Melendez-Diaz v. Massachusetts

(Slip Opinion) OCTOBER TERM, 2008 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

MELENDEZ-DIAZ v. MASSACHUSETTS

CERTIORARI TO THE APPEALS COURT OF MASSACHUSETTS

No. 07–591. Argued November 10, 2008—Decided June 25, 2009
At petitioner’s state-court drug trial, the prosecution introduced certifi
cates of state laboratory analysts stating that material seized by po
lice and connected to petitioner was cocaine of a certain quantity. As
required by Massachusetts law, the certificates were sworn to before
a notary public and were submitted as prima facie evidence of what
they asserted. Petitioner objected, asserting that Crawford v. Wash
ington, 541 U. S. 36, required the analysts to testify in person. The
trial court disagreed, the certificates were admitted, and petitioner
was convicted. The Massachusetts Appeals Court affirmed, rejecting
petitioner’s claim that the certificates’ admission violated the Sixth
Amendment.
Held: The admission of the certificates violated petitioner’s Sixth
Amendment right to confront the witnesses against him. Pp. 3–23.
(a) Under Crawford, a witness’s testimony against a defendant is
inadmissible unless the witness appears at trial or, if the witness is
unavailable, the defendant had a prior opportunity for 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 sub
stance found in petitioner’s possession was, as the prosecution
claimed, cocaine of a certain weight—the precise testimony the ana
lysts would be expected to provide if called at trial. Not only were the
certificates made, as Crawford required for testimonial statements,
“under circumstances which would lead an objective witness rea
sonably to believe that the statement would be available for use at a
later trial,” id., at 52, but under the relevant Massachusetts law their
sole purpose was to provide prima facie evidence of the substance’s
composition, quality, and net weight. Petitioner was entitled to “be
confronted with” the persons giving this testimony at trial. Id., at 54.
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Syllabus

Pp. 3–5.
(b) The arguments advanced to avoid this rather straightforward
application of Crawford are rejected. Respondent’s claim that the
analysts are not subject to confrontation because they are not “accu
satory” witnesses finds no support in the Sixth Amendment’s text or
in this Court’s case law. The affiants’ testimonial statements were
not “nearly contemporaneous” with their observations, nor, if they
had been, would that fact alter the statements’ testimonial character.
There is no support for the proposition that witnesses who testify re
garding facts other than those observed at the crime scene are ex
empt 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 of
ficial or business records. The argument that the analysts should not
be subject to confrontation because their statements result from neu
tral 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 trustworthi
ness” 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 re
laxed because they make the prosecution’s task burdensome. In any
event, the practice in many States already accords with today’s deci
sion, and the serious disruption predicted by respondent and the dis
sent has not materialized. Pp. 5–23.
69 Mass. App. 1114, 870 N. E. 2d 676, reversed and remanded.

SCALIA, J., delivered the opinion of the Court, in which STEVENS,
SOUTER, THOMAS, and GINSBURG, JJ., joined. THOMAS, J., filed a concur
ring opinion. KENNEDY, J., filed a dissenting opinion, in which ROB-
ERTS, C. J., and BREYER and ALITO, JJ., joined.
 Cite as: 557 U. S. ____ (2009) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 07–591
_________________

LUIS E. MELENDEZ-DIAZ, PETITIONER v.

MASSACHUSETTS

ON WRIT OF CERTIORARI TO THE APPEALS COURT OF

MASSACHUSETTS

[June 25, 2009]

JUSTICE SCALIA delivered the opinion of the Court.
The Massachusetts courts in this case admitted into
evidence affidavits reporting the results of forensic analy
sis which showed that material seized by the police and
connected to the defendant was cocaine. The question
presented is whether those affidavits are “testimonial,”
rendering the affiants “witnesses” subject to the defen
dant’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 suspi
cious activity. The informant reported that Wright re
peatedly received phone calls at work, after each of which
he would be picked up in front of the store by a blue sedan,
and would return to the store a short time later. The
police set up surveillance in the Kmart parking lot and
witnessed this precise sequence of events. When Wright
got out of the car upon his return, one of the officers de
tained and searched him, finding four clear white plastic
bags containing a substance resembling cocaine. The
officer then signaled other officers on the scene to arrest
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Opinion of the Court

the two men in the car—one of whom was petitioner Luis
Melendez-Diaz. The officers placed all three men in a
police cruiser.
During the short drive to the police station, the officers
observed their passengers fidgeting and making furtive
movements in the back of the car. After depositing the
men at the station, they searched the police cruiser and
found a plastic bag containing 19 smaller plastic bags
hidden in the partition between the front and back seats.
They submitted the seized evidence to a state laboratory
required by law to conduct chemical analysis upon police
request. Mass. Gen. Laws, ch. 111, §12 (West 2006).
Melendez-Diaz was charged with distributing cocaine
and with trafficking in cocaine in an amount between 14
and 28 grams. Ch. 94C, §§32A, 32E(b)(1). At trial, the
prosecution placed into evidence the bags seized from
Wright and from the police cruiser. It also submitted
three “certificates of analysis” showing the results of the
forensic analysis performed on the seized substances. The
certificates reported the weight of the seized bags and
stated that the bags “[h]a[ve] been examined with the
following results: The substance was found to contain:
Cocaine.” App. to Pet. for Cert. 24a, 26a, 28a. The certifi
cates were sworn to before a notary public by analysts at
the State Laboratory Institute of the Massachusetts De
partment of Public Health, as required under Massachu
setts law. Mass. Gen. Laws, ch. 111, §13.
Petitioner objected to the admission of the certificates,
asserting that our Confrontation Clause decision in Craw
ford v. Washington, 541 U. S. 36 (2004), required the
analysts to testify in person. The objection was overruled,
and the certificates were admitted pursuant to state law
as “prima facie evidence of the composition, quality, and
the net weight of the narcotic . . . analyzed.” Mass. Gen.
Laws, ch. 111, §13.
The jury found Melendez-Diaz guilty. He appealed,
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Opinion of the Court

contending, among other things, that admission of the
certificates violated his Sixth Amendment right to be
confronted with the witnesses against him. The Appeals
Court of Massachusetts rejected the claim, affirmance
order, 69 Mass. App. 1114, 870 N. E. 2d 676, 2007 WL
2189152, *4, n. 3 (July 31, 2007), relying on the Massa
chusetts Supreme Judicial Court’s decision in Common
wealth v. Verde, 444 Mass. 279, 283–285, 827 N. E. 2d 701,
705–706 (2005), which held that the authors of certificates
of forensic analysis are not subject to confrontation under
the Sixth Amendment. The Supreme Judicial Court de
nied review. 449 Mass. 1113, 874 N. E. 2d 407 (2007). We
granted certiorari. 552 U. S. ___ (2008).
II
The Sixth Amendment to the United States Constitu
tion, made applicable to the States via the Fourteenth
Amendment, Pointer v. Texas, 380 U. S. 400, 403 (1965),
provides that “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the wit
nesses against him.” In Crawford, after reviewing the
Clause’s historical underpinnings, we held that it guaran
tees a defendant’s right to confront those “who ‘bear testi
mony’ ” against him. 541 U. S., at 51. A witness’s testi
mony against a defendant is thus inadmissible unless the
witness appears at trial or, if the witness is unavailable,
the defendant had a prior opportunity for cross
examination. Id., at 54.
Our opinion described the class of testimonial state
ments covered by the Confrontation Clause as follows:
“Various formulations of this core class of testimo
nial statements exist: ex parte in-court testimony or
its functional equivalent—that is, material such as af
fidavits, custodial examinations, prior testimony that
the defendant was unable to cross-examine, or similar
pretrial statements that declarants would reasonably
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expect to be used prosecutorially; extrajudicial state
ments . . . contained in formalized testimonial materi
als, such as affidavits, depositions, prior testimony, or
confessions; statements that were made under cir
cumstances 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 (inter
nal quotation marks and citations omitted).
There is little doubt that the documents at issue in this
case fall within the “core class of testimonial statements”
thus described. Our description of that category mentions
affidavits twice. See also White v. Illinois, 502 U. S. 346,
365 (1992) (THOMAS, J., concurring in part and concurring
in judgment) (“[T]he Confrontation Clause is implicated by
extrajudicial statements only insofar as they are contained
in formalized testimonial materials, such as affidavits,
depositions, prior testimony, or confessions”). The docu
ments at issue here, while denominated by Massachusetts
law “certificates,” are quite plainly affidavits: “declara
tion[s] of facts written down and sworn to by the declarant
before an officer authorized to administer oaths.” Black’s
Law Dictionary 62 (8th ed. 2004). They are incontroverti
bly a “ ‘solemn declaration or affirmation made for the
purpose of establishing or proving some fact.’ ” Crawford,
supra, at 51 (quoting 2 N. Webster, An American Diction
ary of the English Language (1828)). The fact in question
is that the substance 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 “certifi
cates” are functionally identical to live, in-court testimony,
doing “precisely what a witness does on direct examina
tion.” Davis v. Washington, 547 U. S. 813, 830 (2006)
(emphasis deleted).
Here, moreover, not only were the affidavits “ ‘made
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Opinion of the Court

under circumstances which would lead an objective wit
ness reasonably to believe that the statement would be
available for use at a later trial,’ ” Crawford, supra, at 52,
but under Massachusetts law the sole purpose of the affi
davits was to provide “prima facie evidence of the composi
tion, quality, and the net weight” of the analyzed sub
stance, Mass. Gen. Laws, ch. 111, §13. We can safely
assume that the analysts were aware of the affidavits’
evidentiary purpose, since that purpose—as stated in the
relevant state-law provision—was reprinted on the affida
vits themselves. See App. to Pet. for Cert. 25a, 27a, 29a.
In short, under our decision in Crawford the analysts’
affidavits were testimonial statements, and the analysts
were “witnesses” for purposes of the Sixth Amendment.
Absent a showing that the analysts were unavailable to
testify at trial and that petitioner had a prior opportunity
to cross-examine them, petitioner was entitled to “ ‘be
confronted with’ ” the analysts at trial. Crawford, supra,
at 54.1
III
Respondent and the dissent advance a potpourri of
——————
1 Contrary to the dissent’s suggestion, post, at 3–4, 7 (opinion of KEN-
NEDY, J.), we do not hold, and it is not the case, that anyone whose
testimony may be relevant in establishing the chain of custody, authen
ticity of the sample, or accuracy of the testing device, must appear in
person as part of the prosecution’s case. While the dissent is correct
that “[i]t is the obligation of the prosecution to establish the chain of
custody,” post, at 7, this does not mean that everyone who laid hands on
the evidence must be called. As stated in the dissent’s own quotation,
ibid., from United States v. Lott, 854 F. 2d 244, 250 (CA7 1988), “gaps
in the chain [of custody] normally go to the weight of the evidence
rather than its admissibility.” It is up to the prosecution to decide what
steps in the chain of custody are so crucial as to require evidence; but
what testimony is introduced must (if the defendant objects) be intro
duced live. Additionally, documents prepared in the regular course of
equipment maintenance may well qualify as nontestimonial records.
See infra, at 15–16, 18.
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analytic arguments in an effort to avoid this rather
straightforward application of our holding in Crawford.
Before addressing them, however, we must assure the
reader of the falsity of the dissent’s opening alarum that
we are “sweep[ing] away an accepted rule governing the
admission of scientific evidence” that has been “estab
lished for at least 90 years” and “extends across at least 35
States and six Federal Courts of Appeals.” Post, at 1
(opinion of KENNEDY, J.).
The vast majority of the state-court cases the dissent
cites in support of this claim come not from the last 90
years, but from the last 30, and not surprisingly nearly all
of them rely on our decision in Ohio v. Roberts, 448 U. S.
56 (1980), or its since-rejected theory that unconfronted
testimony was admissible as long as it bore indicia of
reliability, id., at 66. See post, at 30.2 As for the six Fed
eral Courts of Appeals cases cited by the dissent, five of
them postdated and expressly relied on Roberts. See post,
at 21–22. The sixth predated Roberts but relied entirely
on the same erroneous theory. See Kay v. United States,
255 F. 2d 476, 480–481 (CA4 1958) (rejecting confronta
tion 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 con
frontation with respect to certificates of analysis regarding
a substance’s alcohol content. See post, at 21 (citing cases
——————
2 The exception is a single pre-Roberts case that relied on longstand

