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No. 07-591

 

In the Supreme Court of the United States

LUIS E. MELENDEZ-DIAZ, PETITIONER

v.

COMMONWEALTH OF MASSACHUSETTS

ON WRIT OF CERTIORARI TO THE
APPEALS COURT OF MASSACHUSETTS

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT

GREGORY G. GARRE
Acting Solicitor General
Counsel of Record
MATTHEW W. FRIEDRICH
Acting Assistant Attorney
General
MICHAEL R. DREEBEN
Deputy Solicitor General
LISA H. SCHERTLER
Assistant to the Solicitor
General
DAVID E. HOLLAR
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether a state laboratory's certificate indicating that items the police had submitted for chemical analysis contained cocaine constituted a testimonial statement within the meaning of the Confrontation Clause of the Sixth Amendment, under Crawford v. Washington, 541 U.S. 36 (2004).

In the Supreme Court of the United States

No. 07-591

LUIS E. MELENDEZ-DIAZ, PETITIONER

v.

COMMONWEALTH OF MASSACHUSETTS

ON WRIT OF CERTIORARI TO THE
APPEALS COURT OF MASSACHUSETTS

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

This case presents the question whether a certificate issued by a state laboratory indicating that certain sub- stances, submitted to the laboratory by the police for chemical analysis, had been determined to contain cocaine is a "testimonial" statement within the meaning of the Con frontation Clause of the Sixth Amendment, under Crawford v. Washington, 541 U.S. 36 (2004). Because that question has substantial implications for the conduct of federal crim inal trials involving scientific evidence, the United States has a significant interest in the Court's disposition of this case.

STATEMENT

1. On November 15, 2001, a loss prevention manager at a Boston K-Mart store reported to Detective Robert Pieroway that store employee Thomas Wright was act ing suspiciously. After Wright received afternoon tele phone calls, he would meet a blue car outside the store, depart briefly in the car, and then return to the store. 9/10/04 Tr. 26-30.

That afternoon, Pieroway parked in front of the store in an unmarked van. Pieroway observed Wright exit the store and enter the back seat of the blue car. Petitioner was in the front passenger seat and Ellis Montero was the driver. As the car moved slowly through the parking lot, Wright leaned forward between petitioner and Montero. Wright then exited the car and returned to the store. Pieroway approached Wright, searched him, and recovered four plastic bags of cocaine, each worth $80 to $100, from Wright's pants pocket. J.A. 20, 25-26; 9/10/04 Tr. 60-70, 73-74.

At Pieroway's instruction, two patrol officers stopped the blue car and arrested petitioner and Montero. Peti tioner, Montero, and Wright were handcuffed and trans ported to the police station in the back seat of one police car. Petitioner and Montero moved around and spoke in Spanish during the trip. After the three arrestees ex ited the car at the police station, an officer recovered 19 plastic bags of cocaine from the back-seat floor of the cruiser and $320 cash from the ground outside the cruis er. J.A. 36-38; 9/10/04 Tr. 72-73, 144-157, 163-166.

2. Petitioner and Montero were charged by indict ment with distributing cocaine and trafficking in 14 grams or more of cocaine. They were tried together before a jury. Pet. App. 1a.

a. A Massachusetts statute requires the state De partment of Public Health to chemically analyze sub stances submitted to it by the police if the analysis will be used for the enforcement of law. Mass. Gen. Laws ch. 111, § 12 (LexisNexis 2004). A separate statute requires the analyst, upon request, to "furnish a signed certifi cate, on oath, of the result of the analysis * * * to any police officer" and provides that the certificate "shall be prima facie evidence of the composition, quality, and the net weight" of the substance tested. Id. § 13.

