dissenting.
I respectfully disagree with the majority's presumption that defense counsel's misunderstanding of section 16-8-3809(5), C.R.S. *439(2010), and consequent failure to comply with its requirements, constituted a valid waiver of Cropper's fundamental right to confrontation. Accordingly, because Cropper did not waive his right to confrontation, I conclude that section 16-3-809(5) was not applied constitutionally in the instant case.
Generally, the U.S. Supreme Court has refused to presume waiver of a fundamental constitutional right from a defendant's inaction. In Johnson v. Zerbst, the Court defined the waiver of a fundamental constitutional right as "an intentional relinquishment or abandonment of a known right or privilege." 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). In Carniley v. Cochran, the Court further explained that
[tlhe record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.
369 U.S. 506, 516, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). Due to these requirements for a valid waiver, the Court has steadfastly refused to presume the waiver of a defendant's constitutional rights from inaction alone. See e.g.,. Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ("[A] valid waiver will not be presumed simply from the silence of the accused after [Miranda ] warnings are given or simply from the fact that a confession was in fact eventually obtained."); Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) (requiring an "affirmative showing" in the record that a guilty plea was knowing and voluntary). Thus, in Barker v. Wingo, the Court held that "presuming waiver of a fundamental right from inaction [] is inconsistent with this Court's pronouncements on waiver of constitutional rights." 407 U.S. 514, 525, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).
The Court has, however, required affirmative conduct on the part of the defendant to exercise certain constitutional rights. For example, in Taylor v. Illinois, the Court explained that the defendant must take affirmative steps to activate the right to compel the presence and present the testimony of witnesses. 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988).
[The right to compel the presence and present the testimony of witnesses provides the defendant with a sword that may be employed to rebut the prosecution's case. The decision whether to employ it in a particular case rests solely with the defendant. The very nature of the right requires that its effective use be preceded by deliberate planning and affirmative conduct.
Id. at 410, 108 S.Ct. 646. Accordingly, because the defendant in Taylor had failed to comply with a discovery rule requiring pretrial disclosure of defense witnesses, the Court concluded that the defendant had failed to exercise his right under the Compulsory Process Clause. Id. The Court thus approved of the trial court's sanction precluding the defendant's witness from testifying at trial. Id. at 418, 108 S.Ct. 646.
In Melendez-Diaz v. Massachusetts, the Court relied on the reasoning in Taylor to support its position that a defendant must exercise the right to confrontation. -- U.S. --, 129 S.Ct. 2527, 2541, 174 L.Ed.2d 314 (2009). The Court emphasized that "[the defendant always has the burden of raising his Confrontation Clause objection|.]" Id. {emphasis in original). The Court then suggested that certain notice-and-demand statutes are constitutional because they "simply govern the time within which" the defendant must raise his right to confront a witness. Id. (emphasis in original). Crucial to the Court's reasoning was the fact that simple notice-and-demand statutes, unlike the variety of statutes receiving the notice-and-demand label,10 require the prosecution to provide the defendant with actual notice.
In their simplest form, notice-and-demand statutes require the prosecution to provide motice to the defendant of its intent to use *440an analyst's report as evidence at trial, after which the defendant is given a period of time in which he may object to the admission of the evidence absent the analyst's appearance live at trial.
Id. (emphasis added). This actual notice requirement, the Court explained, the defendant to assert (or forfeit by silence) his Confrontation Clause right after receiving notice of the prosecution's intent to use a forensic analyst's report." Id. Thus, because the defendant receives actual notice of the requirement to object pre-trial and request the right to confront a witness, the Court suggested that simple notice-and-demand statutes are no different from requiring the defendant to raise a Confrontation Clause objection. In this light, the Court reasoned that simple notice-and-demand statutes "shift no burden whatever." Id.
The majority, however, fails to address the key distinction between the simple notice- and-demand statutes discussed favorably in Melendez-Diaz and Colorado's notice-and-demand statute found at section 16-3-309(5). Maj. op. at 437. To be clear, section 16-3-309(5) is not a simple notice-and-demand statute of the type approved in Melendez, Diaz. The fundamental problem is that seetion 16-8-8309(5) eliminates the requirement on the prosecution to notify the defendant pretrial of its intent to admit a lab report without live testimony from the analyst. As a result, the defendant must anticipate, prior to trial and possibly without actual notice, whether to exercise the right to confront a witness. Statutes like section 16-8-809(5) are thus incompatible with the emphasis in Melendez-Diaz on the need for actual notice that "permit[s]" the defendant to exercise his right to confrontation pretrial.
