices to trigger the Sixth
Amendment’s protection (as it apparently does, see Davis,
547 U. S., at 819–820; id., at 840, n. 5 (Thomas, J., concurring
in judgment in part and dissenting in part)), then the ana
lysts’ testimony should be subject to confrontation as well.
C
Respondent claims that there is a difference, for Confron
tation Clause purposes, between testimony recounting his
torical events, which is “prone to distortion or manipulation,”
and the testimony at issue here, which is the “resul[t] of neu
tral, scientific testing.” Brief for Respondent 29. Relat
edly, respondent and the dissent argue that confrontation of
forensic analysts would be of little value because “one would
not reasonably expect a laboratory professional . . . to feel
quite differently about the results of his scientific test by
having to look at the defendant.” Id., at 31 (internal quota
tion marks omitted); see post, at 339.
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 trustwor
thiness” was admissible notwithstanding the Confrontation
Clause. Id., at 66. What we said in Crawford in response
to that argument remains true:
“To be sure, the Clause’s ultimate goal is to ensure relia
bility of evidence, but it is a procedural rather than
a substantive guarantee. It commands, not that evi
dence be reliable, but that reliability be assessed in
a particular manner: by testing in the crucible of
cross-examination. . . .
. . . . .
“Dispensing with confrontation because testimony is ob
viously reliable is akin to dispensing with jury trial be

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cause a defendant is obviously guilty. This is not what
the Sixth Amendment prescribes.” 541 U. S., at 61–62.
Respondent and the dissent may be right that there are
other ways—and in some cases better ways—to challenge or
verify the results of a forensic test.5 But the Constitution
guarantees one way: confrontation. We do not have license
to suspend the Confrontation Clause when a preferable trial
strategy is available.
Nor is it evident that what respondent calls “neutral scien
tific testing” is as neutral or as reliable as respondent sug
gests. Forensic evidence is not uniquely immune from the
risk of manipulation. According to a recent study conducted
under the auspices of the National Academy of Sciences,
“[t]he majority of [laboratories producing forensic evidence]
are administered by law enforcement agencies, such as police
departments, where the laboratory administrator reports to
the head of the agency.” National Research Council of the
National Academies, Strengthening Forensic Science in the
United States: A Path Forward 183 (2009) (hereinafter Na
tional Academy Report). And “[b]ecause forensic scientists
often are driven in their work by a need to answer a particu
lar question related to the issues of a particular case, they
sometimes face pressure to sacrifice appropriate methodol
ogy for the sake of expediency.” Id., at 23–24. A forensic
analyst responding to a request from a law enforcement offi
cial may feel pressure—or have an incentive—to alter the
evidence in a manner favorable to the prosecution.
Confrontation is one means of ensuring accurate forensic
analysis. While it is true, as the dissent notes, that an hon
est analyst will not alter his testimony when forced to con
front the defendant, post, at 339, the same cannot be said
of the fraudulent analyst. See Brief for National Innocence
5 Though surely not always. Some forensic analyses, such as autopsies
and breathalyzer tests, cannot be repeated, and the specimens used for
other analyses have often been lost or degraded.

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Network as Amicus Curiae 15–17 (discussing cases of docu
mented “drylabbing” where forensic analysts report results
of tests that were never performed); National Academy Re
port 44–48 (discussing documented cases of fraud and error
involving the use of forensic evidence). Like the eyewitness
who has fabricated his account to the police, the analyst who
provides false results may, under oath in open court, recon
sider his false testimony. See Coy v. Iowa, 487 U. S. 1012,
1019 (1988). And, of course, the prospect of confrontation
will deter fraudulent analysis in the first place.
Confrontation is designed to weed out not only the fraudu
lent analyst, but the incompetent one as well. Serious defi
ciencies have been found in the forensic evidence used in
criminal trials. One commentator asserts that “[t]he legal
community now concedes, with varying degrees of urgency,
that our system produces erroneous convictions based on dis
credited forensics.” Metzger, Cheating the Constitution, 59
Vand. L. Rev. 475, 491 (2006). One study of cases in which
exonerating evidence resulted in the overturning of criminal
convictions concluded that invalid forensic testimony con
tributed to the convictions in 60% of the cases. Garrett &
Neufeld, Invalid Forensic Science Testimony and Wrongful
Convictions, 95 Va. L. Rev. 1, 14 (2009). And the National
Academy Report concluded:
“The forensic science system, encompassing both re
search and practice, has serious problems that can only
be addressed by a national commitment to overhaul the
current structure that supports the forensic science
community in this country.” National Academy Re
port, at xx.6
6 Contrary to the dissent’s suggestion, post, at 351, we do not “rel[y] in
such great measure” on the deficiencies of crime-lab analysts shown by
this report to resolve the constitutional question presented in this case.
The analysts who swore the affidavits provided testimony against
Melendez-Diaz, and they are therefore subject to confrontation; we would
reach the same conclusion if all analysts always possessed the scientific

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Like expert witnesses generally, an analyst’s lack of proper
training or deficiency in judgment may be disclosed in
cross-examination.
This case is illustrative. The affidavits submitted by the
analysts contained only the bare-bones statement that “[t]he
substance was found to contain: Cocaine.” App. to Pet. for
Cert. 24a, 26a, 28a. At the time of trial, petitioner did not
know what tests the analysts performed, whether those tests
were routine, and whether interpreting their results re
quired the exercise of judgment or the use of skills that the
analysts may not have possessed. While we still do not
know the precise tests used by the analysts, we are told that
the laboratories use “methodology recommended by the Sci
entific Working Group for the Analysis of Seized Drugs,”
App. to Brief for Petitioner 1a–2a. At least some of that
methodology requires the exercise of judgment and presents
a risk of error that might be explored on cross-examination.
See 2 P. Giannelli & E. Imwinkelried, Scientific Evidence
§ 23.03[c], pp. 532–533, and ch. 23A, p. 607 (4th ed. 2007)
(identifying four “critical errors” that analysts may commit
in interpreting the results of the commonly used gas chroma
tography/mass spectrometry analysis); Shellow, The Applica
tion of Daubert to the Identification of Drugs, 2 Shepard’s
Expert & Scientific Evidence Quarterly 593, 600 (1995) (not
ing that while spectrometers may be equipped with compu
terized matching systems, “forensic analysts in crime labora
tories typically do not utilize this feature of the instrument,
but rely exclusively on their subjective judgment”).
The same is true of many of the other types of forensic
evidence commonly used in criminal prosecutions. “[T]here
is wide variability across forensic science disciplines with re
gard to techniques, methodologies, reliability, types and
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.

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numbers of potential errors, research, general acceptability,
and published material.” National Academy Report 6–7.
See also id., at 138–139, 142–143, 154–155 (discussing prob
lems of subjectivity, bias, and unreliability of common fo
rensic tests such as latent fingerprint analysis, pattern/
impression analysis, and toolmark and firearms analysis).
Contrary to respondent’s and the dissent’s suggestion, there
is little reason to believe that confrontation will be useless
in testing analysts’ honesty, proficiency, and methodology—
the features that are commonly the focus in the cross
examination of experts.
D
Respondent argues that the analysts’ affidavits are admis
sible without confrontation because they are “akin to the
types of official and business records admissible at common
law.” Brief for Respondent 35. But the affidavits do not
qualify as traditional official or business records, and even if
they did, their authors would be subject to confrontation
nonetheless.
Documents kept in the regular course of business may or
dinarily be admitted at trial despite their hearsay status.
See Fed. Rule Evid. 803(6). But that is not the case if the
regularly conducted business activity is the production of ev
idence for use at trial. Our decision in Palmer v. Hoffman,
318 U. S. 109 (1943), made that distinction clear. There we
held that an accident report provided by an employee of
a railroad company did not qualify as a business record
because, although kept in the regular course of the rail
road’s operations, it was “calculated for use essentially in
the court, not in the business.” Id., at 114.7 The analysts’
7 The early common-law cases likewise involve records prepared for the
administration of an entity’s affairs, and not for use in litigation. See,
e. g., King v. Rhodes, 1 Leach 24, 168 Eng. Rep. 115 (1742) (admitting into
evidence ship’s musterbook); King v. Martin, 2 Camp. 100, 101, 170 Eng.
Rep. 1094, 1095 (1809) (vestrybook); King v. Aickles, 1 Leach 390, 391–392,
168 Eng. Rep. 297, 298 (1785) (prison logbook).

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certificates—like police reports generated by law enforce
ment officials—do not qualify as business or public records
for precisely the same reason. See Rule 803(8) (defining
public records as “excluding, however, in criminal cases mat
ters observed by police officers and other law enforcement
personnel”).
Respondent seeks to rebut this limitation by noting that
at common law the results of a coroner’s inquest were admis
sible without an opportunity for confrontation. But as we
have previously noted, whatever the status of coroner’s re
ports at common law in England, they were not accorded
any special status in American practice. See Crawford, 541
U. S., at 47, n. 2; Giles v. California, 554 U. S. 353, 399–400
(2008) (Breyer, J., dissenting); Note, Evidence—Official
Records—Coroner’s Inquest, 65 U. Pa. L. Rev. 290 (1917).
The dissent identifies a single class of evidence which,
though prepared for use at trial, was traditionally admissi
ble: a clerk’s certificate authenticating an official record—or
a copy thereof—for use as evidence. See post, at 347. But
a clerk’s authority in that regard was narrowly circum
scribed. He was permitted “to certify to the correctness of
a copy of a record kept in his office,” but had “no authority
to furnish, as evidence for the trial of a lawsuit, his interpre
tation of what the record contains or shows, or to certify to
its substance or effect.” State v. Wilson, 141 La. 404, 409,
75 So. 95, 97 (1917). See also State v. Champion, 116 N. C.
987, 988–989, 21 S. E. 700, 700–701 (1895); 5 J. Wigmore, Evi
dence § 1678 (3d ed. 1940). The dissent suggests that the
fact that this exception was “ ‘narrowly circumscribed’ ”
makes no difference. See post, at 348. To the contrary, it
makes all the difference in the world. It shows that even
the line of cases establishing the one narrow exception the
dissent has been able to identify simultaneously vindicates
the general rule applicable to the present case. A clerk
could by affidavit authenticate or provide a copy of an other