b. At trial, Detective Pieroway testified that the bags of cocaine recovered from Wright and from the cruiser were analyzed at a state laboratory. Pieroway identified three exhibits as the certificates of analysis created by the laboratory in connection with those drug analyses. The prosecutor moved to admit the certifi cates. Petitioner's counsel objected, citing Crawford v. Washington, supra. The court admitted the notarized certificates over petitioner's objection. The certificates indicated that on November 28, 2001, the contents of the four bags recovered from Wright and the 19 bags recov ered from the police cruiser were analyzed at the state laboratory and were found to contain cocaine. The certificates reflected the net weight of the cocaine and bore signatures of the laboratory employees who conducted the tests. J.A. 27-31; Pet. App. 24a-29a.

c. Petitioner's defense at trial was that the govern ment failed to prove that a drug transfer occurred in the blue car and failed to prove who left the drugs inside the police cruiser. In closing argument, petitioner's counsel told the jury that the government's evidence of distribu tion consisted solely of a police officer's testimony "that he sees three people in the car, one guy gets in the car, he leans forward. That's it. He leans forward. Certain ly that doesn't tell you anything." J.A. 44. With respect to the drugs found in the police car, petitioner's counsel argued:

[T]he amount of drugs isn't in question. What is in question is who possessed those drugs. Who do you think possessed those drugs? * * * [A]sk yourself, is it Mr. Wright who has the drugs? Is it Mr. Melendez-Diaz who has the drugs? * * * [B]eing in the same room with someone who has drugs is not possessing those drugs.

J.A. 47-48. The jury returned guilty verdicts on all counts. Pet. App. 1a.

3. The Appeals Court of Massachusetts affirmed and the Supreme Judicial Court of Massachusetts denied review. Pet. App. 1a-10a, 11a. The Appeals Court re jected petitioner's argument that admission of the certif icates of analysis violated the Confrontation Clause as it was interpreted in Crawford. Id. at 8a n.3. The court relied (ibid.) on the decision of the Supreme Judicial Court of Massachusetts in Commonwealth v. Verde, 827 N.E.2d 701 (Mass. 2005).

In Verde, the court held that certificates of analysis "are well within the public records exception to the con frontation clause" and therefore are not "testimonial" evidence under Crawford. Pet. App. 18a. The court noted that certificates of analysis "merely state the re sults of a well-recognized scientific test determining the composition and quantity of the substance" and do not require the public officer analyzing the substance to exercise discretion or form an opinion. Id. at 17a. The court also noted that a certificate is admissible by stat ute "only as prima facie evidence of the composition, quality, and weight of the substance" and could be re butted by any defendant who "doubts its correctness." Id. at 17a-18a. The court further observed that the ad mission of a certificate of analysis does not implicate "the principal evil at which the Confrontation Clause was directed[,] . . . particularly its use of ex parte ex aminations as evidence against the accused." Id. at 18a (quoting Crawford, 541 U.S. at 50).

SUMMARY OF ARGUMENT

The certificates of analysis at issue in this case, which attested to the identity and weight of substances submitted to a state laboratory for examination, are not "testimonial" statements under the Confrontation Clause.

I. This Court's line of cases beginning with Crawford v. Washington, 541 U.S. 36 (2004), does not resolve the issue in this case, because those cases addressed witness statements analogous to the paradigmatic ex parte statements at which the Confrontation Clause was aimed. Scientific evidence generated by laboratory in struments did not exist at the time of the framing, how ever, and it raises significantly different issues.

II. The common law recognized that official records generated by public officers did not generally require in- person testimony and confrontation to be admissible. Those records, which reflected the observations of pub lic officers made in the course of their duties, were ad missible absent a showing of falsity or a personal inter est on the part of the public officer. While the official records exception, of course, cannot cover witness state ments produced in a police investigation, it does apply to certificates of analysis prepared by public officials charged with a responsibility to conduct chemical analy ses and report the results. Experience confirms that testing results may either exonerate or inculpate a de fendant. Certificates reporting those results may be re ceived in evidence as official records, subject to the de fendant's right to subpoena witnesses to impeach the results.