ing Massachusetts precedent. See Commonwealth v. Harvard, 356
Mass. 452, 462, 253 N. E. 2d 346, 352 (1969). Others are simply irrele
vant, since they involved medical reports created for treatment pur
poses, 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. Gar
lick, 313 Md. 209, 223–225, 545 A. 2d 27, 34–35 (1998).
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Opinion of the Court

from Massachusetts, Connecticut, and Virginia). But
other state courts in the same era reached the opposite
conclusion. See Torres v. State, 18 S. W. 2d 179, 180 (Tex.
Crim. App. 1929); Volrich v. State, No. 278, 1925 WL 2473
(Ohio App., Nov. 2, 1925). At least this much is entirely
clear: In faithfully applying Crawford to the facts of this
case, we are not overruling 90 years of settled jurispru
dence. It is the dissent that seeks to overturn precedent
by resurrecting Roberts a mere five years after it was
rejected in Crawford.
We turn now to the various legal arguments raised by
respondent and the dissent.
A
Respondent first argues that the analysts are not sub
ject to confrontation because they are not “accusatory”
witnesses, in that they do not directly accuse petitioner of
wrongdoing; rather, their testimony is inculpatory only
when taken together with other evidence linking peti
tioner to the contraband. See Brief for Respondent 10.
This finds no support in the text of the Sixth Amendment
or in our case law.
The Sixth Amendment 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 testi
mony against petitioner, proving one fact necessary for his
conviction—that the substance he possessed was cocaine.
The contrast between the text of the Confrontation Clause
and the text of the adjacent Compulsory Process Clause
confirms this analysis. While the Confrontation Clause
guarantees a defendant the right to be confronted with the
witnesses “against him,” the Compulsory Process Clause
guarantees a defendant the right to call witnesses “in his
favor.” U. S. Const., Amdt. 6. The text of the Amendment
contemplates two classes of witnesses—those against the
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defendant and those in his favor. The prosecution must
produce the former;3 the defendant may call the latter.
Contrary to respondent’s assertion, there is not a third
category of witnesses, helpful to the prosecution, but
somehow immune from confrontation.
It is often, indeed perhaps usually, the case that an
adverse witness’s testimony, taken alone, will not suffice
to convict. Yet respondent fails to cite a single case in
which such testimony was admitted absent a defendant’s
opportunity to cross-examine.4 Unsurprisingly, since such
a holding would be contrary to longstanding case law. In
Kirby v. United States, 174 U. S. 47 (1899), the Court
considered Kirby’s conviction for receiving stolen property,
the evidence for which consisted, in part, of the records of
conviction of three individuals who were found guilty of
stealing the relevant property. Id., at 53. Though this
evidence proved only that the property was stolen, and not
that Kirby received it, the Court nevertheless ruled that
admission of the records violated Kirby’s rights under the
Confrontation Clause. Id., at 55. See also King v. Turner,
1 Mood. 347, 168 Eng. Rep. 1298 (1832) (confession by one
defendant to having stolen certain goods could not be used
——————
3 The right to confrontation may, of course, be waived, including by

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

(1998). That case did indeed distinguish between evidence that is
“incriminating on its face” and evidence that “bec[omes] incriminating
. . . only when linked with evidence introduced later at trial, ” id., at
191 (internal quotation marks omitted). But it did so for the entirely
different purpose of determining when a nontestifying codefendant’s
confession, redacted to remove all mention of the defendant, could be
admitted into evidence with instruction for the jury not to consider the
confession as evidence against the nonconfessor. The very premise of
the case was that, without the limiting instruction even admission of a
redacted confession containing evidence of the latter sort would have
violated the defendant’s Sixth Amendment rights. See id., at 190–191.
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Opinion of the Court

as evidence against another defendant accused of receiv
ing the stolen property).
B
Respondent and the dissent argue that the analysts
should not be subject to confrontation because they are not
“conventional” (or “typical” or “ordinary”) witnesses of the
sort whose ex parte testimony was most notoriously used
at the trial of Sir Walter Raleigh. Post, at 15–16; Brief for
Respondent 28. It is true, as the Court recognized in
Crawford, that ex parte examinations of the sort used at
Raleigh’s trial have “long been thought a paradigmatic
confrontation violation.” 541 U. S., at 52. But the para
digmatic case identifies the core of the right to confronta
tion, not its limits. The right to confrontation was not
invented in response to the use of the ex parte examina
tions in Raleigh’s Case, 2 How. St. Tr. 1 (1603). That use
provoked such an outcry precisely because it flouted the
deeply rooted common-law tradition “of live testimony in
court subject to adversarial testing.” Crawford, supra, at
43 (citing 3 W. Blackstone, Commentaries on the Laws of
England 373–374 (1768)). See also Crawford, supra, at
43–47.
In any case, the purported distinctions respondent and
the dissent identify between this case and Sir Walter
Raleigh’s “conventional” accusers do not survive scrutiny.
The dissent first contends that a “conventional witness
recalls events observed in the past, while an analyst’s
report contains near-contemporaneous observations of the
test.” Post, at 16–17. It is doubtful that the analyst’s
reports in this case could be characterized as reporting
“near-contemporaneous observations”; the affidavits were
completed almost a week after the tests were performed.
See App. to Pet. for Cert. 24a–29a (the tests were per
formed on November 28, 2001, and the affidavits sworn on
December 4, 2001). But regardless, the dissent misunder
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stands the role that “near-contemporaneity” has played in
our case law. The dissent notes that that factor was given
“substantial weight” in Davis, post, at 17, but in fact that
decision disproves the dissent’s position. There the Court
considered the admissibility of statements made to police
officers responding to a report of a domestic disturbance.
By the time officers arrived the assault had ended, but the
victim’s statements—written and oral—were sufficiently
close in time to the alleged assault that the trial court
admitted her affidavit as a “present sense impression.”
Davis, 547 U. S., at 820 (internal quotation marks omit
ted). Though the witness’s statements in Davis were
“near-contemporaneous” to the events she reported, we
nevertheless held that they could not be admitted absent
an opportunity to confront the witness. Id., at 830.
A second reason the dissent contends that the analysts
are not “conventional witnesses” (and thus not subject to
confrontation) is that they “observe[d] neither the crime
nor any human action related to it.” Post, at 17. The
dissent provides no authority for this particular limitation
of the type of witnesses subject to confrontation. Nor is it
conceivable that all witnesses who fit this description
would be outside the scope of the Confrontation Clause.
For example, is a police officer’s investigative report de
scribing the crime scene admissible absent an opportunity
to examine the officer? The dissent’s novel exception from
coverage of the Confrontation Clause would exempt all
expert witnesses—a hardly “unconventional” class of
witnesses.
A third respect in which the dissent asserts that the
analysts are not “conventional” witnesses and thus not
subject to confrontation is that their statements were not
provided in response to interrogation. Ibid. See also Brief
for Respondent 29. As we have explained, “[t]he Framers
were no more willing to exempt from cross-examination
volunteered testimony or answers to open-ended questions
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than they were to exempt answers to detailed interroga
tion.” Davis, supra, at 822–823, n. 1. Respondent and the
dissent cite no authority, and we are aware of none, hold
ing that a person who volunteers his testimony is any less
a “ ‘witness against’ the defendant,” Brief for Respondent
26, than one who is responding to interrogation. In any
event, the analysts’ affidavits in this case were presented
in response to a police request. See Mass. Gen. Laws, ch.
111, §§12–13. If an affidavit submitted in response to a
police officer’s request to “write down what happened”
suffices to trigger the Sixth Amendment’s protection (as it
apparently does, see Davis, 547 U. S., at 819–820; id., at
840, n. 5 (THOMAS, J., concurring in judgment in part and
dissenting in part)), then the analysts’ testimony should
be subject to confrontation as well.
C
Respondent claims that there is a difference, for Con
frontation Clause purposes, between testimony recounting
historical events, which is “prone to distortion or manipu
lation,” and the testimony at issue here, which is the
“resul[t] of neutral, scientific testing.” Brief for Respon
dent 29. Relatedly, respondent and the dissent argue that
confrontation of forensic analysts would be of little value
because “one would not reasonably expect a laboratory
professional . . . to feel quite differently about the results
of his scientific test by having to look at the defendant.”
Id., at 31 (internal quotation marks omitted); see post, at
10–11.
This argument is little more than an invitation to return
to our overruled decision in Roberts, 448 U. S. 56, which
held that evidence with “particularized guarantees of
trustworthiness” was admissible notwithstanding the
Confrontation Clause. Id., at 66. What we said in Craw
ford in response to that argument remains true:
“To be sure, the Clause’s ultimate goal is to ensure re
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liability 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 be
cause testimony is obviously reliable is akin to dis
pensing with jury trial because a defendant is obvi
ously 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 Constitu
tion guarantees one way: confrontation. We do not have
license to suspend the Confrontation Clause when a pref
erable trial strategy is available.
Nor is it evident that what respondent calls “neutral
scientific testing” is as neutral or as reliable as respondent
suggests. Forensic evidence is not uniquely immune from
the risk of manipulation. According to a recent study
conducted under the auspices of the National Academy of
Sciences, “[t]he majority of [laboratories producing foren
sic evidence] are administered by law enforcement agen
cies, such as police departments, where the laboratory
administrator reports to the head of the agency.” National
Research Council of the National Academies, Strengthen
ing Forensic Science in the United States: A Path Forward
6–1 (Prepublication Copy Feb. 2009) (hereinafter National
Academy Report). And “[b]ecause forensic scientists often
are driven in their work by a need to answer a particular
question related to the issues of a particular case, they
sometimes face pressure to sacrifice appropriate method
ology for the sake of expediency.” Id., at S–17. A forensic
——————
5 Though surely not always. Some forensic analyses, such as autop

sies and breathalyzer tests, cannot be repeated, and the specimens used
for other analyses have often been lost or degraded.
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analyst responding to a request from a law enforcement
official may feel pressure—or have an incentive—to alter
the evidence in a manner favorable to the prosecution.
Confrontation is one means of assuring accurate forensic
analysis. While it is true, as the dissent notes, that an
honest analyst will not alter his testimony when forced to
confront the defendant, post, at 10, the same cannot be
said of the fraudulent analyst. See Brief for National
Innocence Network as Amicus Curiae 15–17 (discussing
cases of documented “drylabbing” where forensic analysts
report results of tests that were never performed); Na
tional Academy Report 1–8 to 1–10 (discussing docu
mented cases of fraud and error involving the use of foren
sic evidence). Like the eyewitness who has fabricated his
account to the police, the analyst who provides false re
sults may, under oath in open court, reconsider his false
testimony. See Coy v. Iowa, 487 U. S. 1012, 1019 (1988).
And, of course, the prospect of confrontation will deter
fraudulent analysis in the first place.
Confrontation is designed to weed out not only the
fraudulent analyst, but the incompetent one as well.
Serious deficiencies have been found in the forensic evi
dence used in criminal trials. One commentator asserts
that “[t]he legal community now concedes, with varying
degrees of urgency, that our system produces erroneous
convictions based on discredited forensics.” Metzger,
Cheating the Constitution, 59 Vand. L. Rev. 475, 491
(2006). One study of cases in which exonerating evidence
resulted in the overturning of criminal convictions con
cluded that invalid forensic testimony contributed to the
convictions in 60% of the cases. Garrett & Neufeld, Inva
lid 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
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search and practice, has serious problems that can
only be addressed by a national commitment to over
haul the current structure that supports the forensic
science community in this country.” National Acad
emy Report P–1 (emphasis in original).6
Like expert witnesses generally, an analyst’s lack of
proper training or deficiency in judgment may be disclosed
in cross-examination.
This case is illustrative. The affidavits submitted by the
analysts contained only the bare-bones statement that
“[t]he substance was found to contain: Cocaine.” App. to
Pet. for Cert. 24a, 26a, 28a. At the time of trial, petitioner
did not know what tests the analysts performed, whether
those tests were routine, and whether interpreting their
results required the exercise of judgment or the use of
skills that the analysts may not have possessed. While we
still do not know the precise tests used by the analysts, we
are told that the laboratories use “methodology recom
mended by the Scientific Working Group for the Analysis
of Seized Drugs,” App. to Brief for Petitioner 1a–2a. At
least some of that methodology requires the exercise of
judgment and presents a risk of error that might be ex
plored on cross-examination. See 2 P. Giannelli & E.
Imwinkelried, Scientific Evidence §23.03[c], pp. 532–533,
ch. 23A, p. 607 (4th ed. 2007) (identifying four “critical
errors” that analysts may commit in interpreting the
——————
6 Contrary to the dissent’s suggestion, post, at 23, we do not “rel[y] in

such great measure” on the deficiencies of crime-lab analysts shown by
this report to resolve the constitutional question presented in this case.
The analysts who swore the affidavits provided testimony against
Melendez-Diaz, and they are therefore subject to confrontation; we
would reach the same conclusion if all analysts always possessed the
scientific acumen of Mme. Curie and the veracity of Mother Teresa.
We discuss the report only to refute the suggestion that this category of
evidence is uniquely reliable and that cross-examination of the analysts
would be an empty formalism.
 Cite as: 557 U. S. ____ (2009) 15