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wise admissible record, but could not do what the analysts
did here: create a record for the sole purpose of providing
evidence against a defendant.8
Far more probative here are those cases in which the
prosecution sought to admit into evidence a clerk’s certificate
attesting to the fact that the clerk had searched for a particu
lar relevant record and failed to find it. Like the testimony
of the analysts in this case, the clerk’s statement would serve
as substantive evidence against the defendant whose guilt
depended on the nonexistence of the record for which the
clerk searched. Although the clerk’s certificate would qual
ify as an official record under respondent’s definition—it was
prepared by a public officer in the regular course of his offi
cial duties—and although the clerk was certainly not a “con
ventional witness” under the dissent’s approach, the clerk
was nonetheless subject to confrontation. See People v.
Bromwich, 200 N. Y. 385, 388–389, 93 N. E. 933, 934 (1911);
People v. Goodrode, 132 Mich. 542, 547, 94 N. W. 14, 16 (1903);
Wigmore, supra, § 1678.9
8 The dissent’s reliance on our decision in Dowdell v. United States, 221
U. S. 325 (1911), see post, at 348–349, is similarly misplaced. As the opin
ion stated in Dowdell—and as this Court noted in Davis v. Washington,
547 U. S. 813, 825 (2006)—the judge and clerk who made the statements
at issue in Dowdell were not witnesses for purposes of the Confrontation
Clause because their statements concerned only the conduct of defendants’
prior trial, not any facts regarding defendants’ guilt or innocence. 221
U. S., at 330–331.
9 An earlier line of 19th-century state-court cases also supports the no
tion that forensic analysts’ certificates were not admitted into evidence as
public or business records. See Commonwealth v. Waite, 93 Mass. 264,
266 (1865); Shivers v. Newton, 45 N. J. L. 469, 476 (Sup. Ct. 1883); State v.
Campbell, 64 N. H. 402, 403, 13 A. 585, 586 (1888). In all three cases,
defendants—who were prosecuted for selling adulterated milk—objected
to the admission of the state chemists’ certificates of analysis. In all three
cases, the objection was defeated because the chemist testified live at trial.
That the prosecution came forward with live witnesses in all three cases
suggests doubt as to the admissibility of the certificates without opportu
nity for cross-examination.

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Respondent also misunderstands the relationship between
the business-and-official-records hearsay exceptions and the
Confrontation Clause. As we stated in Crawford: “Most of
the hearsay exceptions covered statements that by their na
ture were not testimonial—for example, business records or
statements in furtherance of a conspiracy.” 541 U. S., at 56.
Business and public records are generally admissible absent
confrontation not because they qualify under an exception to
the hearsay rules, but because—having been created for the
administration of an entity’s affairs and not for the purpose
of establishing or proving some fact at trial—they are not
testimonial. Whether or not they qualify as business or of
ficial records, the analysts’ statements here—prepared spe
cifically for use at petitioner’s trial—were testimony against
petitioner, and the analysts were subject to confrontation
under the Sixth Amendment.
E
Respondent asserts that we should find no Confrontation
Clause violation in this case because petitioner had the abil
ity to subpoena the analysts. But that power—whether
pursuant to state law or the Compulsory Process Clause—
is no substitute for the right of confrontation. Unlike the
Confrontation Clause, those provisions are of no use to the
defendant when the witness is unavailable or simply refuses
to appear. See, e. g., Davis, 547 U. S., at 820 (“[The witness]
was subpoenaed, but she did not appear at . . . trial”). Con
verting the prosecution’s duty under the Confrontation
Clause into the defendant’s privilege under state law or
the Compulsory Process Clause shifts the consequences of
adverse-witness no-shows from the State to the accused.
More fundamentally, the Confrontation Clause imposes a
burden on the prosecution to present its witnesses, not on
the defendant to bring those adverse witnesses into court.
Its value to the defendant is not replaced by a system in
which the prosecution presents its evidence via ex parte af

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fidavits and waits for the defendant to subpoena the affiants
if he chooses.
F
Finally, respondent asks us to relax the requirements of
the Confrontation Clause to accommodate the “ ‘necessities
of trial and the adversary process.’ ” Brief for Respondent
59. It is not clear whence we would derive the authority to
do so. The Confrontation Clause may make the prosecution
of criminals more burdensome, but that is equally true of the
right to trial by jury and the privilege against self
incrimination. The Confrontation Clause—like those other
constitutional provisions—is binding, and we may not disre
gard it at our convenience.
We also doubt the accuracy of respondent’s and the dis
sent’s dire predictions. The dissent, respondent, and its
amici highlight the substantial total number of controlled
substance analyses performed by state and federal labora
tories in recent years. But only some of those tests are im
plicated in prosecutions, and only a small fraction of those
cases actually proceed to trial. See Brief for Law Profes
sors as Amici Curiae 7–8 (nearly 95% of convictions in state
and federal courts are obtained via guilty plea).10
Perhaps the best indication that the sky will not fall after
today’s decision is that it has not done so already. Many
States have already adopted the constitutional rule we an
10 The dissent provides some back-of-the-envelope calculations regarding
the number of court appearances that will result from today’s ruling.
Post, at 342. Those numbers rely on various unfounded assumptions:
that the prosecution will place into evidence a drug analysis certificate in
every case; that the defendant will never stipulate to the nature of the
controlled substance; that even where no such stipulation is made, every
defendant will object to the evidence or otherwise demand the appearance
of the analyst. These assumptions are wildly unrealistic, and, as dis
cussed below, the figures they produce do not reflect what has in fact
occurred in those jurisdictions that have already adopted the rule we an
nounce today.

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nounce today,11 while many others permit the defendant to
assert (or forfeit by silence) his Confrontation Clause right
after receiving notice of the prosecution’s intent to use a
forensic analyst’s report, id., at 13–15 (cataloging such state
laws). Despite these widespread practices, there is no evi
dence that the criminal justice system has ground to a halt
in the States that, one way or another, empower a defendant
to insist upon the analyst’s appearance at trial. Indeed, in
Massachusetts itself, a defendant may subpoena the analyst
to appear at trial, see Brief for Respondent 57, and yet there
is no indication that obstructionist defendants are abusing
the privilege.
The dissent finds this evidence “far less reassuring than
promised.” Post, at 356. But its doubts rest on two flawed
premises. First, the dissent believes that those state stat
utes “requiring the defendant to give early notice of his in
tent to confront the analyst” are “burden-shifting statutes
[that] may be invalidated by the Court’s reasoning.” Post,
at 350, 356. That is not so. In their simplest form, notice
and-demand statutes require the prosecution to provide no
tice to the defendant of its intent to use an analyst’s report
as evidence at trial, after which the defendant is given a
period of time in which he may object to the admission of
the evidence absent the analyst’s appearance live at trial.
See, e. g., Ga. Code Ann. § 35–3–154.1 (2006); Tex. Code Crim.
Proc. Ann., Art. 38.41, § 4 (Vernon 2005); Ohio Rev. Code
Ann. § 2925.51(C) (Lexis 2006). Contrary to the dissent’s
11 State v. Johnson, 982 So. 2d 672, 680–681 (Fla. 2008); Hinojos-
Mendoza v. People, 169 P. 3d 662, 666–667 (Colo. 2007); State v. Birchfield,
342 Ore. 624, 631–632, 157 P. 3d 216, 220 (2007); State v. March, 216 S. W.
3d 663, 666–667 (Mo. 2007); Thomas v. United States, 914 A. 2d 1, 12–13
(D. C. 2006); State v. Caulfield, 722 N. W. 2d 304, 310 (Minn. 2006); Las
Vegas v. Walsh, 121 Nev. 899, 904–906, 124 P. 3d 203, 207–208 (2005); People
v. McClanahan, 191 Ill. 2d 127, 133–134, 729 N. E. 2d 470, 474–475 (2000);
Miller v. State, 266 Ga. 850, 854–855, 472 S. E. 2d 74, 78–79 (1996); Bar
nette v. State, 481 So. 2d 788, 792 (Miss. 1985).

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perception, these statutes shift no burden whatever. The
defendant always has the burden of raising his Confronta
tion Clause objection; notice-and-demand statutes simply
govern the time within which he must do so. States are
free to adopt procedural rules governing objections. See
Wainwright v. Sykes, 433 U. S. 72, 86–87 (1977). It is com
mon to require a defendant to exercise his rights under the
Compulsory Process Clause in advance of trial, announcing
his intent to present certain witnesses. See Fed. Rules
Crim. Proc. 12.1(a), (e), 16(b)(1)(C); Comment, Alibi Notice
Rules: The Preclusion Sanction as Procedural Default, 51 U.
Chi. L. Rev. 254, 254–255, 281–285 (1984) (discussing and cat
aloging state notice-of-alibi rules); Taylor v. Illinois, 484
U. S. 400, 411 (1988); Williams v. Florida, 399 U. S. 78, 81–82
(1970). There is no conceivable reason why he cannot simi
larly be compelled to exercise his Confrontation Clause
rights before trial. See Hinojos-Mendoza v. People, 169 P.
3d 662, 670 (Colo. 2007) (discussing and approving Colorado’s
notice-and-demand provision). Today’s decision will not dis
rupt criminal prosecutions in the many large States whose
practice is already in accord with the Confrontation Clause.12
Second, the dissent notes that several of the state-court
cases that have already adopted this rule did so pursuant to
our decision in Crawford, and not “independently . . . as a
matter of state law.” Post, at 356. That may be so. But in
12 As the dissent notes, post, at 355, some state statutes “requir[e] de
fense counsel to subpoena the analyst, to show good cause for demanding
the analyst’s presence, or even to affirm under oath an intent to cross
examine the analyst.” We have no occasion today to pass on the constitu
tionality of every variety of statute commonly given the notice-and
demand label. It suffices to say that what we have referred to as the
“simplest form [of] notice-and-demand statutes,” supra, at 326, is constitu
tional; that such provisions are in place in a number of States; and that
in those States, and in other States that require confrontation without
notice-and-demand, there is no indication that the dire consequences pre
dicted by the dissent have materialized.