III. Even if the official records doctrine were held inapplicable, the certificates of analysis admitted in this case do not contain testimonial statements. The certifi cates consist of two components: (1) the results of chemi cal analysis of particular substances, as revealed by lab oratory instruments; and (2) the certification by a labo ratory employee of those instrument-generated results. Neither component is testimonial. Laboratory instru ments are not human beings and thus are not "wit nesses" within the meaning of the Confrontation Clause. And the instrument operators' certification of those in strument-generated results is akin to the sort of routine authentication of non-testimonial records that has long been exempt from cross-examination requirements. Just as the raw data produced by an instrument is non testimonial, the instrument operator's essentially verba tim report of that raw data is also not testimonial.

Sound reasons counsel against straining to treat rou tine chemical-analysis reports as though they were the modern-day fruits of a Marian examination. Defendants frequently have no interest in cross-examining a labora tory employee about a routine report (which reflects the indisputable output of a laboratory instrument). But defendants may secure a strategic advantage by forcing the government to call the witness on the chance that he cannot be located. Moreover, the exercise-particularly for prosecution offices with numerous cases relying on routine, instrument-generated laboratory results and the laboratories that must conduct the tests-consumes scarce criminal justice resources, with little or no coun tervailing benefit to the truthseeking process.

IV. Finally, even if the presentation of scientific test results through the certificates of analysis in this case were held impermissible, such a holding should not be understood to cast doubt on other procedures that foster efficiency while safeguarding any applicable cross-exam ination rights. These include the use of a testifying ex pert to provide opinion testimony concerning the results of scientific testing conducted by others and notice-and- demand statutes that afford an opportunity for cross- examination if the defendant makes a timely demand.

ARGUMENT

THE ADMISSION OF THE CERTIFICATES OF ANALYSIS AT ISSUE IN THIS CASE DID NOT VIOLATE THE CONFRONTA TION CLAUSE

The Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him." U.S. Const. Amend. VI. The certificates of analysis at issue here, which were prepar ed by a state laboratory performing scientific tests as required by law, do not fit within the category of "testi monial" statements covered by the Clause under Craw ford v. Washington, 541 U.S. 36 (2004). The decision below should therefore be affirmed.

I. Scientific Analysis Of Evidence By State Laboratories Rais es Issues Not Resolved By Crawford

In Crawford, this Court held that the Confrontation Clause prohibits the introduction of testimonial hearsay statements of an absent witness at a criminal trial unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. The Court did not provide a comprehensive definition of the term "testimonial statement" but it noted that it "applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." 541 U.S. at 68-69. In Davis v. Wash ington, 547 U.S. 813, 824 (2006), the Court made clear that testimonial hearsay "mark[s] out not merely [the] 'core[]' [of the Confrontation Clause,] but its perimeter."

Until now, the Court has applied the "testimonial statement" standard it announced in Crawford only to statements made to police officers by eyewitnesses to al leged criminal conduct.1 With the exception of the emer gency circumstances presented in Davis, which the Court held did not generate testimonial statements, the scenarios closely resembled the civil-law practice that was the "principal evil" that the Confrontation Clause was intended to curtail: the admission into evidence of the ex parte examination of a witness to criminal conduct conducted by a government investigator (formerly mag istrates, but now primarily police officers) without pro viding the accused person the opportunity to cross-ex amine the witness. See 541 U.S. at 50.

Unlike Crawford and Davis, this case does not in volve the admission of an out-of-court statement by a witness to criminal conduct or police questioning. The witnesses to petitioner's criminal conduct were the po lice officers who observed petitioner's encounter with Wright and the events surrounding the post-arrest transport of petitioner, Wright, and Montero. Those witnesses all testified at trial and were cross-examined. The Confrontation Clause issue here instead involves the results of scientific tests conducted on evidence col lected by the police in a criminal investigation.