Opinion of the Court

results of the commonly used gas chromatography/mass
spectrometry analysis); Shellow, The Application of
Daubert to the Identification of Drugs, 2 Shepard’s Expert
& Scientific Evidence Quarterly 593, 600 (1995) (noting
that while spectrometers may be equipped with computer
ized matching systems, “forensic analysts in crime labora
tories typically do not utilize this feature of the instru
ment, but rely exclusively on their subjective judgment”).
The same is true of many of the other types of forensic
evidence commonly used in criminal prosecutions.
“[T]here is wide variability across forensic science disci
plines with regard to techniques, methodologies, reliabil
ity, types and numbers of potential errors, research, gen
eral acceptability, and published material.” National
Academy Report S–5. See also id., at 5–9, 5–12, 5–17, 5–
21 (discussing problems of subjectivity, bias, and unreli
ability of common forensic tests such as latent fingerprint
analysis, pattern/impression analysis, and toolmark and
firearms analysis). Contrary to respondent’s and the
dissent’s suggestion, there is little reason to believe that
confrontation will be useless in testing analysts’ honesty,
proficiency, and methodology—the features that are com
monly the focus in the cross-examination of experts.
D
Respondent argues that the analysts’ affidavits are
admissible without confrontation because they are “akin to
the types of official and business records admissible at
common law.” Brief for Respondent 35. But the affidavits
do not qualify as traditional official or business records,
and even if they did, their authors would be subject to
confrontation nonetheless.
Documents kept in the regular course of business may
ordinarily be admitted at trial despite their hearsay
status. See Fed. Rule Evid. 803(6). But that is not the
case if the regularly conducted business activity is the
16 MELENDEZ-DIAZ v. MASSACHUSETTS

Opinion of the Court

production of evidence for use at trial. Our decision in
Palmer v. Hoffman, 318 U. S. 109 (1943), made that dis
tinction clear. There we held that an accident report
provided by an employee of a railroad company did not
qualify as a business record because, although kept in the
regular course of the railroad’s operations, it was “calcu
lated for use essentially in the court, not in the business.”
Id., at 114.7 The analysts’ certificates—like police reports
generated by law enforcement officials—do not qualify as
business or public records for precisely the same reason.
See Rule 803(8) (defining public records as “excluding,
however, in criminal cases matters observed by police
officers and other law enforcement personnel”).
Respondent seeks to rebut this limitation by noting that
at common law the results of a coroner’s inquest were
admissible without an opportunity for confrontation. But
as we have previously noted, whatever the status of coro
ner’s reports at common law in England, they were not
accorded any special status in American practice. See
Crawford, 541 U. S., at 47, n. 2; Giles v. California, 554
U. S. ___, ___ (2008) (slip op., at 20) (BREYER, J., dissent
ing); 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 admis
sible: a clerk’s certificate authenticating an official re
cord—or a copy thereof—for use as evidence. See post, at
19. But a clerk’s authority in that regard was narrowly
circumscribed. He was permitted “to certify to the cor
rectness of a copy of a record kept in his office,” but had
——————
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) (admit
ting into evidence ship’s muster-book); King v. Martin, 2 Camp. 100,
101, 170 Eng. Rep. 1094, 1095 (1809) (vestry book); King v. Aickles, 1
Leach 390, 391–392, 168 Eng. Rep. 297, 298 (1785) (prison logbook).
 Cite as: 557 U. S. ____ (2009) 17

Opinion of the Court

“no authority to furnish, as evidence for the trial of a
lawsuit, his interpretation of what the record contains or
shows, or to certify to its substance or effect.” State v.
Wilson, 141 La. 404, 409, 75 So. 95, 97 (1917). See also
State v. Champion, 116 N. C. 987, 21 S. E. 700, 700–701
(1895); 5 J. Wigmore, Evidence §1678 (3d ed. 1940). The
dissent suggests that the fact that this exception was
“ ‘narrowly circumscribed’ ” makes no difference. See post,
at 20. To the contrary, it makes all the difference in the
world. It shows that even the line of cases establishing
the one narrow exception the dissent has been able to
identify simultaneously vindicates the general rule appli
cable to the present case. A clerk could by affidavit au
thenticate or provide a copy of an otherwise admissible
record, but could not do what the analysts did here: create
a record for the sole purpose of providing evidence against
a defendant.8
Far more probative here are those cases in which the
prosecution sought to admit into evidence a clerk’s certifi
cate attesting to the fact that the clerk had searched for a
particular relevant record and failed to find it. Like the
testimony of the analysts in this case, the clerk’s state
ment would serve as substantive evidence against the
defendant whose guilt depended on the nonexistence of the
record for which the clerk searched. Although the clerk’s
certificate would qualify as an official record under re
spondent’s definition—it was prepared by a public officer
in the regular course of his official duties—and although
——————
8 The dissent’s reliance on our decision in Dowdell v. United States,
221 U. S. 325 (1911), see post, at 20 (opinion of KENNEDY, J.), is simi
larly misplaced. As the opinion stated in Dowdell—and as this Court
noted in Davis v. Washington, 547 U. S. 813, 825 (2006)—the judge and
clerk who made the statements at issue in Dowdell were not witnesses
for purposes of the Confrontation Clause because their statements
concerned only the conduct of defendants’ prior trial, not any facts
regarding defendants’ guilt or innocence. 221 U. S., at 330–331.
18 MELENDEZ-DIAZ v. MASSACHUSETTS

Opinion of the Court

the clerk was certainly not a “conventional witness” under
the dissent’s approach, the clerk was nonetheless subject
to confrontation. See People v. Bromwich, 200 N. Y. 385,
388–389, 93 N. E. 933, 934 (1911); People v. Goodrode, 132
Mich. 542, 547, 94 N. W. 14, 16 (1903); Wigmore, supra,
§1678.9
Respondent also misunderstands the relationship be
tween the business-and-official-records hearsay exceptions
and the Confrontation Clause. As we stated in Crawford:
“Most of the hearsay exceptions covered statements that
by their nature were not testimonial—for example, busi
ness records or statements in furtherance of a conspiracy.”
541 U. S., at 56. Business and public records are generally
admissible absent confrontation not because they qualify
under an exception to the hearsay rules, but because—
having been created for the administration of an entity’s
affairs and not for the purpose of establishing or proving
some fact at trial—they are not testimonial. Whether or
not they qualify as business or official records, the ana
lysts’ statements here—prepared specifically for use at
petitioner’s trial—were testimony against petitioner, and
the analysts were subject to confrontation under the Sixth
Amendment.
E
Respondent asserts that we should find no Confronta
——————
9 An earlier line of 19th century state-court cases also supports the
notion that forensic analysts’ certificates were not admitted into evi
dence 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 adulter
ated milk—objected to the admission of the state chemists’ certificates
of analysis. In all three cases, the objection was defeated because the
chemist testified live at trial. That the prosecution came forward with
live witnesses in all three cases suggests doubt as to the admissibility
of the certificates without opportunity for cross-examination.
 Cite as: 557 U. S. ____ (2009) 19

Opinion of the Court

tion Clause violation in this case because petitioner had
the ability to subpoena the analysts. But that power—
whether pursuant to state law or the Compulsory Process
Clause—is no substitute for the right of confrontation.
Unlike the Confrontation Clause, those provisions are of
no use to the defendant when the witness is unavailable or
simply refuses to appear. See, e.g., Davis, 547 U. S., at
820 (“[The witness] was subpoenaed, but she did not ap
pear at . . . trial”). Converting the prosecution’s duty
under the Confrontation Clause into the defendant’s privi
lege 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 Con
frontation 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 pre
sents its evidence via ex parte affidavits and waits for the
defendant to subpoena the affiants if he chooses.
F
Finally, respondent asks us to relax the requirements of
the Confrontation Clause to accommodate the “ ‘necessities
of trial and the adversary process.’ ” Brief for Respondent
59. It is not clear whence we would derive the authority to
do so. The Confrontation Clause may make the prosecu
tion of criminals more burdensome, but that is equally
true of the right to trial by jury and the privilege against
self-incrimination. The Confrontation Clause—like those
other constitutional provisions—is binding, and we may
not disregard it at our convenience.
We also doubt the accuracy of respondent’s and the
dissent’s dire predictions. The dissent, respondent, and its
amici highlight the substantial total number of controlled
substance analyses performed by state and federal labora
tories in recent years. But only some of those tests are
20 MELENDEZ-DIAZ v. MASSACHUSETTS

Opinion of the Court

implicated in prosecutions, and only a small fraction of
those cases actually proceed to trial. See Brief for Law
Professors as Amici Curiae 7–8 (nearly 95% of convictions
in state and federal courts are obtained via guilty plea).10
Perhaps the best indication that the sky will not fall
after today’s decision is that it has not done so already.
Many States have already adopted the constitutional rule
we announce today,11 while many others permit the defen
dant to assert (or forfeit by silence) his Confrontation
Clause right after receiving notice of the prosecution’s
intent to use a forensic analyst’s report, id., at 13–15
(cataloging such state laws). Despite these widespread
practices, there is no evidence that the criminal justice
system has ground to a halt in the States that, one way or
another, empower a defendant to insist upon the analyst’s
appearance at trial. Indeed, in Massachusetts itself, a
defendant may subpoena the analyst to appear at trial,
see Brief for Respondent 57, and yet there is no indication
——————
10 The dissent provides some back-of-the-envelope calculations re
garding the number of court appearances that will result from today’s
ruling. Post, at 13–14. Those numbers rely on various unfounded
assumptions: that the prosecution will place into evidence a drug
analysis certificate in every case; that the defendant will never stipu
late to the nature of the controlled substance; that even where no such
stipulation is made, every defendant will object to the evidence or
otherwise demand the appearance of the analyst. These assumptions
are wildly unrealistic, and, as discussed below, the figures they produce
do not reflect what has in fact occurred in those jurisdictions that have
already adopted the rule we announce today.
11 State v. Johnson, 982 So. 2d 672, 680–681 (Fla. 2008); 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); Barnette v. State, 481 So. 2d 788, 792
(Miss. 1985).
 Cite as: 557 U. S. ____ (2009) 21