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assessing the likely practical effects of today’s ruling, it is
irrelevant why those courts adopted this rule; it matters only
that they did so. It is true that many of these decisions are
recent, but if the dissent’s dire predictions were accurate,
and given the large number of drug prosecutions at the state
level, one would have expected immediate and dramatic re
sults. The absence of such evidence is telling.
But it is not surprising. Defense attorneys and their cli
ents will often stipulate to the nature of the substance in the
ordinary drug case. It is unlikely that defense counsel will
insist on live testimony whose effect will be merely to high
light rather than cast doubt upon the forensic analysis. Nor
will defense attorneys want to antagonize the judge or jury
by wasting their time with the appearance of a witness
whose testimony defense counsel does not intend to rebut in
any fashion.13 The amicus brief filed by district attorneys
in support of the Commonwealth in the Massachusetts Su
preme Judicial Court case upon which the Appeals Court here
relied said that “it is almost always the case that [analysts’
certificates] are admitted without objection. Generally, de
fendants do not object to the admission of drug certificates
most likely because there is no benefit to a defendant from
such testimony.” Brief for District Attorneys in Support of
the Commonwealth in No. SJC–09320 (Mass.), p. 7 (footnote
omitted). Given these strategic considerations, and in light
of the experience in those States that already provide the
same or similar protections to defendants, there is little rea
son to believe that our decision today will commence the pa
rade of horribles respondent and the dissent predict.
13 Contrary to the dissent’s suggestion, post, at 352–353, we do not cast
aspersions on trial judges, who we trust will not be antagonized by good
faith requests for analysts’ appearance at trial. Nor do we expect defense
attorneys to refrain from zealous representation of their clients. We sim
ply do not expect defense attorneys to believe that their clients’ interests
(or their own) are furthered by objections to analysts’ reports whose con
clusions counsel have no intention of challenging.

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Thomas, J., concurring
* * *
This case involves little more than the application of our
holding in Crawford v. Washington, 541 U. S. 36. The Sixth
Amendment does not permit the prosecution to prove its
case via ex parte out-of-court affidavits, and the admission of
such evidence against Melendez-Diaz was error.14 We there
fore reverse the judgment of the Appeals Court of Massachu
setts and remand the case for further proceedings not incon
sistent with this opinion.
It is so ordered.
Justice Thomas, concurring.
I write separately to note that I continue to adhere to my
position that “the Confrontation Clause is implicated by ex
trajudicial statements only insofar as they are contained in
formalized testimonial materials, such as affidavits, deposi
tions, prior testimony, or confessions.” White v. Illinois,
502 U. S. 346, 365 (1992) (opinion concurring in part and con
curring in judgment); see also Giles v. California, 554 U. S.
353, 378 (2008) (concurring opinion) (characterizing state
ments within the scope of the Confrontation Clause to in
clude those that are “sufficiently formal to resemble the Mar
ian examinations” because they were Mirandized or custodial
or “accompanied by [a] similar indicia of formality” (internal
quotation marks omitted)); Davis v. Washington, 547 U. S.
813, 836 (2006) (opinion concurring in judgment in part and
dissenting in part) (reiterating that the Clause encompasses
14 We of course express no view as to whether the error was harmless.
The Appeals Court of Massachusetts did not reach that question, and we
decline to address it in the first instance. Cf. Coy v. Iowa, 487 U. S. 1012,
1021–1022 (1988). In connection with that determination, however, we
disagree with the dissent’s contention, post, at 353, that “only an analyst’s
testimony suffices to prove [the] fact” that “the substance is cocaine.” To
day’s opinion, while insisting upon retention of the confrontation require
ment, in no way alters the type of evidence (including circumstantial
evidence) sufficient to sustain a conviction.

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extrajudicial statements contained in the types of formalized
materials listed in White, supra, at 365 (opinion of Thomas,
J.)). I join the Court’s opinion in this case because the docu
ments at issue in this case “are quite plainly affidavits,” ante,
at 310. As such, they “fall within the core class of testi
monial statements” governed by the Confrontation Clause.
Ibid. (internal quotation marks omitted).
Justice Kennedy, with whom The Chief Justice, Jus
tice Breyer, and Justice Alito join, dissenting.
The Court sweeps away an accepted rule governing the
admission of scientific evidence. Until today, scientific anal
ysis could be introduced into evidence without testimony
from the “analyst” who produced it. This rule has been es
tablished for at least 90 years. It extends across at least 35
States and six Federal Courts of Appeals. Yet the Court
undoes it based on two recent opinions that say nothing
about forensic analysts: Crawford v. Washington, 541 U. S.
36 (2004), and Davis v. Washington, 547 U. S. 813 (2006).
It is remarkable that the Court so confidently disregards
a century of jurisprudence. We learn now that we have mis
interpreted the Confrontation Clause—hardly an arcane or
seldom-used provision of the Constitution—for the first 218
years of its existence. The immediate systemic concern
is that the Court makes no attempt to acknowledge the
real differences between laboratory analysts who perform
scientific tests and other, more conventional witnesses—
“witnesses” being the word the Framers used in the
Confrontation Clause.
Crawford and Davis dealt with ordinary witnesses—
women who had seen, and in two cases been the victim of,
the crime in question. Those cases stand for the proposition
that formal statements made by a conventional witness—
one who has personal knowledge of some aspect of the de
fendant’s guilt—may not be admitted without the witness
appearing at trial to meet the accused face to face. But

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Crawford and Davis do not say—indeed, could not have said,
because the facts were not before the Court—that anyone
who makes a testimonial statement is a witness for purposes
of the Confrontation Clause, even when that person has, in
fact, witnessed nothing to give them personal knowledge of
the defendant’s guilt.
Because Crawford and Davis concerned typical witnesses,
the Court should have done the sensible thing and limited
its holding to witnesses as so defined. Indeed, as Justice
Thomas warned in his opinion in Davis, the Court’s ap
proach has become “disconnected from history and unneces
sary to prevent abuse.” 547 U. S., at 838 (opinion concurring
in judgment in part and dissenting in part). The Court’s
reliance on the word “testimonial” is of little help, of course,
for that word does not appear in the text of the Clause.
The Court dictates to the States, as a matter of constitu
tional law, an as-yet-undefined set of rules governing what
kinds of evidence may be admitted without in-court testi
mony. Indeed, under today’s opinion the States bear an
even more onerous burden than they did before Crawford.
Then, the States at least had the guidance of the hearsay
rule and could rest assured that “where the evidence f[ell]
within a firmly rooted hearsay exception,” the Confrontation
Clause did not bar its admission. Ohio v. Roberts, 448 U. S.
56, 66 (1980) (overruled by Crawford). Now, without guid
ance 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., Me´ ndez, Crawford v.
Washington: A Critique, 57 Stan. L. Rev. 569, 586–593 (2004)
(discussing unanswered questions regarding testimonial
statements).
The Court’s opinion suggests this will be a body of formal
istic and wooden rules, divorced from precedent, common
sense, and the underlying purpose of the Clause. Its ruling
has vast potential to disrupt criminal procedures that al
ready give ample protections against the misuse of scientific

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evidence. For these reasons, as more fully explained below,
the Court’s opinion elicits my respectful dissent.
I
A
1
The Court says that, before the results of a scientific test
may be introduced into evidence, the defendant has the right
to confront the “analysts.” Ante, at 310–311. One must
assume that this term, though it appears nowhere in the
Confrontation Clause, nevertheless has some constitutional
substance that now must be elaborated in future cases.
There is no accepted definition of analyst, and there is no
established precedent to define that term.
Consider how many people play a role in a routine test for
the presence of illegal drugs. One person prepares a sample
of the drug, places it in a testing machine, and retrieves the
machine’s printout—often, a graph showing the frequencies
of radiation absorbed by the sample or the masses of the
sample’s molecular fragments. See 2 P. Giannelli & E. Im
winkelried, Scientific Evidence § 23.03 (4th ed. 2007) (describ
ing common methods of identifying drugs, including infrared
spectrophotometry, nuclear magnetic resonance, gas chro
matography, and mass spectrometry). A second person
interprets the graph the machine prints out—perhaps by
comparing that printout with published, standardized graphs
of known drugs. Ibid. Meanwhile, a third person—per
haps an independent contractor—has calibrated the machine
and, having done so, has certified that the machine is in good
working order. Finally, a fourth person—perhaps the labo
ratory’s director—certifies that his subordinates followed es
tablished procedures.
It is not at all evident which of these four persons is the
analyst to be confronted under the rule the Court announces
today. If all are witnesses who must appear for in-court
confrontation, then the Court has, for all practical purposes,

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forbidden the use of scientific tests in criminal trials. As
discussed further below, requiring even one of these individ
uals to testify threatens to disrupt if not end many prosecu
tions where guilt is clear but a newly found formalism now
holds sway. See Part I–C, infra.
It is possible to read the Court’s opinion, however, to say
that all four must testify. Each one has contributed to the
test’s result and has, at least in some respects, made a repre
sentation about the test. Person One represents that a pure
sample, properly drawn, entered the machine and produced
a particular printout. Person Two represents that the
printout corresponds to a known drug. Person Three repre
sents that the machine was properly calibrated at the time.
Person Four represents that all the others performed their
jobs in accord with established procedures.
And each of the four has power to introduce error. A lab
oratory technician might adulterate the sample. The inde
pendent contractor might botch the machine’s calibration.
And so forth. The reasons for these errors may range from
animus against the particular suspect or all criminal suspects
to unintentional oversight; from gross negligence to good
faith mistake. It is no surprise that a plausible case can be
made for deeming each person in the testing process an ana
lyst under the Court’s opinion.
Consider the independent contractor who has calibrated
the testing machine. At least in a routine case, where the
machine’s result appears unmistakable, that result’s accuracy
depends entirely on the machine’s calibration. The calibra
tion, in turn, can be proved only by the contractor’s certifi
cation that he or she did the job properly. That certification
appears to be a testimonial statement under the Court’s
definition: It is a formal, out-of-court statement, offered for
the truth of the matter asserted, and made for the purpose
of later prosecution. See ante, at 309–311. It is not clear,
under the Court’s ruling, why the independent contractor is
not also an analyst.