Founding-era history does not provide a direct an swer to the question whether the result of a scientific test on evidence collected in a criminal investigation is testimonial hearsay covered by the Confrontation Clause because the Founders were not familiar with such evidence. Forensic science-"the application of the natural and physical sciences to the resolution of con flicts within a legal context," 4 David L. Faigman et al., Modern Scientific Evidence, § 29:2 (2007)-is, in all respects implicated here, a post-founding phenomenon. The 1752 English trial of Mary Blandy for the murder- by-poisoning of her father included testimony concern ing rudimentary observational tests a doctor performed to conclude that a powder that the defendant discarded was arsenic, and that case may be the first criminal trial to employ forensic evidence of that type. The Trial of Mary Blandy, 18 How. St. Tr. 1117, 1139-1140. But the foundational discoveries of modern forensic science, and thus the factual basis for the issue now before the Court, came much later.2 The drafters of the Confrontation Clause could not have anticipated that two centuries later, millions of DNA profiles would be contained in a national database, FBI, U.S. Dep't of Justice, Pub. No. 0357, FBI Laboratory 2005 Report 32 (2005 FBI Labo ratory Report) (visited Sept. 9, 2008) <http://www.fbi. gov/hq/lab/labannual05.pdf>, or that toxicologists would identify controlled substances using instruments capable of separating and identifying the substances' molecular components, see 2 Paul C. Giannelli & Edward J. Imwinkelried, Scientific Evidence 488-494, 525-533 (4th ed. 2007) (Scientific Evidence) (describing gas chroma tography and mass spectrometry techniques for drug identification).

Because Crawford dealt with evidence that was gen erated in ways that had "a striking resemblance to ex aminations of justices of the peace in England" under the Marian bail and committal statutes, see 541 U.S. at 52, the Court did not have to venture an opinion about how the Confrontation Clause should apply to the far different evidence that results from laboratory testing. The resolution of that issue should turn not on peti tioner's unpersuasive analogy of laboratory reports to witness affidavits, Pet. Br. 16-17, but rather on the tex tual, historical, and practical considerations relevant to evidence generated by laboratory employees utilizing scientific instruments.

II. The Certificates of Analysis In This Case Fit Within The Official Records Exception

The certificates of analysis admitted in this case rep resent official records generated and used as provided by law. As respondent explains (Massachusetts Br. 36- 45), the common law recognized official records as an exception to the requirements of in-person testimony and confrontation. The official records exception per mitted the admission of "official registers or records kept by persons in public office in which they [were] required, either by statute or by the nature of their of fice, to write down particular transactions occurring in the course of their public duties or under their personal observation." Evanston v. Gunn, 99 U.S. 660, 666 (1878) (citations omitted). The official records exception is rooted in a "presumption that public officers do their duty." 5 John Henry Wigmore, Evidence in Trials at Common Law § 1632, at 618 (James H. Chadbourn rev. ed. 1974) (Wigmore). "The fundamental circumstance is that an official duty exists to make an accurate state ment, and that this special and weighty duty will usually suffice as a motive to incite the officer to its fulfillment." Ibid. Accord Thomas Starkie, A Practical Treatise of the Law of Evidence 273 (Dowdeswell & Malcolm eds., 10th Am. ed. 1876).

The official records exception was applied at common law to admit records created pursuant to a public duty, including in criminal proceedings where those records proved a fact essential to the government's case. See The King v. Aickles, 168 Eng. Rep. 297, 297-298 (1785) (in proceeding to reinstate conviction and sentence based on violation of condition of pardon that prisoner remain exiled in America for seven years, and where it was "incumbent on the prosecutor to prove the precise day on which the prisoner was discharged," prison re cords admitted showing names of prisoners brought into the prison and time of their discharge). Official records could be excluded based on evidence that the records were falsified or that the public officer had a personal interest in the matter being recorded. Id. at 298 (noting that "[a]ny person may undoubtedly falsify the entries if they can; but unless the truth of the entry as to the present fact can be impeached, it is admissible evi dence"); 5 Wigmore § 1633, at 624 ("in a given case, cir cumstances may justify the exclusion of an official state ment where a strong motive to misrepresent appears to have existed"). But the foreseeable use of the record in litigation was not identified as an independent ground for exclusion. For instance, the exception at common law encompassed "inquisitions" conducted under ex press public authority relating to matters of public in terest, such as "post mortem" inquisitions to determine the heirs and estate of a deceased person. Id. § 1670, at 793. It is foreseeable that those reports would be perti nent to litigation, but they were "always received and highly valued." Ibid. The common law exception for official records also included "certificates" that were "given out by [the public official] to an applicant for the latter's use," so long as there was "express authority" to issue the certificate. Id. §§ 1636, 1674, at 646, 823. The particular use to which the "applicant" would put the certificate was not dispositive; the applicability of the exception instead focused on the authority granted to the public officer.