Opinion of the Court

that obstructionist defendants are abusing the privilege.
The dissent finds this evidence “far less reassuring than
promised.” Post, at 28. But its doubts rest on two flawed
premises. First, the dissent believes that those state
statutes “requiring the defendant to give early notice of
his intent to confront the analyst,” are “burden-shifting
statutes [that] may be invalidated by the Court’s reason
ing.” Post, at 22, 28–29. That is not so. In their simplest
form, notice-and-demand statutes require the prosecution
to provide notice to the defendant of its intent to use an
analyst’s report as evidence at trial, after which the de
fendant is given a period of time in which he may object to
the admission of the evidence absent the analyst’s appear
ance live at trial. See, e.g, Ga. Code Ann. §35–3–154.1
(2006); Tex. Code Crim. Proc. Ann., Art. 38.41, §4 (Vernon
2005); Ohio Rev. Code Ann. §2925.51(C) (West 2006).
Contrary to the dissent’s perception, these statutes shift
no burden whatever. The defendant always has the bur
den of raising his Confrontation 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 common to require a defendant to
exercise his rights under the Compulsory Process Clause
in advance of trial, announcing his intent to present cer
tain witnesses. See Fed. Rules Crim. Proc. 12.1(a), (e),
16(b)(1)(C); Comment: Alibi Notice Rules: The Preclusion
Sanction as Procedural Default, 51 U. Chi. L. Rev. 254,
254–255, 281–285 (1984) (discussing and cataloguing
State notice-of-alibi rules); Taylor v. Illinois, 484 U. S.
400, 411 (1988); Williams v. Florida, 399 U. S. 78, 81–82
(1970). There is no conceivable reason why he cannot
similarly be compelled to exercise his Confrontation
Clause rights before trial. See Hinojos-Mendoza v. People,
169 P. 3d 662, 670 (Colo. 2007) (discussing and approving
Colorado’s notice-and-demand provision). Today’s decision
22 MELENDEZ-DIAZ v. MASSACHUSETTS

Opinion of the Court

will not disrupt criminal prosecutions in the many large
States whose practice is already in accord with the Con
frontation Clause.12
Second, the dissent notes that several of the state-court
cases that have already adopted this rule did so pursuant
to our decision in Crawford, and not “independently . . . as
a matter of state law.” Post, at 28. That may be so. But
in assessing the likely practical effects of today’s ruling, it
is irrelevant why those courts adopted this rule; it matters
only that they did so. It is true that many of these deci
sions are recent, but if the dissent’s dire predictions were
accurate, and given the large number of drug prosecutions
at the state level, one would have expected immediate and
dramatic results. The absence of such evidence is telling.
But it is not surprising. Defense attorneys and their
clients will often stipulate to the nature of the substance
in the ordinary drug case. It is unlikely that defense
counsel will insist on live testimony whose effect will be
merely to highlight rather than cast doubt upon the foren
sic analysis. Nor will defense attorneys want to antago
nize the judge or jury by wasting their time with the ap
pearance of a witness whose testimony defense counsel
does not intend to rebut in any fashion.13 The amicus brief
——————
12 As the dissent notes, post, at 27, some state statutes, “requir[e]
defense counsel to subpoena the analyst, to show good cause for de
manding the analyst’s presence, or even to affirm under oath an intent
to cross-examine the analyst.” We have no occasion today to pass on
the constitutionality of every variety of statute commonly given the
notice-and-demand label. It suffices to say that what we have referred
to as the “simplest form [of] notice-and-demand statutes,” supra, at 21,
is constitutional; that such provisions are in place in a number of
States; and that in those States, and in other States that require
confrontation without notice-and-demand, there is no indication that
the dire consequences predicted by the dissent have materialized.
13 Contrary to the dissent’s suggestion, post, at 24–25, we do not cast

aspersions on trial judges, who we trust will not be antagonized by
good-faith requests for analysts’ appearance at trial. Nor do we expect
 Cite as: 557 U. S. ____ (2009) 23

Opinion of the Court

filed by District Attorneys in Support of the Common
wealth in the Massachusetts Supreme Court case upon
which the Appeals Court here relied said that “it is almost
always the case that [analysts’ certificates] are admitted
without objection. Generally, defendants do not object to
the admission of drug certificates most likely because
there is no benefit to a defendant from such testimony.”
Brief for District Attorneys in Support of the Common
wealth in No. SJC–09320 (Mass.), p. 7 (footnote omitted).
Given these strategic considerations, and in light of the
experience in those States that already provide the same
or similar protections to defendants, there is little reason
to believe that our decision today will commence the pa
rade of horribles respondent and the dissent predict.
* * *
This case involves little more than the application of our
holding in Crawford v. Washington, 541 U. S. 36. The
Sixth Amendment does not permit the prosecution to
prove its case via ex parte out-of-court affidavits, and the
admission of such evidence against Melendez-Diaz was
error.14 We therefore reverse the judgment of the Appeals
Court of Massachusetts and remand the case for further
proceedings not inconsistent with this opinion.

It is so ordered.
——————
defense attorneys to refrain from zealous representation of their clients.
We simply do not expect defense attorneys to believe that their clients’
interests (or their own) are furthered by objections to analysts’ reports
whose conclusions counsel have no intention of challenging.
14 We of course express no view as to whether the error was harmless.

The Massachusetts Court of Appeals did not reach that question and
we decline to address it in the first instance. Cf. Coy v. Iowa, 487 U. S.
1012, 1021–1022 (1988). In connection with that determination,
however, we disagree with the dissent’s contention, post, at 25, that
“only an analyst’s testimony suffices to prove [the] fact” that “the
substance is cocaine.” Today’s opinion, while insisting upon retention
of the confrontation requirement, in no way alters the type of evidence
(including circumstantial evidence) sufficient to sustain a conviction.
 Cite as: 557 U. S. ____ (2009) 1

THOMAS, J., concurring

SUPREME COURT OF THE UNITED STATES
_________________

No. 07–591
_________________

LUIS E. MELENDEZ-DIAZ, PETITIONER v.

MASSACHUSETTS

ON WRIT OF CERTIORARI TO THE APPEALS COURT OF

MASSACHUSETTS

[June 25, 2009]

JUSTICE THOMAS, concurring.
I write separately to note that I continue to adhere to
my position that “the Confrontation Clause is implicated
by extrajudicial statements only insofar as they are con
tained in formalized testimonial materials, such as affida
vits, depositions, prior testimony, or confessions.” White v.
Illinois, 502 U. S. 346, 365 (1992) (opinion concurring in
part and concurring in judgment); see also Giles v. Cali
fornia, 554 U. S. ___, ___ (2008) (slip op., at 1) (concurring
opinion) (characterizing statements within the scope of the
Confrontation Clause to include those that are “suffi
ciently formal to resemble the Marian examinations”
because they were Mirandized or custodial or “accompa
nied 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 dis
senting in part) (reiterating that the Clause encompasses
extrajudicial statements contained in the types of formal
ized materials listed in White, supra, at 365. I join the
Court’s opinion in this case because the documents at
issue in this case “are quite plainly affidavits,” ante, at 4.
As such, they “fall within the core class of testimonial
statements” governed by the Confrontation Clause. Ibid.
(internal quotation marks omitted).
 Cite as: 557 U. S. ____ (2009) 1

KENNEDY, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 07–591
_________________

LUIS E. MELENDEZ-DIAZ, PETITIONER v.

MASSACHUSETTS

ON WRIT OF CERTIORARI TO THE APPEALS COURT OF

MASSACHUSETTS

[June 25, 2009]

JUSTICE KENNEDY, with whom THE CHIEF JUSTICE,
JUSTICE BREYER, and JUSTICE ALITO join, dissenting.
The Court sweeps away an accepted rule governing the
admission of scientific evidence. Until today, scientific
analysis could be introduced into evidence without testi­
mony from the “analyst” who produced it. This rule has
been established for at least 90 years. It extends across at
least 35 States and six Federal Courts of Appeals. Yet the
Court undoes it based on two recent opinions that say
nothing about forensic analysts: Crawford v. Washington,
541 U. S. 36 (2004), and Davis v. Washington, 547 U. S.
813 (2006).
It is remarkable that the Court so confidently disregards
a century of jurisprudence. We learn now that we have
misinterpreted the Confrontation Clause—hardly an
arcane or seldom-used provision of the Constitution—for
the first 218 years of its existence. The immediate sys­
temic concern is that the Court makes no attempt to ac­
knowledge the real differences between laboratory ana­
lysts who perform scientific tests and other, more
conventional witnesses—“witnesses” being the word the
2 MELENDEZ-DIAZ v. MASSACHUSETTS

KENNEDY, J., dissenting

Framers used in the Confrontation Clause.
Crawford and Davis dealt with ordinary witnesses—
women who had seen, and in two cases been the victim of,
the crime in question. Those cases stand for the proposi­
tion that formal statements made by a conventional wit­
ness—one who has personal knowledge of some aspect of
the defendant’s guilt—may not be admitted without the
witness appearing at trial to meet the accused face to face.
But Crawford and Davis do not say—indeed, could not
have said, because the facts were not before the Court—
that anyone who makes a testimonial statement is a wit­
ness 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 wit­
nesses, the Court should have done the sensible thing and
limited its holding to witnesses as so defined. Indeed, as
JUSTICE THOMAS warned in his opinion in Davis, the
Court’s approach has become “disconnected from history
and unnecessary to prevent abuse.” 547 U. S., at 838.
The Court’s reliance on the word “testimonial” is of little
help, of course, for that word does not appear in the text of
the Clause.
The Court dictates to the States, as a matter of 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 Confronta­
tion Clause did not bar its admission. Ohio v. Roberts, 448
U. S. 56, 66 (1980) (overruled by Crawford). Now, without
guidance from any established body of law, the States can
only guess what future rules this Court will distill from
the sparse constitutional text. See, e.g., Méndez, Craw
 Cite as: 557 U. S. ____ (2009) 3

KENNEDY, J., dissenting

ford v. Washington: A Critique, 57 Stan. L. Rev. 569, 586–
593 (2004) (discussing unanswered questions regarding
testimonial statements).
The Court’s opinion suggests this will be a body of for­
malistic and wooden rules, divorced from precedent, com­
mon sense, and the underlying purpose of the Clause. Its
ruling has vast potential to disrupt criminal procedures
that already give ample protections against the misuse of
scientific evidence. For these reasons, as more fully ex­
plained below, the Court’s opinion elicits my respectful
dissent.
I
A
1
The Court says that, before the results of a scientific
test may be introduced into evidence, the defendant has
the right to confront the “analyst.” Ante, at 4–5. One
must assume that this term, though it appears nowhere in
the Confrontation Clause, nevertheless has some constitu­
tional substance that now must be elaborated in future
cases. There is no accepted definition of analyst, and
there is no established precedent to define that term.
Consider how many people play a role in a routine test
for the presence of illegal drugs. One person prepares a
sample of the drug, places it in a testing machine, and
retrieves the machine’s printout—often, a graph showing
the frequencies of radiation absorbed by the sample or the
masses of the sample’s molecular fragments. See 2 P.
Giannelli & E. Imwinkelried, Scientific Evidence §23.03
(4th ed. 2007) (describing common methods of identifying
drugs, including infrared spectrophotometry, nuclear
magnetic resonance, gas chromatography, and mass spec­
trometry). A second person interprets the graph the ma­
chine prints out—perhaps by comparing that printout
with published, standardized graphs of known drugs.
4 MELENDEZ-DIAZ v. MASSACHUSETTS