In fact, Justice Kennedy, in his dissent in Melendez-Diaz, singled out Colorado's seetion 16-8-309(5) as potentially violating the Confrontation Clause. Kennedy criticized section 16-38-809(5) as "a burden-shifting statute requiring the defendant to give early notice of his intent to confront the analyst." Id. at 2558 (Kennedy, J. dissent). The Court responded to Kennedy's criticism by narrowly approving of simple notice-and-demand statutes that provide actual notice. Id. at 2541 (citing with approval Ga.Code Ann. § 35-3-154.1 (2006); Tex.Code Crim. Proc. Ann., Art. 38.41, § 4 (Vernon 2005); and Ohio Rev.Code Ann. § 2925.51(c) (West 2006)). Noticeably absent from the Court's list of approved statutes is section 16-3-309(5). Thus, by refusing to approve statutes that lack an actual notice requirement, the Court's reasoning in Melendes-Diaz actually casts doubt on the constitutionality of section 16-8-309(5) and other notice-and-demand statutes that fail to require the prose-ecution to provide actual notice to defense counsel.
The majority is further misplaced to the extent it implies that Melendes-Diaz approved of a presumption of waiver from a defendant's failure to follow the procedural requirements of section 16-8-309(5). My. op. at 487. In Hinojos-Mendoza v. People, this court stated that "we can infer from the failure to comply with procedural requirements that the attorney made a decision not to exercise the right at issue." 169 P.3d 662, 670 (Colo.2007). This presumption of waiver depended upon an underlying presumption-namely that an attorney knows the law and thus has notice of the applicable statutory requirements in section 16-3-8309(5). Id. at 670. It was this underlying presumption that allowed the court to treat the attorney's inaction in Hinojos-Mendoza as a decision to waive the right to confrontation. In the instant case, the majority relies on Hinojos-Mendoza for the presumption that defense counsel was aware of the requirements of section 16-3-809(5) and thus made an informed decision to waive Cropper's right to confrontation. Maj. op. at 438.
Melendez-Diaz did not, however, approve of the presumption of waiver articulated in FHinojos-Mendoza. In Melendes-Diaz, the Court cited Hinojos-Mendoza for its holding that crime lab reports are testimonial, 129 S.Ct. at 2540 n. 11. The Court again cited Finojos-Mendoza for the proposition that a defendant can be compelled to exercise his Confrontation Clause rights before trial. Id. at 2541. At no point, however, did the Court approve of Hinojos-Mendoza's presumption of waiver.
*441To the contrary, Melendes-Diag teaches that the presumption in Hinojos-Mendozo that an attorney knows the law is no substitute for actual notice of the prosecution's intent to introduce a lab report without live testimony. As noted above, Melendes-Diaz only approved of simple notice-and-demand statutes where the defendant has actual notice of the prosecution's intent to introduce a lab report without live testimony. By refusing to approve of other statutes that lack an actual notice requirement, the Court implied that the mere existence of a statute is an insufficient basis to presume that an attorney made an informed decision to forego the right to confrontation. Accordingly, to the extent Hingjos-Mendoza creates a presumption of waiver from inaction, that presumption is limited by Melendes-Diag to those circumstances where the prosecution provides the defendant with actual notice of its intent to introduce a lab report without live testimony of the analyst.11 That is, Hinojos-Mendoza teaches that a defendant's failure to exercise the right to confrontation amounts to a constitutionally sufficient communication of waiver only where the defendant has received actual notice of the prosecution's intent to submit a lab report without live testimony.
In the instant case though, the record demonstrates that the prosecution did not provide defense counsel with pre-trial notice of its intent to introduce the lab report without live testimony. Early in the discovery process, the prosecution provided defense counsel with a copy of the lab report analyzing the shoe-print. The prosecution also provided defense counsel with a witness endorsement list that included the shoe-print technician. Neither of these prosecutorial actions, however, notified defense counsel of the prosecution's intent to offer the lab report pursuant to section 16-8-809(5).12 Accordingly, defense counsel did not have actual notice that she needed to ask for the opportunity to cross-examine the technician and thus her failure to make that request was not a constitutionally sufficient communication of waiver.