Of course, the public records exception cannot be used to admit hearsay witness statements gathered in a police investigation (as took place in Crawford itself). But the certificates of analysis admitted in this case do not reflect hearsay statements of ordinary witnesses who observed criminal activity. Rather, they conform to the common law exception for official records because state laboratory employees are public officers who have a statutory duty to record and report information gener ated from their own tests. See Mass. Gen. Laws ch. 111, § 12 (requiring chemical analysis of substances submit ted by the police if the analysis will be used for the en forcement of law); id. § 13 (requiring provision of signed certificate, under oath, of the analytical results). Those public officers have an official duty to conduct and re port their analyses accurately, and "[i]t [was] the influ ence of the official duty, broadly considered, which [was] taken as the sufficient element of trustworthiness" at common law. 5 Wigmore § 1632, at 618. The laboratory employees as a group have no personal interest in the outcome of the analyses that would disqualify their re ports as official records. As one indication, in 2007 a total of 2650 drug evidence exhibits analyzed by the Drug Enforcement Administration laboratory yielded results that showed either no drug at all or identified a drug that was not a controlled substance. In other words, the results were exculpatory. Accordingly, as the Verde court held, certificates of analysis "are well within the public [or official] records exception to the confron tation clause," Pet. App. 18a, subject, of course, to the defendant's right to subpoena witnesses to impeach their results.3

III. The Certificates Of Analysis In This Case Reflect The Output Of A Scientific Instrument, As Attested To By The Instrument's Operator, And Are Therefore Not Tes timonial

Even if the official records doctrine did not take the certificates of analysis in this case outside the coverage of the Confrontation Clause, the certificates at issue still do not contain "testimonial statements" under Crawford. The certificates state that the substances submitted by the police "[h]a[d] been examined" with the result that "[t]he substance[s] w[ere] found to contain" cocaine, with specified net weights. Pet. App. 24a-29a. The cer tificates thus embody (a) the results of chemical analysis by laboratory testing, and (b) the report on those results by laboratory employees. Neither of those categories of information, on this record, should be held to constitute a testimonial statement.

A. Laboratory Instruments Do Not Produce Testimonial Statements

1. In Crawford, the Court held that the term "wit nesses" in the Confrontation Clause refers to those who "bear testimony." 541 U.S. at 51 (quoting 2 Noah Web ster, An American Dictionary of the English Language 114 (1828) (Webster)). "Testimony," the Court ex plained, is typically "[a] solemn declaration or affirma tion made for the purpose of establishing or proving some fact." Ibid. (quoting Webster 91). The same dic tionary relied on by the Court in Crawford defines "sol emn" as "affecting with seriousness; impressing or adap ted to impress seriousness." Webster 75. Solemnity and seriousness are human traits. The "witnesses" to whom the Confrontation Clause refers, therefore, must be "human witnesses." United States v. Lamons, 532 F.3d 1251, 1263 (11th Cir. 2008). That conclusion is rein forced by Federal Rule of Evidence 801(a), which de fines a "statement" for hearsay purposes as an oral or written assertion or nonverbal conduct of a person if it is intended by the person as an assertion. See United States v. Washington, 498 F.3d 225, 230 & n.1 (4th Cir. 2007) (finding definition of "statement" in Rule 801(a) to be "uncontroversial" for Confrontation Clause purposes in light of reference in Sixth Amendment to "right to confront (human) 'witnesses'"), petition for cert. pend ing, No. 07-8291 (filed Dec. 14, 2007). Petitioner does not dispute that a "witness" for Confrontation Clause purposes is "a person who gives testimony." Pet. Br. 13 (emphasis added). And, of course, a machine is not a person.