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Consider the person who interprets the machine’s print
out. His or her interpretation may call for the exercise of
professional judgment in close cases. See Giannelli & Im
winkelried, supra. If we assume no person deliberately in
troduces error, this interpretive step is the one most likely
to permit human error to affect the test’s result. This exer
cise of judgment might make this participant an analyst.
The Court implies as much. See ante, at 318–320.
And we must yet consider the laboratory director who cer
tifies the ultimate results. The director is arguably the
most effective person to confront for revealing any ambigu
ity in findings, variations in procedures, or problems in the
office, as he or she is most familiar with the standard proce
dures, the office’s variations, and problems in prior cases or
with particular analysts. The prosecution may seek to in
troduce his or her certification into evidence. The Court im
plies that only those statements that are actually entered
into evidence require confrontation. See ante, at 309. This
could mean that the director is also an analyst, even if his
or her certification relies upon or restates work performed
by subordinates.
The Court offers no principles or historical precedent to
determine which of these persons is the analyst. All con
tribute to the test result. And each is equally remote from
the scene, has no personal stake in the outcome, does not
even know the accused, and is concerned only with the per
formance of his or her role in conducting the test.
It could be argued that the only analyst who must testify
is the person who signed the certificate. Under this view, a
laboratory could have one employee sign certificates and ap
pear in court, which would spare all the other analysts this
burden. But the Court has already rejected this arrange
ment. The Court made clear in Davis that it will not permit
the testimonial statement of one witness to enter into evi
dence through the in-court testimony of a second:

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“[W]e do not think it conceivable that the protections of
the Confrontation Clause can readily be evaded by hav
ing a note-taking policeman [here, the laboratory em
ployee who signs the certificate] recite the unsworn
hearsay testimony of the declarant [here, the analyst
who performs the actual test], instead of having the de
clarant sign a deposition. Indeed, if there is one point
for which no case—English or early American, state or
federal—can be cited, that is it.” 547 U. S., at 826.
Under this logic, the Court’s holding cannot be cabined to
the person who signs the certificates. If the signatory is
restating the testimonial statements of the true analysts—
whoever they might be—then those analysts, too, must tes
tify in person.
Today’s decision demonstrates that even in the narrow cat
egory of scientific tests that identify a drug, the Court cannot
define with any clarity who the analyst is. Outside this nar
row category, the range of other scientific tests that may be
affected by the Court’s new confrontation right is stagger
ing. See, e. g., Comment, Toward a Definition of “Testimo
nial”: How Autopsy Reports Do Not Embody the Qualities
of a Testimonial Statement, 96 Cal. L. Rev. 1093, 1094, 1115
(2008) (noting that every court post-Crawford has held that
autopsy reports are not testimonial, and warning that a con
trary rule would “effectively functio[n] as a statute of limita
tions for murder”).
2
It is difficult to confine at this point the damage the
Court’s holding will do in other contexts. Consider just
two—establishing the chain of custody and authenticating a
copy of a document.
It is the obligation of the prosecution to establish the chain
of custody for evidence sent to testing laboratories—that is,
to establish “the identity and integrity of physical evidence

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by tracing its continuous whereabouts.” 23 C. J. S., Crimi
nal Law § 1142, p. 66 (2006). Meeting this obligation re
quires representations—that one officer retrieved the evi
dence from the crime scene, that a second officer checked it
into an evidence locker, that a third officer verified the lock
er’s seal was intact, and so forth. The iron logic of which
the Court is so enamored would seem to require in-court
testimony from each human link in the chain of custody.
That, of course, has never been the law. See, e. g., United
States v. Lott, 854 F. 2d 244, 250 (CA7 1988) (“[G]aps in the
chain [of custody] normally go to the weight of the evidence
rather than its admissibility”); 29A Am. Jur. 2d, Evidence
§ 962, p. 269 (2008) (“The fact that one of the persons in con
trol of a fungible substance does not testify at trial does not,
without more, make the substance or testimony relating to
it inadmissible”); 23 C. J. S., supra, § 1142, at 67 (“It is gener
ally not necessary that every witness who handled the evi
dence testify”).
It is no answer for the Court to say that “[i]t is up to the
prosecution to decide what steps in the chain of custody are
so crucial as to require evidence.” Ante, at 311, n. 1. The
case itself determines which links in the chain are crucial—
not the prosecution. In any number of cases, the crucial link
in the chain will not be available to testify, and so the evi
dence will be excluded for lack of a proper foundation.
Consider another context in which the Court’s holding
may cause disruption: The long-accepted practice of authen
ticating copies of documents by means of a certificate from
the document’s custodian stating that the copy is accurate.
See, e. g., Fed. Rule Evid. 902(4) (in order to be self
authenticating, a copy of a public record must be “certified
as correct by the custodian”); Rule 902(11) (business record
must be “accompanied by a written declaration of its custo
dian”). Under one possible reading of the Court’s opinion,
recordkeepers will be required to testify. So far, courts
have not read Crawford and Davis to impose this largely

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meaningless requirement. See, e. g., United States v. Ade
fehinti, 510 F. 3d 319, 327–328 (CADC 2008) (certificates
authenticating bank records may be admitted without con
frontation); United States v. Ellis, 460 F. 3d 920, 927 (CA7
2006) (certificate authenticating hospital records). But the
breadth of the Court’s ruling today, and its undefined scope,
may well be such that these courts now must be deemed to
have erred. The risk of that consequence ought to tell us
that something is very wrong with the Court’s analysis.
Because the Court is driven by nothing more than a
wooden application of the Crawford and Davis definition of
“testimonial,” divorced from any guidance from history,
precedent, or common sense, there is no way to predict the
future applications of today’s holding. Surely part of the
justification for the Court’s formalism must lie in its predict
ability. There is nothing predictable here, however, other
than the uncertainty and disruption that now must ensue.
B
With no precedent to guide us, let us assume that the
Court’s analyst is the person who interprets the machine’s
printout. This result makes no sense. The Confrontation
Clause is not designed, and does not serve, to detect errors
in scientific tests. That should instead be done by conduct
ing a new test. Or, if a new test is impossible, the defendant
may call his own expert to explain to the jury the test’s flaws
and the dangers of relying on it. And if, in an extraordinary
case, the particular analyst’s testimony is necessary to the
defense, then, of course, the defendant may subpoena the an
alyst. The Court frets that the defendant may be unable to
do so “when the [analyst] is unavailable or simply refuses
to appear.” Ante, at 324. But laboratory analysts are not
difficult to locate or to compel. As discussed below, analysts
already devote considerable time to appearing in court when
subpoenaed to do so. See Part I–C, infra; see also Brief for
State of Alabama et al. as Amici Curiae 26–28. Neither the

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Court, petitioner, nor amici offer any reason to believe that
defendants have trouble subpoenaing analysts in cases where
the analysts’ in-court testimony is necessary.
The facts of this case illustrate the formalistic and point
less nature of the Court’s reading of the Clause. Petitioner
knew, well in advance of trial, that the Commonwealth would
introduce the tests against him. The bags of cocaine were
in court, available for him to test, and entered into evidence.
Yet petitioner made no effort, before or during trial, to
mount a defense against the analysts’ results. Petitioner
could have challenged the tests’ reliability by seeking discov
ery concerning the testing methods used or the qualifications
of the laboratory analysts. See Mass. Rule Crim. Proc.
14(a)(2) (2009). He did not do so. Petitioner could have
sought to conduct his own test. See Rule 41. Again, he did
not seek a test; indeed, he did not argue that the drug was
not cocaine. Rather than dispute the authenticity of the
samples tested or the accuracy of the tests performed, peti
tioner argued to the jury that the prosecution had not shown
that he had possessed or dealt in the drugs.
Despite not having prepared a defense to the analysts’ re
sults, petitioner’s counsel made what can only be described
as a pro forma objection to admitting the results with
out in-court testimony, presumably from one particular ana
lyst. Today the Court, by deciding that this objection
should have been sustained, transforms the Confrontation
Clause from a sensible procedural protection into a distortion
of the criminal justice system.
It is difficult to perceive how the Court’s holding will ad
vance the purposes of the Confrontation Clause. One pur
pose of confrontation is to impress upon witnesses the grav
ity of their conduct. See Coy v. Iowa, 487 U. S. 1012,
1019–1020 (1988). A witness, when brought to face the per
son his or her words condemn, might refine, reformulate, re
consider, or even recant earlier statements. See ibid. A
further purpose is to alleviate the danger of one-sided inter

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rogations by adversarial government officials who might dis
tort a witness’ testimony. The Clause guards against this
danger by bringing the interrogation into the more neutral
and public forum of the courtroom. See Maryland v. Craig,
497 U. S. 836, 869–870 (1990) (Scalia, J., dissenting) (discuss
ing the “value of the confrontation right in guarding against
a child’s distorted or coerced recollections”); see also Com
ment, 96 Cal. L. Rev., at 1120–1122 (“During private law
enforcement questioning, police officers or prosecutors can
exert pressure on the witness without a high risk of being
discovered. Courtroom questioning, in contrast, is public
and performed in front of the jury, judge and defendant.
Pressure is therefore harder to exert in court”).
But neither purpose is served by the rule the Court an
nounces 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, the analyst
is far removed from the particular defendant and, indeed,
claims no personal knowledge of the defendant’s guilt. And
an analyst performs hundreds if not thousands of tests each
year and will not remember a particular test or the link it
had to the defendant.
This is not to say that analysts are infallible. They are
not. It may well be that if the State does not introduce the
machine printout or the raw results of a laboratory analysis;
if it does not call an expert to interpret a test, particularly
if that test is complex or little known; if it does not establish
the chain of custody and the reliability of the laboratory; then
the State will have failed to meet its burden of proof. That
result follows because the State must prove its case beyond
a reasonable doubt, without relying on presumptions, unreli
able hearsay, and the like. See United States v. United
States Gypsum Co., 438 U. S. 422, 446 (1978) (refusing to per
mit a “ ‘conclusive presumption [of intent],’ ” which “ ‘would
effectively eliminate intent as an ingredient of the offense’ ”
(quoting Morissette v. United States, 342 U. S. 246, 275

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(1952))). The State must permit the defendant to challenge
the analyst’s result. See Holmes v. South Carolina, 547
U. S. 319, 331 (2006) (affirming the defendant’s right to “have
a meaningful opportunity to present a complete defense” (in
ternal quotation marks omitted)). The rules of evidence, in
cluding those governing reliability under hearsay principles
and the latitude to be given expert witnesses; the rules
against irrebutable presumptions; and the overriding princi
ple that the prosecution must make its case beyond a rea
sonable doubt—all these are part of the protections for the
accused. The States, however, have some latitude in deter
mining how these rules should be defined.
The Confrontation Clause addresses who must testify. It
simply does not follow, however, that this clause, in lieu of
the other rules set forth above, controls who the prosecution
must call on every issue. Suppose, for instance, that the de
fense challenges the procedures for a secure chain of custody
for evidence sent to a laboratory and then returned to the
police. The defense has the right to call its own witnesses
to show that the chain of custody is not secure. But that
does not mean it can demand that, in the prosecution’s case
in chief, each person who is in the chain of custody—and who
had an undoubted opportunity to taint or tamper with the
evidence—must be called by the prosecution under the Con
frontation Clause. And the same is true with laboratory
technicians.
The Confrontation Clause is simply not needed for these
matters. Where, as here, the defendant does not even dis
pute the accuracy of the analyst’s work, confrontation adds
nothing.
C
For the sake of these negligible benefits, the Court threat
ens to disrupt forensic investigations across the country and
to put prosecutions nationwide at risk of dismissal based on
erratic, all-too-frequent instances when a particular labora
tory technician, now invested by the Court’s new constitu