In fact, the record demonstrates that defense counsel was unaware of the statutory requirements of section 16-3-809(5). When the prosecution moved to introduce the report without live testimony from the technician, defense counsel expressed surprise and stated that she had not been provided with notice that the technician would not appear at trial. Defense counsel further explained that she believed, albeit mistakenly, that seetion 16-3-809(5) did not apply to the report at issue. The record thus reflects that defense counsel was actually unaware of the requirements of section 16-8-809(5), thereby rebutting the majority's reliance on the underlying presumption in EHinojos-Mendora that defense counsel knows the applicable rules of procedure.
Nonetheless, even though defense counsel was unaware of section 16-8-309(5) and lacked notice of the prosecution's intent to introduce the lab report without live testimony, the majority still presumes waiver from defense counsel's failure to comply with see*442tion 16-3-309(5). The effect of the majority's conclusion is to create an irrebuttable presumption of waiver13 and thus hold seetion 16-3-309(5) constitutional in every application.14 Its strained logic, however, runs contrary to the facts in the record and the U.S. Supreme Court's steadfast refusal to presume waiver from inaction. See Barker, 407 U.S. at 525, 92 S.Ct. 2182; see also Miranda, 384 U.S. at 475-76, 86 S.Ct. 1602; Boykin, 395 U.S. at 238, 89 S.Ct. 1709.
Instead, based on the record and in accord with U.S. Supreme Court precedent, I conclude that defense counsel's inaction did not amount to a valid waiver of Cropper's right to confrontation. Cropper was, however, denied the right to confront the technician whose shoe-print report formed a crucial part of the prosecution's case identifying Cropper as a suspect at the seene of the burglary. Accordingly, I conclude that seetion 16-3-809(5) was applied unconstitutionally in the instant case.15 Hence, I respectfully dissent.
I am authorized to state that Chief Justice BENDER joins in this dissent.
. Commentators have identified at least four different types of statutes that receive the notice- and-demand label. See Jennifer B. Sokoler, Note, Between Substance and Procedure: A Role for States' Interests in the Scope of the Confrontation Clause, 110 Colum. L.Rev. 161, 182-86 (2010) (identifying simple notice-and-demand statutes, notice-and-demand "plus" statutes, anticipatory demand statutes, and defense subpoena statutes).
. In People v. Mojica-Simental, we expressed our concern that section 16-3-309(5) did not contain an actual notice requirement. 73 P.3d 15, 21 (Colo.2003). Accordingly, we urged the proponent of a lab report to notify opposing counsel that it intended to offer the lab report without live testimony of the author. Id. Melendez-Diaz confirms the fundamental importance of our emphasis in Mojica-Simental on actual notice. In a case where the defendant receives actual notice of the prosecution's intent to introduce a lab report without live testimony of the analyst, Melendez-Diaz would permit the court to presume waiver from the defendant's inaction.
. The majority believes that providing a defendant with a lab report through discovery is sufficient to put the defendant on notice of section 16-3-309(5). Maj. op. at 437-38. The disclosure of a lab report pursuant to Crim. P. 16 does not, however, provide a defendant with an indication of whether the prosecution will or will not call the expert who prepared the report. In other words, unlike simple notice-and-demand statutes, nothing in Crim. P. 16 requires the prosecution to identify those reports it intends to offer pursuant to section 16-3-309(5) versus those reports it intends to introduce with the live testimony of the analyst. Accordingly, providing defense counsel with lab reports through the discovery process is not equivalent to the actual notice required by the simple notice-and-demand statutes discussed favorably in Melendez-Diaz.
. See also Hinojos-Mendoza, 169 P.3d at 671-75 (Martinez, J., dissent) (criticizing the majority for creating an irrebuttable presumption that an attorney knows the law even when the record in the case reflects the attorney's actual ignorance).
. In Mojica-Simental, we unanimously held that section 16-3-309(5) was only facially constitutional because it could be applied constitutionally with a valid waiver. 73 P.3d at 20-21. The majority's decision, however, effectively reads out this requirement and, as a result, holds section 16-3-309(5) constitutional in every case, including those cases, like this one, where there is an invalid waiver.
. My conclusion that section 16-3-309(5) was applied unconstitutionally in this case is in accord with our analysis in Mojica-Simental, stating that
a defendant does not have actual notice of the requirements of the statute, or mistakenly fails to notify the prosecution to have the technician present to testify, there is a significant possibility that a defendant's failure to act may not constitute a voluntary waiver of his fundamental right to confrontation."
73 P.3d at 20-21.