2. The distinction between human witnesses, the sole concern of the Confrontation Clause, and laboratory instruments, which also can produce information intro duced as evidence in a criminal trial but which fall out side the textual scope of the Confrontation Clause, is critical to this case. Testing results that contain no hu man assertion are not "statements" at all, and therefore cannot be "testimonial statements" for Confrontation Clause purposes. See, e.g., Wimbish v. Commonwealth, 658 S.E.2d 715, 719-720 (Va. Ct. App. 2008) (breath-test result generated by a machine was not a statement made by a witness); State v. Weber, 19 P.3d 378, 381 (Or. Ct. App. 2001) (photo radar instruction setting forth speed of vehicle was not hearsay because it was generated by a machine and was not an assertion by a person); Stev enson v. State, 920 S.W.2d 342, 343 (Tex. Ct. App. 1996) (intoxilyzer printout was not hearsay because it was self- generated by the instrument, which is not a declarant).

A person's interpretation of ambiguous test results or his application of judgment to instrument-generated data raises different questions. But where the role of the person is limited to turning on the instrument, sup plying the material to be tested, and reading the result that the instrument has produced, the answer provided by the instrument contains no assertion by the human operator and is not a "statement." This is plainly true of machine-generated results such as a photograph taken by a red-light camera. It is equally true of more sophis ticated results, such as a chromatogram or mass spec trum generated by a gas chromatograph/mass spectrom eter instrument used for drug identification. See Lamo ns, 532 F.3d at 1263-1264 & n.23 (phone-bill data auto matically recorded onto data reel were not statements of persons; "certain statements involve so little interven tion by humans in their generation as to leave no doubt that they are wholly machine-generated for all practical purposes"); see generally Scientific Evidence 488-492, 525-530 (depicting and describing chromatogram and mass spectrum and noting that a computer equipped with a library of the mass spectra of known compounds can automatically interpret the spectrum of the un known substance by comparing it to the library of known spectra). An instrument that issues its own self-evident report is not a "witness" for Confrontation Clause pur poses. Accordingly, the direct results of instrument- based testing in the laboratory are not testimonial state ments under the Confrontation Clause.4

B. The Operators Of Laboratory Instruments May Attest To The Instruments' Proper Operation And Test Results Without Generating Testimonial Statements

If the Commonwealth in this case had introduced into evidence the raw data produced by a laboratory instru ment, that evidence would not have constituted a testi monial statement, for the reasons described above. The constitutional analysis does not change simply because state law allows the results of the same examination to be introduced through a laboratory employee's certifi cate or because the certificate is prepared for use in a criminal case. Documents that simply authenticate re cords that are not themselves testimonial, or that trans mit data evident from such non-testimonial records, are non-testimonial statements for purposes of the Confron tation Clause.

1. This Court's cases establish the principle that an authentication certificate prepared for a legal proceed ing does not, by itself, automatically constitute a testi monial statement. In Davis, the Court identified Dow dell v. United States, 221 U.S. 325 (1911), as an example of an early American case that did not involve "testimo nial" statements of "witnesses" under the Confrontation Clause. 547 U.S. at 825. In Dowdell, the Supreme Court of the Philippine Islands had supplemented the trial record in a criminal case with certificates from the clerk of court, the trial judge, and the court reporter indicat ing that their records showed that the defendants had entered not-guilty pleas and had been present at trial. The Dowdell Court rejected the defendants' claim that use of the certificates violated the Confrontation Clause and an equivalent provision of a federal statute that con tained a "Philippine Bill of Rights." The Court ex plained that the "general rule of law embodied" in the Confrontation Clause "ha[d] always had certain well recognized exceptions," one of which was the principle that "[d]ocumentary evidence to establish collateral facts, admissible under the common law, may be admit ted in evidence." 221 U.S. at 329-330. The Court held that the court officials who executed the certificates in Dowdell "were not witnesses against the accused" within the meaning of the Confrontation Clause because they "were not asked to testify to facts concerning [the defen dants'] guilt or innocence." Id. at 330. Dowdell estab lishes that the fact that certificates are prepared in lieu of testimony for use at trial (or, in that case, to supple ment the record of the trial) does not mean that those statements are "testimonial" ones subject to the Con frontation Clause.