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tional designation as the analyst, simply does not or cannot
appear.
Consider first the costs today’s decision imposes on crimi
nal trials. Our own Court enjoys weeks, often months, of
notice before cases are argued. We receive briefs well
in advance. The argument itself is ordered. A busy trial
court, by contrast, must consider not only attorneys’ sched
ules but also those of witnesses and juries. Trial courts
have huge caseloads to be processed within strict time limits.
Some cases may unexpectedly plead out at the last minute;
others, just as unexpectedly, may not. Some juries stay out
longer than predicted; others must be reconstituted. An an
alyst cannot hope to be the trial court’s top priority in sched
uling. The analyst must instead face the prospect of waiting
for days in a hallway outside the courtroom before being
called to offer testimony that will consist of little more than
a rote recital of the written report. See Part I–B, supra.
As matters stood before today’s opinion, analysts already
spent considerable time appearing as witnesses in those few
cases where the defendant, unlike petitioner in this case, con
tested the analyst’s result and subpoenaed the analyst. See
Brief for State of Alabama et al. as Amici Curiae 26–28 (tes
tifying takes time); ante, at 328 (before today’s opinion, it
was “ ‘almost always the case that [analysts’ certificates]
[we]re admitted without objection’ ” in Massachusetts
courts). By requiring analysts also to appear in the far
greater number of cases where defendants do not dispute the
analyst’s result, the Court imposes enormous costs on the
administration of justice.
Setting aside, for a moment, all the other crimes for which
scientific evidence is required, consider the costs the Court’s
ruling will impose on state drug prosecutions alone. In
2004, the most recent year for which data are available, drug
possession and trafficking resulted in 362,850 felony convic
tions in state courts across the country. See Dept. of Jus
tice, Bureau of Justice Statistics, M. Durose & P. Langan,

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Felony Sentences in State Courts, 2004, p. 2 (July 2007).
Roughly 95% of those convictions were products of plea bar
gains, see id., at 1, which means that state courts saw more
than 18,000 drug trials in a single year.
The analysts responsible for testing the drugs at issue in
those cases now bear a crushing burden. For example, the
district attorney in Philadelphia prosecuted 25,000 drug
crimes in 2007. Brief for National Dist. Attorneys Associa
tion et al. as Amici Curiae 12–13. Assuming that number
remains the same, and assuming that 95% of the cases end
in a plea bargain, each of the city’s 18 drug analysts, ibid.,
will be required to testify in more than 69 trials next year.
Cleveland’s district attorney prosecuted 14,000 drug crimes
in 2007. Ibid. Assuming that number holds, and that 95%
of the cases end in a plea bargain, each of the city’s six drug
analysts (two of whom work only part time) must testify in
117 drug cases next year. Id., at 13.
The Federal Government may face even graver difficulties
than the States because its operations are so widespread.
For example, the Federal Bureau of Investigation (FBI) lab
oratory at Quantico, Virginia, supports federal, state, and
local investigations across the country. Its 500 employees
conduct over 1 million scientific tests each year. Dept. of
Justice, FBI Laboratory 2007, Message from the FBI
Laboratory Director, http://www.f bi.gov/hq/ lab/ lab2007/
labannual07.pdf (as visited June 22, 2009, and available in
Clerk of Court’s case file). The Court’s decision means that
before any of those million tests reaches a jury, at least one
of the laboratory’s analysts must board a plane, find his or
her way to an unfamiliar courthouse, and sit there waiting
to read aloud notes made months ago.
The Court purchases its meddling with the Confrontation
Clause at a dear price, a price not measured in taxpayer
dollars alone. Guilty defendants will go free, on the most
technical grounds, as a direct result of today’s decision, add
ing nothing to the truth-finding process. The analyst will

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not always make it to the courthouse in time. He or she
may be ill; may be out of the country; may be unable to travel
because of inclement weather; or may at that very moment
be waiting outside some other courtroom for another defend
ant to exercise the right the Court invents today. If for any
reason the analyst cannot make it to the courthouse in time,
then, the Court holds, the jury cannot learn of the analyst’s
findings (unless, by some unlikely turn of events, the defend
ant previously cross-examined the analyst). Ante, at 309.
The result, in many cases, will be that the prosecution cannot
meet its burden of proof, and the guilty defendant goes free
on a technicality that, because it results in an acquittal, can
not be reviewed on appeal.
The Court’s holding is a windfall to defendants, one that
is unjustified by any demonstrated deficiency in trials, any
well-understood historical requirement, or any established
constitutional precedent.
II
All of the problems with today’s decision—the imprecise
definition of “analyst,” the lack of any perceptible benefit,
the heavy societal costs—would be of no moment if the Con
stitution did, in fact, require the Court to rule as it does
today. But the Constitution does not.
The Court’s fundamental mistake is to read the Confronta
tion Clause as referring to a kind of out-of-court statement—
namely, a testimonial statement—that must be excluded
from evidence. The Clause does not refer to kinds of state
ments. Nor does the Clause contain the word “testimonial.”
The text, instead, refers to kinds of persons, namely, to “wit
nesses against” the defendant. Laboratory analysts are not
“witnesses against” the defendant as those words would
have been understood at the framing. There is simply no
authority for this proposition.
Instead, the Clause refers to a conventional “witness”—
meaning one who witnesses (that is, perceives) an event that
gives him or her personal knowledge of some aspect of the

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defendant’s guilt. Both Crawford and Davis concerned just
this kind of ordinary witness—and nothing in the Confronta
tion Clause’s text, history, or precedent justifies the Court’s
decision to expand those cases.
A
The Clause states: “In all criminal prosecutions, the ac
cused shall enjoy the right . . . to be confronted with the
witnesses against him.” U. S. Const., Amdt. 6. Though
there is “virtually no evidence of what the drafters of the
Confrontation Clause intended it to mean,” White v. Illinois,
502 U. S. 346, 359 (1992) (Thomas, J., concurring in part and
concurring in judgment), it is certain the Framers did not
contemplate that an analyst who conducts a scientific test far
removed from the crime would be considered a “witnes[s]
against” the defendant.
The Framers were concerned with a typical witness—one
who perceived an event that gave rise to a personal belief in
some aspect of the defendant’s guilt. There is no evidence
that the Framers understood the Clause to extend to uncon
ventional witnesses. As discussed below, there is significant
evidence to the contrary. See Part II–B, infra. In these
circumstances, the historical evidence in support of the
Court’s position is “ ‘too meager . . . to form a solid basis in
history, preceding and contemporaneous with the framing of
the Constitution.’ ” Boumediene v. Bush, 553 U. S. 723, 752
(2008) (quoting Reid v. Covert, 354 U. S. 1, 64 (1957) (Frank
furter, J., concurring in result)). The Court goes danger
ously wrong when it bases its constitutional interpretation
upon historical guesswork.
The infamous treason trial of Sir Walter Raleigh provides
excellent examples of the kinds of witnesses to whom the
Confrontation Clause refers. Raleigh’s Case, 2 How. St. Tr.
1 (1603); see Crawford, 541 U. S., at 44–45 (Raleigh’s trial
informs our understanding of the Clause because it was, at
the time of the framing, one of the “most notorious in

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stances” of the abuse of witnesses’ out-of-court statements);
ante, at 315 (same). Raleigh’s accusers claimed to have
heard Raleigh speak treason, so they were witnesses in
the conventional sense. We should limit the Confrontation
Clause to witnesses like those in Raleigh’s trial.
The Court today expands the Clause to include laboratory
analysts, but analysts differ from ordinary witnesses in at
least three significant ways. First, a conventional witness
recalls events observed in the past, while an analyst’s report
contains near-contemporaneous observations of the test.
An observation recorded at the time it is made is unlike the
usual act of testifying. A typical witness must recall a pre
vious event that he or she perceived just once, and thus may
have misperceived or misremembered. But an analyst mak
ing a contemporaneous observation need not rely on mem
ory; he or she instead reports the observations at the time
they are made. We gave this consideration substantial
weight in Davis. There, the “primary purpose” of the vic
tim’s 911 call was “to enable police assistance to meet an
ongoing emergency,” rather than “to establish or prove past
events potentially relevant to later criminal prosecution.”
547 U. S., at 822, 827. See also People v. Geier, 41 Cal. 4th
555, 605–609, 161 P. 3d 104, 139–141 (2007). The Court cites
no authority for its holding that an observation recorded at
the time it is made is an act of “witness[ing]” for purposes
of the Confrontation Clause.
Second, an analyst observes neither the crime nor any
human action related to it. Often, the analyst does not
know the defendant’s identity, much less have personal
knowledge of an aspect of the defendant’s guilt. The ana
lyst’s distance from the crime and the defendant, in both
space and time, suggests the analyst is not a witness against
the defendant in the conventional sense.
Third, a conventional witness responds to questions under
interrogation. See, e. g., Raleigh’s Case, supra, at 15–20.
But laboratory tests are conducted according to scientific

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protocols; they are not dependent upon or controlled by in
terrogation of any sort. Put differently, out-of-court state
ments should only “require confrontation if they are
produced by, or with the involvement of, adversarial govern
ment officials responsible for investigating and prosecuting
crime.” Comment, 96 Cal. L. Rev., at 1118. There is no
indication that the analysts here—who work for the State
Laboratory Institute, a division of the Massachusetts De
partment of Public Health—were adversarial to petitioner.
Nor is there any evidence that adversarial officials played a
role in formulating the analysts’ certificates.
Rather than acknowledge that it expands the Confronta
tion Clause beyond conventional witnesses, the Court relies
on our recent opinions in Crawford and Davis. Ante, at
309–311. The Court assumes, with little analysis, that
Crawford and Davis extended the Clause to any person who
makes a “testimonial” statement. But the Court’s confi
dent tone cannot disguise the thinness of these two reeds.
Neither Crawford nor Davis considered whether the Clause
extends to persons far removed from the crime who have
no connection to the defendant. Instead, those cases con
cerned conventional witnesses. Davis, supra, at 826–830
(witnesses were victims of defendants’ assaults); Crawford,
supra, at 38 (witness saw defendant stab victim).
It is true that Crawford and Davis employed the term
“testimonial,” and thereby suggested that any testimonial
statement, by any person, no matter how distant from the
defendant and the crime, is subject to the Confrontation
Clause. But that suggestion was not part of the holding of
Crawford or Davis. Those opinions used the adjective “tes
timonial” to avoid the awkward phrasing required by reusing
the noun “witness.” The Court today transforms that turn
of phrase into a new and sweeping legal rule, by holding that
anyone who makes a formal statement for the purpose of
later prosecution—no matter how removed from the crime—
must be considered a “witnes[s] against” the defendant.