KENNEDY, J., dissenting

Ibid. Meanwhile, a third person—perhaps an independent
contractor—has calibrated the machine and, having done
so, has certified that the machine is in good working order.
Finally, a fourth person—perhaps the laboratory’s direc­
tor—certifies that his subordinates followed established
procedures.
It is not at all evident which of these four persons is the
analyst to be confronted under the rule the Court an­
nounces today. If all are witnesses who must appear for
in-court confrontation, then the Court has, for all practical
purposes, forbidden the use of scientific tests in criminal
trials. As discussed further below, requiring even one of
these individuals to testify threatens to disrupt if not end
many prosecutions where guilt is clear but a newly found
formalism now holds sway. See Part I–C, infra.
It is possible to read the Court’s opinion, however, to say
that all four must testify. Each one has contributed to the
test’s result and has, at least in some respects, made a
representation about the test. Person One represents that
a pure sample, properly drawn, entered the machine and
produced a particular printout. Person Two represents
that the printout corresponds to a known drug. Person
Three represents that the machine was properly cali­
brated at the time. Person Four represents that all the
others performed their jobs in accord with established
procedures.
And each of the four has power to introduce error. A
laboratory technician might adulterate the sample. The
independent contractor might botch the machine’s calibra­
tion. And so forth. The reasons for these errors may
range from animus against the particular suspect or all
criminal suspects to unintentional oversight; from gross
negligence to good-faith mistake. It is no surprise that a
plausible case can be made for deeming each person in the
testing process an analyst under the Court’s opinion.
Consider the independent contractor who has calibrated
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KENNEDY, J., dissenting

the testing machine. At least in a routine case, where the
machine’s result appears unmistakable, that result’s
accuracy depends entirely on the machine’s calibration.
The calibration, in turn, can be proved only by the contrac­
tor’s certification that he or she did the job properly. That
certification appears to be a testimonial statement under
the Court’s definition: It is a formal, out-of-court state­
ment, offered for the truth of the matter asserted, and
made for the purpose of later prosecution. See ante, at 3–
5. It is not clear, under the Court’s ruling, why the inde­
pendent contractor is not also an analyst.
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 &
Imwinkelried, supra. If we assume no person deliberately
introduces error, this interpretive step is the one most
likely to permit human error to affect the test’s result.
This exercise of judgment might make this participant an
analyst. The Court implies as much. See ante, at 12–14.
And we must yet consider the laboratory director who
certifies the ultimate results. The director is arguably the
most effective person to confront for revealing any ambigu­
ity in findings, variations in procedures, or problems in
the office, as he or she is most familiar with the standard
procedures, the office’s variations, and problems in prior
cases or with particular analysts. The prosecution may
seek to introduce his or her certification into evidence.
The Court implies that only those statements that are
actually entered into evidence require confrontation. See
ante, at 4–5. This could mean that the director is also an
analyst, even if his or her certification relies upon or re­
states 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
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KENNEDY, J., dissenting

even know the accused, and is concerned only with the
performance of his or her role in conducting the test.
It could be argued that the only analyst who must tes­
tify is the person who signed the certificate. Under this
view, a laboratory could have one employee sign certifi­
cates and appear in court, which would spare all the other
analysts this burden. But the Court has already rejected
this arrangement. The Court made clear in Davis that it
will not permit the testimonial statement of one witness to
enter into evidence through the in-court testimony of a
second:
“[W]e do not think it conceivable that the protections
of the Confrontation Clause can readily be evaded by
having a note-taking policeman [here, the laboratory
employee who signs the certificate] recite the unsworn
hearsay testimony of the declarant [here, the analyst
who performs the actual test], instead of having the
declarant sign a deposition. Indeed, if there is one
point for which no case—English or early American,
state or federal—can be cited, that is it.” 547 U. S., at
826.
Under this logic, the Court’s holding cannot be cabined to
the person who signs the certificates. If the signatory is
restating the testimonial statements of the true analysts—
whoever they might be—then those analysts, too, must
testify in person.
Today’s decision demonstrates that even in the narrow
category of scientific tests that identify a drug, the Court
cannot define with any clarity who the analyst is. Outside
this narrow category, the range of other scientific tests
that may be affected by the Court’s new confrontation
right is staggering. See, e.g., Comment, Toward a Defini­
tion of “Testimonial”: How Autopsy Reports Do Not Em­
body the Qualities of a Testimonial Statement, 96 Cal. L.
Rev. 1093, 1094, 1115 (2008) (noting that every court post­
 Cite as: 557 U. S. ____ (2009) 7

KENNEDY, J., dissenting

Crawford has held that autopsy reports are not testimo­
nial, and warning that a contrary rule would “effectively
functio[n] as a statute of limitations for murder”).
2
It is difficult to confine at this point the damage the
Court’s holding will do in other contexts. Consider just
two—establishing the chain of custody and authenticating
a copy of a document.
It is the obligation of the prosecution to establish the
chain of custody for evidence sent to testing laboratories—
that is, to establish “the identity and integrity of physical
evidence by tracing its continuous whereabouts.” 23
C. J. S., Criminal Law §1142, p. 66 (2008). Meeting this
obligation requires representations—that one officer re­
trieved the evidence from the crime scene, that a second
officer checked it into an evidence locker, that a third
officer verified the locker’s seal was intact, and so forth.
The iron logic of which the Court is so enamored would
seem to require in-court testimony from each human link
in the chain of custody. That, of course, has never been
the law. See, e.g., United States v. Lott, 854 F. 2d 244, 250
(CA7 1988) (“[G]aps in the chain [of custody] normally go
to the weight of the evidence rather than its admissibil­
ity”); 29A Am. Jur. 2d, Evidence §962, p. 269 (2009) (“The
fact that one of the persons in control of a fungible sub­
stance does not testify at trial does not, without more,
make the substance or testimony relating to it inadmissi­
ble”); C. J. S., supra, §1142, at 67 (“It is generally not
necessary that every witness who handled the evidence
testify”).
It is no answer for the Court to say that “[i]t is up to the
prosecution to decide what steps in the chain of custody
are so crucial as to require evidence.” Ante, at 5, n. 1. The
case itself determines which links in the chain are cru­
cial—not the prosecution. In any number of cases, the
8 MELENDEZ-DIAZ v. MASSACHUSETTS

KENNEDY, J., dissenting

crucial link in the chain will not be available to testify
and so the evidence will be excluded for lack of a proper
foundation.
Consider another context in which the Court’s holding
may cause disruption: The long-accepted practice of au­
thenticating 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) (busi­
ness record must be “accompanied by a written declaration
of its custodian”). Under one possible reading of the
Court’s opinion, recordkeepers will be required to testify.
So far, courts have not read Crawford and Davis to impose
this largely meaningless requirement. See, e.g., United
States v. Adefehinti, 510 F. 3d 319, 327–328 (CADC 2008)
(certificates authenticating bank records may be admitted
without confrontation); United States v. Ellis, 460 F. 3d
920, 927 (CA7 2006) (certificate authenticating hospital
records). But the breadth of the Court’s ruling today, and
its undefined scope, may well be such that these courts
now must be deemed to have erred. The risk of that con­
sequence 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 pre­
dictability. There is nothing predictable here, however,
other than the uncertainty and disruption that now must
ensue.
B
With no precedent to guide us, let us assume that the
 Cite as: 557 U. S. ____ (2009) 9

KENNEDY, J., dissenting

Court’s analyst is the person who interprets the machine’s
printout. This result makes no sense. The Confrontation
Clause is not designed, and does not serve, to detect errors
in scientific tests. That should instead be done by con­
ducting a new test. Or, if a new test is impossible, the
defendant may call his own expert to explain to the jury
the test’s flaws and the dangers of relying on it. And if, in
an extraordinary case, the particular analyst’s testimony
is necessary to the defense, then, of course, the defendant
may subpoena the analyst. The Court frets that the de­
fendant may be unable to do so “when the [analyst] is
unavailable or simply refuses to appear.” Ante, at 19. But
laboratory analysts are not difficult to locate or to compel.
As discussed below, analysts already devote considerable
time to appearing in court when subpoenaed to do so. See
Part I–C, infra; see also Brief for State of Alabama et al.
as Amici Curiae 26–28. Neither the Court, petitioner, nor
amici offer any reason to believe that defendants have
trouble subpoenaing analysts in cases where the analysts’
in-court testimony is necessary.
The facts of this case illustrate the formalistic and
pointless nature of the Court’s reading of the Clause.
Petitioner knew, well in advance of trial, that the Com­
monwealth would introduce the tests against him. The
bags of cocaine were in court, available for him to test, and
entered into evidence. Yet petitioner made no effort,
before or during trial, to mount a defense against the
analysts’ results. Petitioner could have challenged the
tests’ reliability by seeking discovery concerning the test­
ing methods used or the qualifications of the laboratory
analysts. See Mass. Rule Crim. Proc. 14(a)(2) (2009). He
did not do so. Petitioner could have sought to conduct his
own test. See Rule 41. Again, he did not seek a test;
indeed, he did not argue that the drug was not cocaine.
Rather than dispute the authenticity of the samples tested
or the accuracy of the tests performed, petitioner argued to
10 MELENDEZ-DIAZ v. MASSACHUSETTS

KENNEDY, J., dissenting

the jury that the prosecution had not shown that he had
possessed or dealt in the drugs.
Despite not having prepared a defense to the analysts’
results, petitioner’s counsel made what can only be de­
scribed as a pro forma objection to admitting the results
without in-court testimony, presumably from one particu­
lar analyst. Today the Court, by deciding that this objec­
tion should have been sustained, transforms the Confron­
tation Clause from a sensible procedural protection into a
distortion of the criminal justice system.
It is difficult to perceive how the Court’s holding will
advance the purposes of the Confrontation Clause. One
purpose of confrontation is to impress upon witnesses the
gravity of their conduct. See Coy v. Iowa, 487 U. S. 1012,
1019–1020 (1988). A witness, when brought to face the
person his or her words condemn, might refine, reformu­
late, reconsider, or even recant earlier statements. See
ibid. A further purpose is to alleviate the danger of one­
sided interrogations by adversarial government officials
who might distort a witness’s testimony. The Clause
guards against this danger by bringing the interrogation
into the more neutral and public forum of the courtroom.
See Maryland v. Craig, 497 U. S. 836, 869–870 (1990)
(SCALIA, J., dissenting) (discussing the “value of the con­
frontation right in guarding against a child’s distorted or
coerced recollections”); see also 96 Cal. L. Rev., supra, at
1120–1122 (“During private law-enforcement questioning,
police officers or prosecutors can exert pressure on the
witness without a high risk of being discovered. Court­
room questioning, in contrast, is public and performed in
front of the jury, judge and defendant. Pressure is there­
fore harder to exert in court”).
But neither purpose is served by the rule the Court
announces today. It is not plausible that a laboratory
analyst will retract his or her prior conclusion upon catch­
ing sight of the defendant the result condemns. After all,
 Cite as: 557 U. S. ____ (2009) 11

KENNEDY, J., dissenting

the analyst is far removed from the particular defendant
and, indeed, claims no personal knowledge of the defen­
dant’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 analy­
sis; if it does not call an expert to interpret a test, particu­
larly if that test is complex or little known; if it does not
establish the chain of custody and the reliability of the
laboratory; then the State will have failed to meet its
burden of proof. That result follows because the State
must prove its case beyond a reasonable doubt, without
relying on presumptions, unreliable hearsay, and the like.
See United States v. United States Gypsum Co., 438 U. S.
422, 446 (1978) (refusing to permit a “ ‘conclusive pre­
sumption [of intent],’ ” which “ ‘would effectively eliminate
intent as an ingredient of the offense’ ” (quoting Morissette
v. United States, 342 U. S. 246, 274–275 (1952)). The
State must permit the defendant to challenge the analyst’s
result. See Holmes v. South Carolina, 547 U. S. 319, 331
(2006) (affirming the defendant’s right to “have a mean­
ingful opportunity to present a complete defense” (internal
quotation marks omitted)). The rules of evidence, includ­
ing those governing reliability under hearsay principles
and the latitude to be given expert witnesses; the rules
against irrebutable presumptions; and the overriding
principle that the prosecution must make its case beyond
a reasonable doubt—all these are part of the protections
for the accused. The States, however, have some latitude
in determining how these rules should be defined.
The Confrontation Clause addresses who must testify.
It simply does not follow, however, that this clause, in lieu
of the other rules set forth above, controls who the prose­
cution must call on every issue. Suppose, for instance,
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KENNEDY, J., dissenting

that the defense challenges the procedures for a secure
chain of custody for evidence sent to a lab and then re­
turned to the police. The defense has the right to call its
own witnesses to show that the chain of custody is not
secure. But that does not mean it can demand that, in the
prosecution’s case in chief, each person who is in the chain
of custody—and who had an undoubted opportunity to
taint or tamper with the evidence—must be called by the
prosecution under the Confrontation Clause. And the
same is true with lab technicians.
The Confrontation Clause is simply not needed for these
matters. Where, as here, the defendant does not even
dispute the accuracy of the analyst’s work, confrontation
adds nothing.
C
For the sake of these negligible benefits, the Court
threatens to disrupt forensic investigations across the
country and to put prosecutions nationwide at risk of
dismissal based on erratic, all-too-frequent instances when
a particular laboratory technician, now invested by the
Court’s new constitutional designation as the analyst,
simply does not or cannot appear.
Consider first the costs today’s decision imposes on
criminal trials. Our own Court enjoys weeks, often
months, of notice before cases are argued. We receive
briefs well in advance. The argument itself is ordered. A
busy trial court, by contrast, must consider not only attor­
neys’ schedules but also those of witnesses and juries.
Trial courts have huge caseloads to be processed within
strict time limits. Some cases may unexpectedly plead out
at the last minute; others, just as unexpectedly, may not.
Some juries stay out longer than predicted; others must be
reconstituted. An analyst cannot hope to be the trial
court’s top priority in scheduling. The analyst must in­
stead face the prospect of waiting for days in a hallway
 Cite as: 557 U. S. ____ (2009) 13