Similarly, certificates of authenticity and "certifi cates of nonexistence of record" (CNRs) are certificates prepared for the sole purpose of being introduced at trial. But at common law, a certificate attesting that a document was a true copy of an original found among the public records where such documents were kept was admissible as evidence of the existence and authenticity of the public record. See Fed. R. Evid. 902(4), advisory committee's note ("The common law * * * recognized the procedure of authenticating copies of public records by certificate."); 5 Wigmore § 1678, at 863. Cross-exam ination of the author of the certificate was not required. Where the underlying public and business records in such cases were nontestimonial, the certificate authenti cating them was also "nontestimonial" hearsay exempt from the Confrontation Clause, even though it clearly was generated to prove a fact in a particular case. See, e.g., United States v. Adefehinti, 510 F.3d 319, 327-328 (D.C. Cir. 2008) (certificates authenticating bank re cords were not testimonial); United States v. Ellis, 460 F.3d 920, 927 (7th Cir. 2006) (certificate authenticating hospital records "is nontestimonial just as the underly ing business records are"). CNRs, which certify that a record that would be kept in the course of an organiza tion's regularly conducted activities did not exist in the entity's files, have also been admitted based on similar logic. The underlying principle is that, where a class of records is non-testimonial, a certificate reflecting the contents of those records, or the absence of a record from those contents, is no more testimonial than the records themselves. See United States v. Urqhart, 469 F.3d 745, 748 (8th Cir. 2006); United States v. Cervan tes-Flores, 421 F.3d 825, 830-834 (9th Cir.), cert. denied, 547 U.S. 1114 (2005); United States v. Rueda-Rivera, 396 F.3d 678, 680 (5th Cir. 2005).

2. That principle applies in this context as well. The operator of a laboratory instrument who merely attests to its output does not add testimonial content to the un derlying data. Rather, he effectively functions as a re porter, relaying the nontestimonial instrument-gener ated results to a court. Just as a representative of an entity may certify the existence and authenticity of the entity's non-testimonial records, a laboratory employee may certify the existence and authenticity of a labora tory instrument's results. In neither context does the individual performing the authentication function gener ate "testimonial" statements. Instead, that individual produces a non-testimonial certificate that permits the admission of underlying non-testimonial information.

As in Dowdell and the authentication and CNR con texts discussed above, the Confrontation Clause does not treat such laboratory certificates as "testimonial" statements. Indeed, courts in the United States have long allowed certificates in criminal cases to prove simi lar facts that are ascertainable without the exercise of discretion or judgment by the certifying public officer. See, e.g., T'Kach v. United States, 242 F.2d 937, 937-938 (5th Cir. 1957) (in prosecution for impersonating a fed eral officer or employee, affidavit of personnel officer and custodian of records of White House stating that no record showed that the defendant was employed as a personal representative of the President was admitted and did not violate Confrontation Clause); Bracey v. Commonwealth, 89 S.E. 144, 144-145 (Va. 1916) (in pros ecution for selling ardent spirits without a license, ad mission of certificate of state chemist showing analysis of beverage sold by the defendant did not violate con frontation rights); United States v. Benner, 24 F. Cas. 1084, 1085 (C.C.E.D. Pa. 1830) (No. 14,568) (in prosecu tion for arresting and imprisoning a foreign minister, certificate of Secretary of State indicating that the vic tim was an attache to the legation of Denmark properly admitted to show victim's status).

C. Admission Of The Certificates Of Analysis In This Case Did Not Violate The Confrontation Clause

Applying those principles here, the admission of the certificates of analysis in this case was constitutional. Although the certificates were prepared for trial in the course of a police investigation, the record does not dem onstrate that they contained "testimonial statements."