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Ante, at 309–311. The Court cites no authority to justify
this expansive new interpretation.
B
No historical evidence supports the Court’s conclusion that
the Confrontation Clause was understood to extend beyond
conventional witnesses to include analysts who conduct sci
entific tests far removed from the crime and the defend
ant. Indeed, what little evidence there is contradicts this
interpretation.
Though the Framers had no forensic scientists, they did
use another kind of unconventional witness—the copyist. A
copyist’s work may be as essential to a criminal prosecution
as the forensic analyst’s. To convict a man of bigamy, for
example, the State often requires his marriage records.
See, e. g., Williams v. State, 54 Ala. 131, 134, 135 (1875); State
v. Potter, 52 Vt. 33, 38 (1879). But if the original records
cannot be taken from the archive, the prosecution must rely
on copies of those records, made for the purpose of introduc
ing the copies into evidence at trial. See ibid. In that case,
the copyist’s honesty and diligence are just as important as
the analyst’s here. If the copyist falsifies a copy, or even
misspells a name or transposes a date, those flaws could lead
the jury to convict. Because so much depends on his or her
honesty and diligence, the copyist often prepares an affidavit
certifying that the copy is true and accurate.
Such a certificate is beyond question a testimonial state
ment under the Court’s definition: It is a formal out-of-court
statement offered for the truth of two matters (the copyist’s
honesty and the copy’s accuracy), and it is prepared for a
criminal prosecution.
During the Framers’ era copyists’ affidavits were accepted
without hesitation by American courts. See, e. g., United
States v. Percheman, 7 Pet. 51, 85 (1833) (opinion for the
Court by Marshall, C. J.); see also Advisory Committee’s
Note on Fed. Rule Evid. 902(4), 28 U. S. C. App., p. 390 (“The

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common law . . . recognized the procedure of authenticating
copies of public records by certificate”); 5 J. Wigmore, Evi
dence §§ 1677, 1678 (J. Chadbourn rev. 1974). And courts
admitted copyists’ affidavits in criminal as well as civil trials.
See Williams, supra; Potter, supra. This demonstrates
that the framing generation, in contrast to the Court today,
did not consider the Confrontation Clause to require in
court confrontation of unconventional authors of testimonial
statements.
The Court attempts to explain away this historical excep
tion to its rule by noting that a copyist’s authority is “nar
rowly circumscribed.” Ante, at 322. But the Court does
not explain why that matters, nor, if it does matter, why
laboratory analysts’ authority should not also be deemed
“narrowly circumscribed” so that they, too, may be excused
from testifying. And drawing these fine distinctions cannot
be squared with the Court’s avowed allegiance to formalism.
Determining whether a witness’ authority is “narrowly cir
cumscribed” has nothing to do with Crawford’s testimonial
framework. It instead appears much closer to the pre-
Crawford rule of Ohio v. Roberts, under which a statement
could be admitted without testimony if it “bears adequate
indicia of reliability.” 448 U. S., at 66 (internal quotation
marks omitted).
In keeping with the traditional understanding of the Con
frontation Clause, this Court in Dowdell v. United States,
221 U. S. 325 (1911), rejected a challenge to the use of cer
tificates, sworn out by a clerk of court, a trial judge, and a
court reporter, stating that defendants had been present at
trial. Those certificates, like a copyist’s certificate, met
every requirement of the Court’s current definition of “testi
monial.” In rejecting the defendants’ claim that use of the
certificates violated the Confrontation Clause, the Court in
Dowdell explained that the officials who executed the cer
tificates “were not witnesses against the accused” because
they “were not asked to testify to facts concerning [the de

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fendants’] guilt or innocence.” Id., at 330. Indeed, as re
cently as Davis, the Court reaffirmed Dowdell. 547 U. S.,
at 825.
By insisting that every author of a testimonial statement
appear for confrontation, on pain of excluding the statement
from evidence, the Court does violence to the Framers’ sensi
ble, and limited, conception of the right to confront “wit
nesses against” the defendant.
C
In addition to lacking support in historical practice or in
this Court’s precedent, the Court’s decision is also contrary
to authority extending over at least 90 years, 35 States, and
six Federal Courts of Appeals.
Almost 100 years ago three State Supreme Courts held
that their State Constitutions did not require analysts to tes
tify in court. In a case much like this one, the Massachu
setts Supreme Judicial Court upheld the admission of a
certificate stating that the liquid seized from the defendant
contained alcohol, even though the author of the certificate
did not testify. Commonwealth v. Slavski, 245 Mass. 405,
413, 140 N. E. 465, 467 (1923). The highest courts in Con
necticut and Virginia reached similar conclusions under their
own Constitutions. State v. Torello, 103 Conn. 511, 131 A.
429 (1925); Bracy v. Commonwealth, 119 Va. 867, 89 S. E. 144
(1916). Just two state courts appear to have read a State
Constitution to require a contrary result. State v. Clark,
1998 MT 221, ¶¶ 18–25, 290 Mont. 479, 484–489, 964 P. 2d
766, 770–772 (laboratory drug report requires confrontation
under Montana’s Constitution, which is “[u]nlike its federal
counterpart”); State v. Birchfield, 342 Ore. 624, 157 P. 3d 216
(2007), but see id., at 631–632, 157 P. 3d, at 220 (suggesting
that a “typical notice requirement” would be lawful).
As for the Federal Constitution, before Crawford the au
thority was stronger still: The Sixth Amendment does not
require analysts to testify in court. All Federal Courts of

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Appeals to consider the issue agreed. Sherman v. Scott, 62
F. 3d 136, 139–142 (CA5 1995); Minner v. Kerby, 30 F. 3d
1311, 1313–1315 (CA10 1994); United States v. Baker, 855
F. 2d 1353, 1359–1360 (CA8 1988); Reardon v. Manson, 806
F. 2d 39 (CA2 1986); Kay v. United States, 255 F. 2d 476,
480–481 (CA4 1958); see also Manocchio v. Moran, 919 F. 2d
770, 777–782 (CA1 1990) (autopsy report stating cause of vic
tim’s death). Some 24 state courts, and the Court of Ap
peals for the Armed Forces, were in accord. See Appendix
A, infra. (Some cases cited in the appendixes concern doc
tors, coroners, and calibrators rather than laboratory ana
lysts, but their reasoning is much the same.) Eleven more
state courts upheld burden-shifting statutes that reduce, if
not eliminate, the right to confrontation by requiring the de
fendant to take affirmative steps prior to trial to summon the
analyst. See ibid. Because these burden-shifting statutes
may be invalidated by the Court’s reasoning, these 11 deci
sions, too, appear contrary to today’s opinion. See Part
III–B, infra. Most of the remaining States, far from en
dorsing the Court’s view, appear not to have addressed the
question prior to Crawford. Against this weight of author
ity, the Court proffers just two cases from intermediate state
courts of appeals. Ante, at 313.
On a practical level, today’s ruling would cause less disrup
tion if the States’ hearsay rules had already required ana
lysts to testify. But few States require this. At least 16
state courts have held that their evidentiary rules permit
scientific test results, calibration certificates, and the obser
vations of medical personnel to enter evidence without
in-court testimony. See Appendix B, infra. The Federal
Courts of Appeals have reached the same conclusion in
applying the federal hearsay rule. United States v. Garnett,
122 F. 3d 1016, 1018–1019 (CA11 1997) (per curiam); United
States v. Gilbert, 774 F. 2d 962, 965 (CA9 1985) (per curiam);
United States v. Ware, 247 F. 2d 698, 699–700 (CA7 1957);
but see United States v. Oates, 560 F. 2d 45, 82 (CA2 1977)

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(report prepared by law enforcement not admissible under
public-records or business-records exceptions to federal
hearsay rule).
The modern trend in the state courts has been away from
the Court’s rule and toward the admission of scientific test
results without testimony—perhaps because the States have
recognized the increasing reliability of scientific testing.
See Appendix B, infra (citing cases from three States over
ruling or limiting previous precedents that had adopted the
Court’s rule as a matter of state law). It appears that a
mere six courts continue to interpret their States’ hear
say laws to require analysts to testify. See ibid. And, of
course, where courts have grounded their decisions in state
law, rather than the Constitution, the legislatures in those
States have had, until now, the power to abrogate the courts’
interpretation if the costs were shown to outweigh the bene
fits. Today the Court strips that authority from the States
by carving the minority view into the constitutional text.
State legislatures, and not the Members of this Court,
have the authority to shape the rules of evidence. The
Court therefore errs when it relies in such great measure on
the recent report of the National Academy of Sciences.
Ante, at 318–320 (discussing National Research Council of
the National Academies, Strengthening Forensic Science in
the United States: A Path Forward (2009)). That report is
not directed to this Court, but rather to the elected repre
sentatives in Congress and the state legislatures, who, unlike
Members of this Court, have the power and competence to
determine whether scientific tests are unreliable and, if so,
whether testimony is the proper solution to the problem.
The Court rejects the well-established understanding—
extending across at least 90 years, 35 States, and six Federal
Courts of Appeals—that the Constitution does not require
analysts to testify in court before their analysis may be in
troduced into evidence. The only authority on which the
Court can rely is its own speculation on the meaning of the

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word “testimonial,” made in two recent opinions that said
nothing about scientific analysis or scientific analysts.
III
In an attempt to show that the “sky will not fall after
today’s decision,” ante, at 325, the Court makes three argu
ments, none of which withstands scrutiny.
A
In an unconvincing effort to play down the threat that to
day’s new rule will disrupt or even end criminal prosecu
tions, the Court professes a hope that defense counsel will
decline to raise what will soon be known as the Melendez-
Diaz objection. Ante, at 328. The Court bases this expec
tation on its understanding that defense attorneys surrender
constitutional rights because the attorneys do not “want to
antagonize the judge or jury by wasting their time.” Ibid.
The Court’s reasoning is troubling on at least two levels.
First, the Court’s speculation rests on the apparent belief
that our Nation’s trial judges and jurors are unwilling to
accept zealous advocacy and that, once “antagonize[d]” by it,
will punish such advocates with adverse rulings. Ibid.
The Court offers no support for this stunning slur on the
integrity of the Nation’s courts. It is commonplace for the
defense to request, at the conclusion of the prosecution’s
opening case, a directed verdict of acquittal. If the prosecu
tion has failed to prove an element of the crime—even an
element that is technical and rather obvious, such as move
ment of a car in interstate commerce—then the case must
be dismissed. Until today one would not have thought that
judges should be angered at the defense for making such
motions, nor that counsel has some sort of obligation to avoid
being troublesome when the prosecution has not done all the
law requires to prove its case.
Second, even if the Court were right to expect trial judges
to feel “antagonize[d]” by Melendez-Diaz objections and to