KENNEDY, J., dissenting

outside the courtroom before being called to offer testi­
mony 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 al­
ready spent considerable time appearing as witnesses in
those few cases where the defendant, unlike petitioner in
this case, contested the analyst’s result and subpoenaed
the analyst. See Brief for Alabama et al. as Amici Curiae
26–28 (testifying takes time); ante, at 23 (before today’s
opinion, it was “ ‘almost always the case that analysts’
certificates [we]re admitted without objection’ ” in Massa­
chusetts courts). By requiring analysts also to appear in
the far greater number of cases where defendants do not
dispute the analyst’s result, the Court imposes enormous
costs on the administration of justice.
Setting aside, for a moment, all the other crimes for
which scientific evidence is required, consider the costs the
Court’s ruling will impose on state drug prosecutions
alone. In 2004, the most recent year for which data are
available, drug possession and trafficking resulted in
362,850 felony convictions in state courts across the coun­
try. See Dept. of Justice, Bureau of Justice Statistics, M.
Durose & P. Langan, Felony Sentences in State Courts
2004, p. 2 (July 2007). Roughly 95% of those convictions
were products of plea bargains, see id., at 1, which means
that state courts saw more than 18,000 drug trials in a
single year.
The analysts responsible for testing the drugs at issue
in those cases now bear a crushing burden. For example,
the district attorney in Philadelphia prosecuted 25,000
drug crimes in 2007. Brief for National Dist. Attorneys
Association et al. as Amici Curiae 12–13. Assuming that
number remains the same, and assuming that 95% of the
cases end in a plea bargain, each of the city’s 18 drug
analysts, ibid., will be required to testify in more than 69
trials next year. Cleveland’s district attorney prosecuted
14 MELENDEZ-DIAZ v. MASSACHUSETTS

KENNEDY, J., dissenting

14,000 drug crimes in 2007. Ibid. Assuming that number
holds, and that 95% of the cases end in a plea bargain,
each of the city’s 6 drug analysts (two of whom work only
part time) must testify in 117 drug cases next year. Id., at
13.
The Federal Government may face even graver difficul­
ties than the States because its operations are so wide­
spread. For example, the FBI laboratory at Quantico,
Virginia, supports federal, state, and local investigations
across the country. Its 500 employees conduct over one
million scientific tests each year. Dept. of Justice, FBI
Laboratory 2007, Message from the FBI Laboratory Direc­
tor, http://www.fbi.gov/hq/lab/lab2007/labannual07.pdf (as
visited June 22, 2009, and available in Clerk of Court’s
case file). The Court’s decision means that before any of
those million tests reaches a jury, at least one of the labo­
ratory’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 Confronta­
tion Clause at a dear price, a price not measured in tax­
payer dollars alone. Guilty defendants will go free, on the
most technical grounds, as a direct result of today’s deci­
sion, adding nothing to the truth-finding process. The
analyst will not always make it to the courthouse in time.
He or she may be ill; may be out of the country; may be
unable to travel because of inclement weather; or may at
that very moment be waiting outside some other court­
room for another defendant to exercise the right the Court
invents today. If for any reason the analyst cannot make
it to the courthouse in time, then, the Court holds, the jury
cannot learn of the analyst’s findings (unless, by some
unlikely turn of events, the defendant previously cross­
examined the analyst). Ante, at 3. The result, in many
cases, will be that the prosecution cannot meet its burden
of proof, and the guilty defendant goes free on a technical­
 Cite as: 557 U. S. ____ (2009) 15

KENNEDY, J., dissenting

ity that, because it results in an acquittal, cannot be re­
viewed on appeal.
The Court’s holding is a windfall to defendants, one that
is unjustified by any demonstrated deficiency in trials, any
well-understood historical requirement, or any established
constitutional precedent.
II
All of the problems with today’s decision—the imprecise
definition of “analyst,” the lack of any perceptible benefit,
the heavy societal costs—would be of no moment if the
Constitution did, in fact, require the Court to rule as it
does today. But the Constitution does not.
The Court’s fundamental mistake is to read the Con­
frontation Clause as referring to a kind of out-of-court
statement—namely, a testimonial statement—that must
be excluded from evidence. The Clause does not refer to
kinds of statements. Nor does the Clause contain the
word “testimonial.” The text, instead, refers to kinds of
persons, namely, to “witnesses against” the defendant.
Laboratory analysts are not “witnesses against” the de­
fendant as those words would have been understood at the
framing. There is simply no authority for this proposition.
Instead, the Clause refers to a conventional “witness”—
meaning one who witnesses (that is, perceives) an event
that gives him or her personal knowledge of some aspect of
the defendant’s guilt. Both Crawford and Davis concerned
just this kind of ordinary witness—and nothing in the
Confrontation Clause’s text, history, or precedent justifies
the Court’s decision to expand those cases.
A
The Clause states: “In all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the
witnesses against him.” U. S. Const., Amdt. 6. Though
there is “virtually no evidence of what the drafters of the
Confrontation Clause intended it to mean,” White v. Illi
16 MELENDEZ-DIAZ v. MASSACHUSETTS

KENNEDY, J., dissenting

nois, 502 U. S. 346, 359 (1992) (THOMAS, J., concurring in
part and concurring in judgment), it is certain the Fram­
ers did not contemplate that an analyst who conducts a
scientific test far removed from the crime would be consid­
ered 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 ex­
tend to unconventional witnesses. As discussed below,
there is significant evidence to the contrary. See Part II–
B, infra. In these circumstances, the historical evidence in
support of the Court’s position is “ ‘too meager . . . to form
a solid basis in history, preceding and contemporaneous
with the framing of the Constitution.’ ” Boumediene v.
Bush, 553 U. S. ___, ___ (2008) (slip op., at 22) (quoting
Reid v. Covert, 354 U. S. 1, 64 (1957) (Frankfurter, J.,
concurring in result)). The Court goes dangerously wrong
when it bases its constitutional interpretation upon his­
torical guesswork.
The infamous treason trial of Sir Walter Raleigh pro­
vides 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 (Ra­
leigh’s trial informs our understanding of the Clause
because it was, at the time of the framing, one of the “most
notorious instances” of the abuse of witnesses’ out-of-court
statements); ante, at 9 (same). Raleigh’s accusers claimed
to have heard Raleigh speak treason, so they were wit­
nesses 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 labora­
tory analysts, but analysts differ from ordinary witnesses
in at least three significant ways. First, a conventional
witness recalls events observed in the past, while an
 Cite as: 557 U. S. ____ (2009) 17

KENNEDY, J., dissenting

analyst’s report contains near-contemporaneous observa­
tions of the test. An observation recorded at the time it is
made is unlike the usual act of testifying. A typical wit­
ness must recall a previous event that he or she perceived
just once, and thus may have misperceived or misremem­
bered. But an analyst making a contemporaneous obser­
vation need not rely on memory; he or she instead reports
the observations at the time they are made. We gave this
consideration substantial weight in Davis. There, the
“primary purpose” of the victim’s 911 call was “to enable
police assistance to meet an ongoing emergency,” rather
than “to establish or prove past events potentially relevant
to later criminal prosecution.” 547 U. S., at 822, 827. See
also People v. Geier, 41 Cal. 4th 555, 605–609, 161 P. 3d
104, 139–141 (2007). The Court cites no authority for its
holding that an observation recorded at the time it is
made is an act of “witness[ing]” for purposes of the Con­
frontation 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 protocols; they are not dependent upon or con­
trolled by interrogation of any sort. Put differently, out-of­
court statements should only “require confrontation if they
are produced by, or with the involvement of, adversarial
government officials responsible for investigating and
prosecuting crime.” 96 Cal. L. Rev., at 1118. There is no
indication that the analysts here—who work for the State
Laboratory Institute, a division of the Massachusetts
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KENNEDY, J., dissenting

Department of Public Health—were adversarial to peti­
tioner. Nor is there any evidence that adversarial officials
played a role in formulating the analysts’ certificates.
Rather than acknowledge that it expands the Confron­
tation Clause beyond conventional witnesses, the Court
relies on our recent opinions in Crawford and Davis. Ante,
at 3–5. The Court assumes, with little analysis, that
Crawford and Davis extended the Clause to any person
who makes a “testimonial” statement. But the Court’s
confident tone cannot disguise the thinness of these two
reeds. Neither Crawford nor Davis considered whether
the Clause extends to persons far removed from the crime
who have no connection to the defendant. Instead, those
cases concerned conventional witnesses. Davis, supra, at
826–830 (witnesses were victims of defendants’ assaults);
Crawford, supra, at 38 (witness saw defendant stab
victim).
It is true that Crawford and Davis employed the term
“testimonial,” and thereby suggested that any testimonial
statement, by any person, no matter how distant from the
defendant and the crime, is subject to the Confrontation
Clause. But that suggestion was not part of the holding of
Crawford or Davis. Those opinions used the adjective
“testimonial” to avoid the awkward phrasing required by
reusing the noun “witness.” The Court today transforms
that turn of phrase into a new and sweeping legal rule, by
holding that anyone who makes a formal statement for the
purpose of later prosecution—no matter how removed
from the crime—must be considered a “witness against”
the defendant. Ante, at 3–5. The Court cites no authority
to justify this expansive new interpretation.
B
No historical evidence supports the Court’s conclusion
that the Confrontation Clause was understood to extend
beyond conventional witnesses to include analysts who
 Cite as: 557 U. S. ____ (2009) 19

KENNEDY, J., dissenting

conduct scientific tests far removed from the crime and the
defendant. Indeed, what little evidence there is contra­
dicts 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 prosecu­
tion as the forensic analyst’s. To convict a man of bigamy,
for example, the State often requires his marriage records.
See, e.g., Williams v. State, 54 Ala. 131, 134, 135 (1875);
State v. Potter, 52 Vt. 33, 38 (1879). But if the original
records cannot be taken from the archive, the prosecution
must rely on copies of those records, made for the purpose
of introducing the copies into evidence at trial. See ibid.
In that case, the copyist’s honesty and diligence are just as
important as the analyst’s here. If the copyist falsifies a
copy, or even misspells a name or transposes a date, those
flaws could lead the jury to convict. Because so much
depends on his or her honesty and diligence, the copyist
often prepares an affidavit certifying that the copy is true
and accurate.
Such a certificate is beyond question a testimonial
statement under the Court’s definition: It is a formal out­
of-court statement offered for the truth of two matters (the
copyist’s honesty and the copy’s accuracy), and it is pre­
pared for a criminal prosecution.
During the Framers’ era copyists’ affidavits were ac­
cepted 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 Com­
mittee’s Note on Fed. Rule Evid. 902(4), 28 U. S. C. App.,
p. 390 (“The common law . . . recognized the procedure of
authenticating copies of public records by certificate”); 5 J.
Wigmore, Evidence §§1677, 1678 (J. Chadbourn rev.
1974). And courts admitted copyists’ affidavits in criminal
as well as civil trials. See Williams, supra; Potter, supra.
This demonstrates that the framing generation, in con­
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KENNEDY, J., dissenting

trast to the Court today, did not consider the Confronta­
tion Clause to require in-court confrontation of unconven­
tional authors of testimonial statements.
The Court attempts to explain away this historical
exception to its rule by noting that a copyist’s authority is
“narrowly circumscribed.” Ante, at 16. But the Court does
not explain why that matters, nor, if it does matter, why
laboratory analysts’ authority should not also be deemed
“narrowly circumscribed” so that they, too, may be excused
from testifying. And drawing these fine distinctions can­
not be squared with the Court’s avowed allegiance to
formalism. Determining whether a witness’ authority is
“narrowly circumscribed” has nothing to do with Craw
ford’s testimonial framework. It instead appears much
closer to the pre-Crawford rule of Ohio v. Roberts, under
which a statement could be admitted without testimony if
it “bears adequate indicia of reliability.” 448 U. S., at 66
(internal quotation marks omitted).
In keeping with the traditional understanding of the
Confrontation Clause, this Court in Dowdell v. United
States, 221 U. S. 325 (1911), rejected a challenge to the
use of certificates, sworn out by a clerk of court, a trial
judge, and a court reporter, stating that defendants had
been present at trial. Those certificates, like a copyist’s
certificate, met every requirement of the Court’s current
definition of “testimonial.” In rejecting the defendants’
claim that use of the certificates violated the Confronta­
tion Clause, the Court in Dowdell explained that the
officials who executed the certificates “were not witnesses
against the accused” because they “were not asked to
testify to facts concerning [the defendants’] guilt or inno­
cence.” Id., at 330. Indeed, as recently as Davis, the
Court reaffirmed Dowdell. 547 U. S., at 825.
By insisting that every author of a testimonial state­
ment appear for confrontation, on pain of excluding the
statement from evidence, the Court does violence to the
 Cite as: 557 U. S. ____ (2009) 21

KENNEDY, J., dissenting

Framers’ sensible, and limited, conception of the right to
confront “witnesses against” the defendant.
C
In addition to lacking support in historical practice or in
this Court’s precedent, the Court’s decision is also con­
trary to authority extending over at least 90 years, 35
States, and six Federal Courts of Appeals.
Almost 100 years ago three state supreme courts held
that their state constitutions did not require analysts to
testify in court. In a case much like this one, the Massa­
chusetts Supreme Judicial Court upheld the admission of
a certificate stating that the liquid seized from the defen­
dant contained alcohol, even though the author of the
certificate did not testify. Commonwealth v. Slavski, 245
Mass. 405, 413, 140 N. E. 465, 467 (1923). The highest
courts in Connecticut and Virginia reached similar conclu­
sions under their own constitutions. State v. Torello, 103
Conn. 511, 131 A. 429 (1925); Bracey v. Commonwealth,
119 Va. 867, 89 S. E. 144 (1916). Just two state courts
appear to have read a state constitution to require a con­
trary result. State v. Clark, 290 Mont. 479, 484–489, 964
P. 2d 766, 770–772 (1998) (laboratory drug report requires
confrontation under Montana’s Constitution, which is
“[u]nlike its federal counterpart”); State v. Birchfield, 342
Ore. 624, 157 P. 3d 216 (2007), but see id., at 631–632, 157
P. 3d, at 220 (suggesting that a “typical notice require­
ment” would be lawful).
As for the Federal Constitution, before Crawford the
authority was stronger still: The Sixth Amendment does
not require analysts to testify in court. All Federal Courts
of Appeals to consider the issue agreed. Sherman v. Scott,
62 F. 3d 136, 139–142 (CA5 1995); Minner v. Kerby, 30
F. 3d 1311, 1313–1315 (CA10 1994); United States v.
Baker, 855 F. 2d 1353, 1359–1360 (CA8 1988); Reardon v.
Manson, 806 F. 2d 39 (CA2 1986); Kay v. United States,
22 MELENDEZ-DIAZ v. MASSACHUSETTS

KENNEDY, J., dissenting

255 F. 2d 476, 480–481 (CA4 1958); see also Manocchio v.
Moran, 919 F. 2d 770, 777–782 (CA1 1990) (autopsy report
stating cause of victim’s death). Some 24 state courts, and
the Court of Appeals for the Armed Forces, were in accord.
See Appendix A, infra. (Some cases cited in the appen­
dixes concern doctors, coroners, and calibrators rather
than laboratory analysts, but their reasoning is much the
same.) Eleven more state courts upheld burden-shifting
statutes that reduce, if not eliminate, the right to confron­
tation by requiring the defendant to take affirmative steps
prior to trial to summon the analyst. See ibid. Because
these burden-shifting statutes may be invalidated by the
Court’s reasoning, these 11 decisions, too, appear contrary
to today’s opinion. See Part III–B, infra. Most of the
remaining States, far from endorsing the Court’s view,
appear not to have addressed the question prior to Craw
ford. Against this weight of authority, the Court proffers
just two cases from intermediate state courts of appeals.
Ante, at 6–7.
On a practical level, today’s ruling would cause less
disruption if the States’ hearsay rules had already re­
quired analysts to testify. But few States require this. At
least sixteen state courts have held that their evidentiary
rules permit scientific test results, calibration certificates,
and the observations of medical personnel to enter evi­
dence without in-court testimony. See Appendix B, infra.
The Federal Courts of Appeals have reached the same
conclusion in applying the federal hearsay rule. United
States v. Garnett, 122 F. 3d 1016, 1018–1019 (CA11 1997)
(per curiam); United States v. Gilbert, 774 F. 2d 962, 965
(CA9 1985) (per curiam); United States v. Ware, 247 F. 2d
698, 699–700 (CA7 1957); but see United States v. Oates,
560 F. 2d 45, 82 (CA2 1977) (report prepared by law en­
forcement not admissible under public-records or busi­
ness-records exceptions to federal hearsay rule).
The modern trend in the state courts has been away
 Cite as: 557 U. S. ____ (2009) 23

KENNEDY, J., dissenting

from the Court’s rule and toward the admission of scien­
tific test results without testimony—perhaps because the
States have recognized the increasing reliability of scien­
tific testing. See Appendix B, infra (citing cases from
three States overruling or limiting previous precedents
that had adopted the Court’s rule as a matter of state
law). It appears that a mere six courts continue to inter­
pret their States’ hearsay laws to require analysts to
testify. See ibid. And, of course, where courts have
grounded their decisions in state law, rather than the
Constitution, the legislatures in those States have had,
until now, the power to abrogate the courts’ interpretation
if the costs were shown to outweigh the benefits. Today
the Court strips that authority from the States by carving
the minority view into the constitutional text.
State legislatures, and not the Members of this Court,
have the authority to shape the rules of evidence. The
Court therefore errs when it relies in such great measure
on the recent report of the National Academy of Sciences.
Ante, at 12–14 (discussing National Research Council of
the National Academies, Strengthening Forensic Science
in the United States: A Path Forward (Prepublication
Copy Feb. 2009)). That report is not directed to this
Court, but rather to the elected representatives in Con­
gress 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 Fed­
eral Courts of Appeals—that the Constitution does not
require analysts to testify in court before their analysis
may be introduced into evidence. The only authority on
which the Court can rely is its own speculation on the
meaning of the word “testimonial,” made in two recent
opinions that said nothing about scientific analysis or
24 MELENDEZ-DIAZ v. MASSACHUSETTS

KENNEDY, J., dissenting

scientific analysts.
III
In an attempt to show that the “sky will not fall after
today’s decision,” ante, at 20, the Court makes three ar­
guments, none of which withstands scrutiny.
A
In an unconvincing effort to play down the threat that
today’s new rule will disrupt or even end criminal 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 22. The Court bases this expecta­
tion on its understanding that defense attorneys surren­
der 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 prose­
cution has failed to prove an element of the crime—even
an element that is technical and rather obvious, such as
movement of a car in interstate commerce—then the case
must be dismissed. Until today one would not have
thought that judges should be angered at the defense for
making such motions, nor that counsel has some sort of
obligation to avoid being troublesome when the prosecu­
tion has not done all the law requires to prove its case.
Second, even if the Court were right to expect trial
judges to feel “antagonize[d]” by Melendez-Diaz objections
and to then vent their anger by punishing the lawyer in
 Cite as: 557 U. S. ____ (2009) 25

KENNEDY, J., dissenting

some way, there is no authority to support the Court’s
suggestion that a lawyer may shirk his or her professional
duties just to avoid judicial displeasure. There is good
reason why the Court cites no authority for this sugges­
tion—it is contrary to what some of us, at least, have long
understood to be defense counsel’s duty to be a zealous
advocate for every client. This Court has recognized the
bedrock principle that a competent criminal defense law­
yer must put the prosecution to its proof:
“[T]he adversarial process protected by the Sixth
Amendment requires that the accused have ‘counsel
acting in the role of an advocate.’ Anders v. Califor
nia, 386 U. S. 738, 743 (1967). The right to the effec­
tive assistance of counsel is thus the right of the ac­
cused to require the prosecution’s case to survive the
crucible of meaningful adversarial testing. When a
true adversarial criminal trial has been conducted . . .
the kind of testing envisioned by the Sixth Amend­
ment has occurred. But if the process loses its charac­
ter as a confrontation between adversaries, the consti­
tutional guarantee is violated.” United States v.
Cronic, 466 U. S. 648, 656–657 (1984) (footnotes
omitted).
See also ABA Model Code of Professional Responsibility,
Canon 7–1, in ABA Compendium of Professional Respon­
sibility Rules and Standards (2008) (“The duty of a lawyer,
both to his client and to the legal system, is to represent
his client zealously within the bounds of the law . . .”
(footnotes omitted)).
The instant case demonstrates how zealous defense
counsel will defend their clients. To convict, the prosecu­
tion must prove the substance is cocaine. Under the
Court’s new rule, apparently only an analyst’s testimony
suffices to prove that fact. (Of course there will also be a
large universe of other crimes, ranging from homicide to
26 MELENDEZ-DIAZ v. MASSACHUSETTS

KENNEDY, J., dissenting

robbery, where scientific evidence is necessary to prove an
element.) In cases where scientific evidence is necessary
to prove an element of the crime, the Court’s rule requires
the prosecution to call the person identified as the analyst;
this requirement has become a new prosecutorial duty
linked with proving the State’s case beyond a reasonable
doubt. Unless the Court is ashamed of its new rule, it is
inexplicable that the Court seeks to limit its damage by
hoping that defense counsel will be derelict in their duty
to insist that the prosecution prove its case. That is sim­
ply not the way the adversarial system works.
In any event, the Court’s hope is sure to prove un­
founded. The Court surmises that “[i]t is unlikely that
defense counsel will insist on live testimony whose effect
will be merely to highlight rather than cast doubt upon
the forensic analysis.” Ante, at 22. This optimistic predic­
tion misunderstands how criminal trials work. If the
defense does not plan to challenge the test result, “high­
light[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 wind­
fall: The analyst’s work cannot come into evidence. Given
the prospect of such a windfall (which may, in and of itself,
secure an acquittal) few zealous advocates will pledge,
prior to trial, not to raise a Melendez-Diaz objection.
Defense counsel will accept the risk that the jury may
hear the analyst’s live testimony, in exchange for the
chance that the analyst fails to appear and the govern­
ment’s case collapses. And if, as here, the defense is not
that the substance was harmless, but instead that the
accused did not possess it, the testimony of the technician
is a formalism that does not detract from the defense case.
In further support of its unlikely hope, the Court relies
on the Brief for Law Professors as Amici Curiae 7–8,
which reports that nearly 95% of convictions are obtained
 Cite as: 557 U. S. ____ (2009) 27

KENNEDY, J., dissenting

via guilty plea and thus do not require in-court testimony
from laboratory analysts. Ante, at 20. What the Court
does not consider is how its holding will alter these statis­
tics. 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 sen­
tence in exchange for relinquishing this remarkable
power.
B
As further reassurance that the “sky will not fall after
today’s decision,” ante, at 20, the Court notes that many
States have enacted burden-shifting statutes that require
the defendant to assert his Confrontation Clause right
prior to trial or else “forfeit” it “by silence.” Ibid. The
Court implies that by shifting the burden to the defendant
to take affirmative steps to produce the analyst, these
statutes reduce the burden on the prosecution.
The Court holds that these burden-shifting statutes are
valid because, in the Court’s view, they “shift no burden
whatever.” Ante, at 21. While this conclusion is welcome,
the premise appears flawed. Even what the Court calls
the “simplest form” of burden-shifting statutes do impose
requirements on the defendant, who must make a formal
demand, with proper service, well before trial. Some
statutes impose more requirements, for instance by re­
quiring 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 ana­
lyst. See generally Metzger, Cheating the Constitution, 59
Vand. L. Rev. 475, 481–485 (2006). In a future case, the
Court may find that some of these more onerous burden­
shifting statutes violate the Confrontation Clause because
they “impos[e] a burden . . . on the defendant to bring
. . . adverse witnesses into court.” Ante, at 19.
28 MELENDEZ-DIAZ v. MASSACHUSETTS