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then vent their anger by punishing the lawyer in some way,
there is no authority to support the Court’s suggestion that a
lawyer may shirk his or her professional duties just to avoid
judicial displeasure. There is good reason why the Court
cites no authority for this suggestion—it is contrary to what
some of us, at least, have long understood to be defense coun
sel’s duty to be a zealous advocate for every client. This
Court has recognized the bedrock principle that a competent
criminal defense lawyer must put the prosecution to its
proof:
“[T]he adversarial process protected by the Sixth
Amendment requires that the accused have ‘counsel act
ing in the role of an advocate.’ Anders v. California,
386 U. S. 738, 743 (1967). The right to the effective as
sistance of counsel is thus the right of the accused to
require the prosecution’s case to survive the crucible of
meaningful adversarial testing. When a true adversar
ial criminal trial has been conducted . . . the kind of
testing envisioned by the Sixth Amendment has oc
curred. But if the process loses its character as a con
frontation between adversaries, the constitutional guar
antee is violated.” United States v. Cronic, 466 U. S.
648, 656–657 (1984) (footnotes omitted).
See also ABA Model Code of Professional Responsibility,
Canon 7–1, in ABA Compendium of Professional Responsibil
ity Rules and Standards (2008) (“The duty of a lawyer, both
to his client and to the legal system, is to represent his client
zealously within the bounds of the law . . . ” (footnotes
omitted)).
The instant case demonstrates how zealous defense coun
sel will defend their clients. To convict, the prosecution
must prove the substance is cocaine. Under the Court’s new
rule, apparently only an analyst’s testimony suffices to prove
that fact. (Of course there will also be a large universe of
other crimes, ranging from homicide to robbery, where scien

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tific evidence is necessary to prove an element.) In cases
where scientific evidence is necessary to prove an element of
the crime, the Court’s rule requires the prosecution to call
the person identified as the analyst; this requirement has
become a new prosecutorial duty linked with proving the
State’s case beyond a reasonable doubt. Unless the Court
is ashamed of its new rule, it is inexplicable that the Court
seeks to limit its damage by hoping that defense counsel will
be derelict in their duty to insist that the prosecution prove
its case. That is simply not the way the adversarial sys
tem works.
In any event, the Court’s hope is sure to prove unfounded.
The Court surmises that “[i]t is unlikely that defense counsel
will insist on live testimony whose effect will be merely to
highlight rather than cast doubt upon the forensic analysis.”
Ante, at 328. This optimistic prediction misunderstands
how criminal trials work. If the defense does not plan to
challenge the test result, “highlight[ing]” that result through
testimony does not harm the defense as the Court supposes.
If the analyst cannot reach the courtroom in time to testify,
however, a Melendez-Diaz objection grants the defense a
great windfall: The analyst’s work cannot come into evidence.
Given the prospect of such a windfall (which may, in and of
itself, secure an acquittal) few zealous advocates will pledge,
prior to trial, not to raise a Melendez-Diaz objection. De
fense counsel will accept the risk that the jury may hear the
analyst’s live testimony, in exchange for the chance that the
analyst fails to appear and the government’s case collapses.
And if, as here, the defense is not that the substance was
harmless, but instead that the accused did not possess it, the
testimony of the technician is a formalism that does not de
tract from the defense case.
In further support of its unlikely hope, the Court relies on
the Brief for Law Professors as Amici Curiae 7–8, which
reports that nearly 95% of convictions are obtained via guilty

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plea and thus do not require in-court testimony from labora
tory analysts. Ante, at 325. What the Court does not con
sider is how its holding will alter these statistics. The
defense bar today gains the formidable power to require the
government to transport the analyst to the courtroom at the
time of trial. Zealous counsel will insist upon concessions:
a plea bargain, or a more lenient sentence in exchange for
relinquishing this remarkable power.
B
As further reassurance that the “sky will not fall after
today’s decision,” ibid., the Court notes that many States
have enacted burden-shifting statutes that require the de
fendant to assert his Confrontation Clause right prior to trial
or else “forfeit” it “by silence,” ante, at 326. The Court im
plies that by shifting the burden to the defendant to take
affirmative steps to produce the analyst, these statutes re
duce the burden on the prosecution.
The Court holds that these burden-shifting statutes are
valid because, in the Court’s view, they “shift no burden
whatever.” Ante, at 327. While this conclusion is welcome,
the premise appears flawed. Even what the Court calls the
“simplest form” of burden-shifting statutes, ante, at 326, do
impose requirements on the defendant, who must make a
formal demand, with proper service, well before trial. Some
statutes impose more requirements, for instance by requir
ing defense counsel to subpoena the analyst, to show good
cause for demanding the analyst’s presence, or even to affirm
under oath an intent to cross-examine the analyst. See gen
erally Metzger, Cheating the Constitution, 59 Vand. L. Rev.
475, 481–485 (2006). In a future case, the Court may find
that some of these more onerous burden-shifting statutes vi
olate the Confrontation Clause because they “impos[e] a
burden . . . on the defendant to bring . . . adverse witnesses
into court.” Ante, at 324.

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The burden-shifting statutes thus provide little reassur
ance that this case will not impose a meaningless formalism
across the board.
C
In a further effort to support its assessment that today’s
decision will not cause disruption, the Court cites 10 deci
sions from States that, the Court asserts, “have already
adopted the constitutional rule we announce today.” Ante,
at 325–326, and n. 11. The Court assures us that “there is
no evidence that the criminal justice system has ground to a
halt in the[se] States.” Ante, at 326.
On inspection, the citations prove far less reassuring than
promised. Seven were decided by courts that considered
themselves bound by Crawford. These cases thus offer no
support for the Court’s assertion that the state jurists inde
pendently “adopted” the Court’s interpretation as a matter
of state law. Quite the contrary, the debate in those seven
courts was over just how far this Court intended Crawford
to sweep. See, e. g., State v. Belvin, 986 So. 2d 516, 526 (Fla.
2008) (Wells, J., concurring in part and dissenting in part)
(“I believe that the majority has extended the Crawford and
Davis decisions beyond their intended reach” (citations omit
ted)). The Court should correct these courts’ overbroad
reading of Crawford, not endorse it. Were the Court to do
so, these seven jurisdictions might well change their position.
Moreover, because these seven courts only “adopted” the
Court’s position in the wake of Crawford, their decisions are
all quite recent. These States have not yet been subject to
the widespread, adverse results of the formalism the Court
mandates today.
The citations also fail to reassure for a different reason.
Five of the Court’s ten citations—including all three pre-
Crawford cases—come from States that have reduced the
confrontation right. Four States have enacted a burden
shifting statute requiring the defendant to give early notice
of his intent to confront the analyst. See Part III–B, supra;

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Colorado: Hinojos-Mendoza v. People, 169 P. 3d 662, 668–671
(Colo. 2007), Colo. Rev. Stat. Ann. § 16–3–309 (2008) (defend
ant must give notice 10 days before trial); Georgia: Compare
Miller v. State, 266 Ga. 850, 854–855, 472 S. E. 2d 74, 78–79
(1996) (striking down earlier notice statute requiring defend
ant to show good cause, prior to trial, to call the analyst),
with Ga. Code Ann. § 35–3–154.1 (2006) (defendant must give
notice 10 days before trial); Illinois: People v. McClanahan,
191 Ill. 2d 127, 133–134, 729 N. E. 2d 470, 474–475 (2000), Ill.
Comp. Stat., ch. 725, § 5/115–15 (West 2006) (defendant must
give notice “within 7 days” of “receipt of the report”); Ore
gon: State v. Birchfield, 342 Ore., at 631–632, 157 P. 3d, at
220 (suggesting that a “typical notice requirement” would be
lawful), see Ore. Rev. Stat. § 475.235 (2007) (defendant must
give notice 15 days before trial). A fifth State, Mississippi,
excuses the prosecution from producing the analyst who con
ducted the test, so long as it produces someone. Compare
Barnette v. State, 481 So. 2d 788, 792 (Miss. 1985) (cited by
the Court), with McGowen v. State, 859 So. 2d 320, 339–340
(Miss. 2003) (the Sixth Amendment does not require confron
tation with the particular analyst who conducted the test).
It is possible that neither Mississippi’s practice nor the
burden-shifting statutes can be reconciled with the Court’s
holding. See Part III–B, supra. The disruption caused by
today’s decision has yet to take place in these States.
* * *
Laboratory analysts who conduct routine scientific tests
are not the kind of conventional witnesses to whom the Con
frontation Clause refers. The judgment of the Appeals
Court of Massachusetts should be affirmed.
APPENDIXES
A
The following authorities held, prior to Crawford, that the
Confrontation Clause does not require confrontation of the

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Appendix A to opinion of Kennedy, J.
analyst who conducted a routine scientific test: United States
v. Vietor, 10 M. J. 69, 72 (Ct. Mil. App. 1980) (laboratory drug
report); State v. Cosgrove, 181 Conn. 562, 574–578, 436 A. 2d
33, 40–41 (1980) (same); Howard v. United States, 473 A. 2d
835, 838–839 (D. C. 1984) (same); Baber v. State, 775 So. 2d
258 (Fla. 2000) (blood-alcohol test); Commonwealth v. Har
vard, 356 Mass. 452, 253 N. E. 2d 346 (1969) (laboratory drug
report); DeRosa v. First Judicial Dist. Court of State ex rel.
Carson City, 115 Nev. 225, 232–233, 985 P. 2d 157, 162 (1999)
(per curiam) (blood-alcohol test); State v. Coombs, 149 N. H.
319, 321–322, 821 A. 2d 1030, 1032 (2003) (blood-alcohol test);
State v. Fischer, 459 N. W. 2d 818 (N. D. 1990) (laboratory
drug report); Commonwealth v. Carter, 593 Pa. 562, 932
A. 2d 1261 (2007) (laboratory drug report; applying pre-
Crawford law); State v. Tavares, 590 A. 2d 867, 872–873 (R. I.
1991) (laboratory analysis of victim’s bodily fluid); State v.
Hutto, 325 S. C. 221, 228–230, 481 S. E. 2d 432, 436 (1997)
(footprint); State v. Best, 146 Ariz. 1, 3–4, 703 P. 2d 548, 550–
551 (App. 1985) (fingerprint); State v. Christian, 119 N. M.
776, 895 P. 2d 676 (App. 1995) (blood-alcohol test); State v.
Sosa, 59 Wash. App. 678, 684–687, 800 P. 2d 839, 843–844
(1990) (laboratory drug report).
The following authorities held, prior to Crawford, that the
Confrontation Clause does not require confrontation of the
results of autopsy and hospital reports describing the vic
tim’s injuries: People v. Clark, 3 Cal. 4th 41, 157–159, 833
P. 2d 561, 627–628 (1992) (autopsy report); Henson v. State,
332 A. 2d 773, 774–776 (Del. 1975) (treating physician’s report
of victim’s injuries, with medical conclusions redacted); Col
lins v. State, 267 Ind. 233, 235–236, 369 N. E. 2d 422, 423
(1977) (autopsy report); State v. Wilburn, 196 La. 113, 115–
118, 198 So. 765, 765–766 (1940) (hospital record stating vic
tim’s cause of death (citing State v. Parker, 7 La. Ann. 83
(1852) (coroner’s written inquest stating cause of death)));
State v. Garlick, 313 Md. 209, 223–225, 545 A. 2d 27, 34 (1988)
(blood test showing presence of illegal drug); People v. Kirt