KENNEDY, J., dissenting

The burden-shifting statutes thus provide little reassur­
ance that this case will not impose a meaningless formal­
ism 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 20, and n. 11. The Court assures us that “there is no
evidence that the criminal justice system has ground to a
halt in the[se] States.” Ante, at 20.
On inspection, the citations prove far less reassuring
than promised. Seven were decided by courts that consid­
ered themselves bound by Crawford. These cases thus
offer no support for the Court’s assertion that the state
jurists independently “adopted” the Court’s interpretation
as a matter of state law. Quite the contrary, the debate in
those seven courts was over just how far this Court in­
tended Crawford to sweep. See, e.g., State v. Belvin, 986
So. 2d 516, 526 (Fla. 2008) (Wells, J., concurring in part
and dissenting in part) (“I believe that the majority has
extended the Crawford and Davis decisions beyond their
intended reach” (citations omitted)). The Court should
correct these courts’ overbroad reading of Crawford, not
endorse it. Were the Court to do so, these seven jurisdic­
tions 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 sub­
ject to the widespread, adverse results of the formalism
the Court mandates today.
The citations also fail to reassure for a different reason.
Five of the Court’s 10 citations—including all 3 pre-
Crawford cases—come from States that have reduced the
confrontation right. Four States have enacted a burden­
 Cite as: 557 U. S. ____ (2009) 29

KENNEDY, J., dissenting

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

KENNEDY, J., dissenting
Appendix A to opinion of KENNEDY, J.

APPENDIXES
A
The following authorities held, prior to Crawford, that
the Confrontation Clause does not require confrontation of
the analyst who conducted a routine scientific test: United
States v. Vietor, 10 M. J. 69, 72 (Ct. Mil. App. 1980) (labo­
ratory drug report); State v. Cosgrove, 181 Conn. 562, 574–
578, 436 A. 2d 33, 40–41 (1980) (same); Howard v. United
States, 473 A. 2d 835, 838–839 (D. C. 1984) (same); Baber
v. State, 775 So. 2d 258 (Fla. 2000) (blood-alcohol test);
Commonwealth v. Harvard, 356 Mass. 452, 253 N. E. 2d
346 (1969) (laboratory drug report); DeRosa v. First Judi
cial 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, 872–874
(R. I. 1991) (laboratory analysis of victim’s bodily fluid);
State v. Hutto, 325 S. C. 221, 228–230, 481 S. E. 2d 432,
436 (1997) (fingerprint); State v. Best, 146 Ariz. 1, 3–4, 703
P. 2d 548, 550–551 (App. 1985) (same); State v. Christian,
119 N. M. 776, 895 P. 2d 676 (App. 1995) (blood-alcohol
test); State v. Sosa, 59 Wash. App. 678, 684–687, 800 P. 2d
839, 843–844 (1990) (laboratory drug report).
The following authorities held, prior to Crawford, that
the Confrontation Clause does not require confrontation of
the results of autopsy and hospital reports describing the
victim’s injuries: People v. Clark, 3 Cal. 4th 41, 157–159,
833 P. 2d 561, 627–628 (1992) (autopsy report); Henson v.
State, 332 A. 2d 773, 774–776 (Del. 1975) (treating physi­
cian’s report of victim’s injuries, with medical conclusions
redacted); Collins v. State, 267 Ind. 233, 235–236, 369
 Cite as: 557 U. S. ____ (2009) 31

KENNEDY, J., dissenting
Appendix A to opinion of KENNEDY, J.

N. E. 2d 422, 423 (1977) (autopsy report); State v.
Wilburn, 196 La. 113, 115–118, 198 So. 765, 765–766
(1940) (hospital record stating victim’s cause of death)
(citing State v. Parker, 7 La. Ann. 83 (1852) (coroner’s
written inquest stating cause of death)); State v. Garlick,
313 Md. 209, 223–225, 545 A. 2d 27, 34 (1988) (blood test
showing presence of illegal drug); People v. Kirtdoll, 391
Mich. 370, 385–391, 217 N. W. 2d 37, 46–48 (1974) (treat­
ing 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 defen­
dant’s injuries); State v. Kreck, 86 Wash. 2d 112, 117–120,
542 P. 2d 782, 786–787 (1975) (laboratory report stating
that murder victim’s blood contained poison).
The following authorities held, prior to Crawford, that
the Confrontation Clause does not require confrontation of
certificates stating that instruments were in good working
order at the time of a test: State v. Ing, 53 Haw. 466, 467–
473, 497 P. 2d 575, 577–579 (1972) (certificate that police
car’s speedometer was in working order), accord, State v.
Ofa, 9 Haw. App. 130, 135–139, 828 P. 2d 813, 817–818
(1992) (per curiam) (certificate that breathalyzer was in
working order); State v. Ruiz, 120 N. M. 534, 903 P. 2d 845
(App. 1995) (same); State v. Dilliner, 212 W. Va. 135, 141–
142, 569 S. E. 2d 211, 217–218 (2002) (same); State v.
Huggins, 659 P. 2d 613, 616–617 (Alaska App. 1982)
(same); State v. Conway, 70 Ore. App. 721, 690 P. 2d 1128
(1984) (same).
The following decisions reduced the right to confront the
results of scientific tests by upholding burden-shifting
statutes that require the defendant to take affirmative
steps prior to trial to summon the analyst: Johnson v.
State, 303 Ark. 12, 18–20, 792 S. W. 2d 863, 866–867
(1990) (defendant must give notice 10 days before trial);
State v. Davison, 245 N. W. 2d 321 (Iowa 1976), Iowa Code
Ann. §691.2 (2008) (same); State v. Crow, 266 Kan. 690,
32 MELENDEZ-DIAZ v. MASSACHUSETTS

KENNEDY, J., dissenting
Appendix B to opinion of KENNEDY, J.

974 P. 2d 100 (1999) (defendant must give notice within 10
days of receiving the result and must show that the result
will be challenged at trial); State v. Christianson, 404
A. 2d 999 (Me. 1979) (defendant must give notice 10 days
before trial); State v. Miller, 170 N. J. 417, 436–437, 790
A. 2d 144, 156 (2002) (defendant must give notice within
10 days of receiving the result and must show that the
result will be challenged at trial); State v. Smith, 312 N. C.
361, 381–382, 323 S. E. 2d 316, 328 (1984) (defendant
must subpoena analyst); State v. Hancock, 317 Ore. 5, 9–
12, 854 P. 2d 926, 928–930 (1993) (same), but see State v.
Birchfield, 342 Ore. 624, 157 P. 3d 216 (reducing defen­
dant’s burden); State v. Hughes, 713 S. W. 2d 58 (1986)
(defendant must subpoena analyst); Magruder v. Com
monwealth, 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
admitted into evidence without confrontation: State v.
Torres, 60 Haw. 271, 589 P. 2d 83 (1978) (X ray of victim’s
body); State v. Davis, 269 N. W. 2d 434, 440 (Iowa 1978)
(laboratory analysis of victim’s bodily fluid); State v. Tay
lor, 486 S. W. 2d 239, 241–243 (Mo. 1972) (microscopic
comparison of wood chip retrieved from defendant’s cloth­
ing 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,
 Cite as: 557 U. S. ____ (2009) 33

KENNEDY, J., dissenting
Appendix B to opinion of KENNEDY, J.

175 S. E. 2d 260, 262–264 (1970) (laboratory analysis of
victim’s bodily fluid); Kreck, 86 Wash. 2d, 117–120, 542
P. 2d, 786–787 (laboratory report stating that murder
victim’s blood contained poison).
The following authorities hold that State Rules of 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, 196 La., at
115–118, 198 So., at 765–766 (hospital record stating
victim’s cause of death); Garlick, 313 Md., at 223–225, 545
A. 2d, at 34 (blood test); State v. Reddick, 53 N. J. 66, 68–
69, 248 A. 2d 425, 426–427 (1968) (per curiam) (autopsy
report stating factual findings, but not opinions, of medical
examiner); People v. Nisonoff, 293 N. Y. 597, 59 N. E. 2d
420 (1944) (same).
The following authorities hold that State Rules of Evi­
dence permit certificates, which state that scientific in­
struments were in good working order, to be admitted into
evidence without confrontation: Wester v. State, 528 P. 2d
1179, 1183 (Alaska 1974) (certificate stating that breatha­
lyzer machine was in working order); Best v. State, 328
A. 2d 141, 143 (Del. 1974) (certificate that breathalyzer
was in working order); State v. Rines, 269 A. 2d 9, 13–15
(Me. 1970) (manufacturer’s certificate stating that blood­
alcohol test kit was in working order admissible under the
business-records exception); McIlwain v. State, 700 So. 2d
586, 590–591 (Miss. 1997) (same).
Taking the minority view, the following authorities
interpret state hearsay rules to require confrontation of
the results of routine scientific tests or observations of
medical personnel: State v. Sandoval-Tena, 138 Idaho 908,
912, 71 P. 3d 1055, 1059 (2003) (laboratory drug report
inadmissible under state hearsay rule); Spears v. State,
241 So. 2d 148 (Miss. 1970) (nurse’s observation of victim
34 MELENDEZ-DIAZ v. MASSACHUSETTS

KENNEDY, J., dissenting
Appendix B to opinion of KENNEDY, J.

inadmissible under state hearsay rule and constitution);
State v. James, 255 S. C. 365, 179 S. E. 2d 41 (1971)
(chemical analysis of victim’s bodily fluid inadmissible
under state hearsay rule); Cole v. State, 839 S. W. 2d 798
(Tex. Ct. Crim. App. 1990) (laboratory drug report inad­
missible under state hearsay rule); State v. Workman,
2005 UT 66, ¶¶9–20, 122 P. 3d 639, 642–643 (same); State
v. Williams, 2002 WI 58, ¶¶32–55, 253 Wis. 2d 99, 118–
127, 644 N. W. 2d 919, 928–932 (same), but see id., at
109–117, 644 N. W. 2d, at 924–927 (no confrontation
violation where expert testified based on test results
prepared by an out-of-court analyst).
This summary does not include decisions that find test
results inadmissible because the State failed to lay a
proper foundation. Rather than endorse the minority
view, those cases merely reaffirm the government’s burden
to prove the authenticity of its evidence and the applicabil­
ity of an exception to the state hearsay rule. See, e.g.,
State v. Fisher, 178 N. W. 2d 380 (Iowa 1970) (laboratory
test of victim’s bodily fluid inadmissible under 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 foundational evidence
that the test was conducted in a reliable manner); cf.
Davis, 269 N.W. 2d, at 440 (laboratory test of victim’s
bodily fluid admitted under business-records exception to
state hearsay rule); Garlick, 313 Md., at 215, n. 2, 223–
225, 545 A. 2d, at 30, n. 2, 34 (laboratory test of defen­
dant’s blood falls within “firmly rooted” hearsay excep­
tion).
Three States once espoused the minority view but ap­
 Cite as: 557 U. S. ____ (2009) 35

KENNEDY, J., dissenting
Appendix B to opinion of KENNEDY, J.

pear to have changed course to some degree: People v.
Lewis, 294 Mich. 684, 293 N. W. 907 (1940) (hospital
record describing victim’s injuries inadmissible hearsay),
overruled by Kirtdoll, 391 Mich., at 372, 217 N. W. 2d, at
39 (noting that “in its 35 year long history, Lewis . . . has
never been relied upon to actually deny admission into
evidence of a business entry record in a criminal case”),
but see People v. McDaniel, 469 Mich. 409, 670 N. W. 2d
659 (2003) (per curiam) (police laboratory report inadmis­
sible 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
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,
defendant waived his right to confront the analyst).