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doll, 391 Mich. 370, 385–391, 217 N. W. 2d 37, 46–48 (1974)
(treating physician’s report describing victim’s injuries);
State v. Spikes, 67 Ohio St. 2d 405, 411–415, 423 N. E. 2d
1122, 1128–1130 (1981) (treating physician’s report of defend
ant’s injuries); State v. Kreck, 86 Wash. 2d 112, 117–120, 542
P. 2d 782, 786–787 (1975) (laboratory report stating that mur
der victim’s blood contained poison).
The following authorities held, prior to Crawford, that the
Confrontation Clause does not require confrontation of cer
tificates stating that instruments were in good working
order at the time of a test: State v. Ing, 53 Haw. 466, 467–473,
497 P. 2d 575, 577–579 (1972) (certificate that police car’s
speedometer was in working order), accord, State v. Ofa, 9
Haw. App. 130, 135–139, 828 P. 2d 813, 817–818 (1992) (per
curiam) (certificate that breathalyzer was in working order);
State v. Ruiz, 120 N. M. 534, 903 P. 2d 845 (App. 1995) (same);
State v. Dilliner, 212 W. Va. 135, 141–142, 569 S. E. 2d 211,
217–218 (2002) (same); State v. Huggins, 659 P. 2d 613, 616–
617 (Alaska App. 1982) (same); State v. Conway, 70 Ore. App.
721, 690 P. 2d 1128 (1984) (same).
The following decisions reduced the right to confront the
results of scientific tests by upholding burden-shifting stat
utes that require the defendant to take affirmative steps
prior to trial to summon the analyst: Johnson v. State, 303
Ark. 12, 18–20, 792 S. W. 2d 863, 866–867 (1990) (defendant
must give notice 10 days before trial); State v. Davison, 245
N. W. 2d 321 (Iowa 1976), Iowa Code § 749A.2 (1975), now
codified as Iowa Code § 691.2 (2009) (same); State v. Crow,
266 Kan. 690, 974 P. 2d 100 (1999) (defendant must give notice
within 10 days of receiving the result and must show that
the result will be challenged at trial); State v. Christianson,
404 A. 2d 999 (Me. 1979) (defendant must give notice 10 days
before trial); State v. Miller, 170 N. J. 417, 436–437, 790 A. 2d
144, 156 (2002) (defendant must give notice within 10 days of
receiving the result and must show that the result will be
challenged at trial); State v. Smith, 312 N. C. 361, 381–382,

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323 S. E. 2d 316, 328 (1984) (defendant must subpoena ana
lyst); State v. Hancock, 317 Ore. 5, 9–12, 854 P. 2d 926, 928–
930 (1993) (same), but see State v. Birchfield, 342 Ore. 624,
157 P. 3d 216 (reducing defendant’s burden); State v. Hughes,
713 S. W. 2d 58 (Tenn. 1986) (defendant must subpoena ana
lyst); Magruder v. Commonwealth, 275 Va. 283, 295–300, 657
S. E. 2d 113, 119–121 (2008) (defendant must “ ‘call the person
performing such analysis,’ ” at the State’s expense); People
v. Mayfield-Ulloa, 817 P. 2d 603 (Colo. App. 1991) (defendant
must give notice to State and the analyst 10 days before
trial); State v. Matthews, 632 So. 2d 294, 300–302 (La. App.
1993) (defendant must give notice five days before trial).
B
The following authorities hold that State Rules of Evi
dence permit the results of routine scientific tests to be ad
mitted into evidence without confrontation: State v. Torres,
60 Haw. 271, 589 P. 2d 83 (1978) (X ray of victim’s body);
State v. Davis, 269 N. W. 2d 434, 440 (Iowa 1978) (laboratory
analysis of victim’s bodily fluid); State v. Taylor, 486 S. W. 2d
239, 241–243 (Mo. 1972) (microscopic comparison of wood chip
retrieved from defendant’s clothing with wood at crime
scene); State v. Snider, 168 Mont. 220, 229–230, 541 P. 2d
1204, 1210 (1975) (laboratory drug report); People v. Porter,
46 App. Div. 2d 307, 311–313, 362 N. Y. S. 2d 249, 255–256
(1974) (blood-alcohol report); Robertson v. Commonwealth,
211 Va. 62, 64–68, 175 S. E. 2d 260, 262–264 (1970) (laboratory
analysis of victim’s bodily fluid); Kreck, supra, at 117–120,
542 P. 2d, at 786–787 (laboratory report stating that murder
victim’s blood contained poison).
The following authorities hold that State Rules of Evi
dence permit autopsy and hospital reports to be admitted
into evidence without confrontation: People v. Williams, 174
Cal. App. 2d 364, 389–391, 345 P. 2d 47, 63–64 (1959) (autopsy
report); Henson, supra, at 775–776 (report of physician
who examined victim); Wilburn, supra, at 115–118, 198 So.,

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at 765–766 (hospital record stating victim’s cause of death);
Garlick, 313 Md., at 223–225, 545 A. 2d, at 34 (blood test);
State v. Reddick, 53 N. J. 66, 68–69, 248 A. 2d 425, 426–427
(1968) (per curiam) (autopsy report stating factual findings,
but not opinions, of medical examiner); People v. Nisonoff,
293 N. Y. 597, 59 N. E. 2d 420 (1944) (same).
The following authorities hold that State Rules of Evi
dence permit certificates, which state that scientific instru
ments were in good working order, to be admitted into evi
dence without confrontation: Wester v. State, 528 P. 2d 1179,
1183 (Alaska 1974) (certificate stating that breathalyzer ma
chine was in working order); Best v. State, 328 A. 2d 141,
143 (Del. 1974) (certificate that breathalyzer was in working
order); State v. Rines, 269 A. 2d 9, 13–15 (Me. 1970) (manufac
turer’s certificate stating that blood-alcohol test kit was in
working order admissible under the business-records excep
tion); McIlwain v. State, 700 So. 2d 586, 590–591 (Miss.
1997) (same).
Taking the minority view, the following authorities inter
pret state hearsay rules to require confrontation of the re
sults of routine scientific tests or observations of medical
personnel: State v. Sandoval-Tena, 138 Idaho 908, 912, 71
P. 3d 1055, 1059 (2003) (laboratory drug report inadmissible
under state hearsay rule); Spears v. State, 241 So. 2d 148
(Miss. 1970) (nurse’s observation of victim inadmissible under
state hearsay rule and Constitution); State v. James, 255
S. C. 365, 179 S. E. 2d 41 (1971) (chemical analysis of victim’s
bodily fluid inadmissible under state hearsay rule); Cole v.
State, 839 S. W. 2d 798 (Tex. Crim. App. 1990) (laboratory
drug report inadmissible under state hearsay rule); State v.
Workman, 2005 UT 66, ¶¶ 9–20, 122 P. 3d 639, 642–643
(same); State v. Williams, 2002 WI 58, ¶¶ 32–62, 253 Wis. 2d
99, 118–127, 644 N. W. 2d 919, 928–932 (same), but see id., at
109–117, 644 N. W. 2d, at 924–927 (no confrontation violation
where expert testified based on test results prepared by an
out-of-court analyst).

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This summary does not include decisions that find test re
sults inadmissible because the State failed to lay a proper
foundation. Rather than endorse the minority view, those
cases merely reaffirm the government’s burden to prove the
authenticity of its evidence and the applicability of an excep
tion to the state hearsay rule. See, e. g., State v. Fisher, 178
N. W. 2d 380 (Iowa 1970) (laboratory test of victim’s bodily
fluid inadmissible under business-records exception because
the prosecution did not show that it was kept in regular
course of business); State v. Foster, 198 Kan. 52, 422 P. 2d
964 (1967) (no foundation laid for introduction of blood
alcohol test because the prosecution did not show that the
test was conducted in the usual course of business); Moon v.
State, 300 Md. 354, 367–371, 478 A. 2d 695, 702–703 (1984)
(blood-alcohol test inadmissible because insufficient founda
tional evidence that the test was conducted in a reliable man
ner); cf. Davis, supra, at 440 (laboratory test of victim’s
bodily fluid admitted under business-records exception to
state hearsay rule); Garlick, supra, at 215, n. 2, 223–225, 545
A. 2d, at 30, n. 2, 34 (laboratory test of defendant’s blood falls
within “firmly rooted” hearsay exception).
Three States once espoused the minority view but appear
to have changed course to some degree: People v. Lewis, 294
Mich. 684, 293 N. W. 907 (1940) (hospital record describing
victim’s injuries inadmissible hearsay), overruled by Kirt
doll, 391 Mich., at 372, 217 N. W. 2d, at 39 (noting that “[i]n
its 35-year-long history, Lewis . . . has never been relied upon
to actually deny admission into evidence of a business entry
record in a criminal case”), but see People v. McDaniel, 469
Mich. 409, 670 N. W. 2d 659 (2003) (per curiam) (police labo
ratory report inadmissible hearsay); State v. Tims, 9 Ohio
St. 2d 136, 137–138, 224 N. E. 2d 348, 350 (1967) (hospital
record describing victim’s injuries inadmissible hearsay),
overruled by Spikes, 67 Ohio St. 2d, at 411–415, 423 N. E.
2d, at 1128–1130; State v. Henderson, 554 S. W. 2d 117 (Tenn.
1977) (laboratory drug report inadmissible absent confronta

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tion), abrogated by statute as recognized by Hughes, 713
S. W. 2d 58 (statute permitted defendant to subpoena analyst
who prepared blood-alcohol report; by not doing so, defend
ant waived his right to confront the analyst).