1. As petitioner acknowledges (Br. 7), each certifi cate of analysis conveyed only that a substance provided to the laboratory by a police officer (1) was "examined," (2) "was found to contain" cocaine, and (3) had an identi fied net weight. Pet. App. 24a-29a. Nothing in the cer tificates indicates that they represent more than (1) the result generated by a scientific instrument designed to chemically analyze a substance and determine its weight; and (2) a laboratory employee's report of those instrument-generated results. For the reasons dis cussed above, the "statement" of a laboratory instru ment that a substance contained cocaine of a particular weight is not testimonial. And the fact that the informa tion is conveyed by a laboratory employee's certificate, rather than a print-out or screen-shot of the instru ment's direct output, does not change the Confrontation Clause analysis.5

2. The record in this case contains no information about the "examination" that was conducted on the con trolled substances. The record does not reveal whether the examination was performed entirely by an instru ment, by a person applying substantial judgment to otherwise-unintelligible raw data, or some combination of the two. In Verde, the court concluded that equiva lent certificates of analysis executed under Massachu setts law were not "testimonial statements" subject to the Confrontation Clause because they "are neither dis cretionary nor based on opinion" and "merely state the results of a well-recognized scientific test determining the composition and quantity of the substance." Pet. App. 17a. To the extent that the record permits any inference about the nature of the information contained in the certificates of analysis admitted in this case, the inference is, as Verde suggests, that the "examination" documented in the certificates produced an instrument- generated result, with a human authenticator. And if the information contained in the certificates of analysis are not testimonial statements of witnesses, the mere use of the certificates as vehicles for conveying that in formation to the jury does not change the character of the evidence under the Confrontation Clause. Thus, the certificates cannot be described as "testimonial state ments" of "witnesses" for Confrontation Clause purpos es.

Petitioner now challenges (Br. 12) the "Massachu setts' courts' supposition that forensic reports are pure ly objective" and contends that "[s]uch reports reflect complicated, subjective interpretations of imprecise sci entific tests." That challenge comes far too late. Peti tioner never challenged the reliability of the test results in the trial court, as he could have. He did not even ar gue to the jury that the certificates of analysis were of no meaning without information concerning the type of tests that were performed and their reliability. He did the opposite and conceded that the prima facie showing of the drugs' identity and weight reflected in the certifi cates was proof beyond a reasonable doubt: "[T]he amount of drugs isn't in question." J.A. 47. In addition, while petitioner now asserts (Br. 32) that "there are at least seventeen different methods currently used for analyzing seized substances for the presence of drugs," he cites nothing to indicate that the method used in this case generated a "testimonial statement" of a hu man "witness" within the meaning of the Confrontation Clause. He cannot challenge the admissibility of the certificates of analysis based only on speculation that they contain underlying human judgment applied to readings produced by a laboratory instrument.

3. A holding that would bar certificates attesting to routine drug-testing results obtained directly from labo ratory instruments would inflict serious harms to impor tant public interests in criminal prosecutions, without producing offsetting benefits. In federal and District of Columbia cases, for instance, the Drug Enforcement Administration analyzed 52,948 controlled substance exhibits in fiscal year 2007.6 In the government's experi ence, most defendants do not challenge through cross- examination the determination of the substance involved or its laboratory-determined weight. An inflexible Con frontation Clause requirement to produce the laboratory employee who operated the instrument would impose significant resource costs on the government, with little benefit to defendants (who would often choose not to cross-examine or would simply stipulate to the relevant facts once the laboratory employee has appeared in court).

In other contexts, a requirement to produce the per son who conducted a test might foreclose prosecution altogether. Forensic testing frequently produces data whose evidentiary value may emerge only years later. See, e.g., 75 Years, supra note 2, at 1 (describing five- year time lapse between discovery of bodies of three teenage murder victims in Spotsylvania County, Vir ginia, and initial DNA tests and the closure of the case through additional scientific testing when the suspect at tempted to abduct another teenager). At that time, the particular laboratory employee may be entirely unavail able. And retesting may be impossible (e.g., because the testing process consumed the available biological or other material). If the death or unavailability years later of the operator of a laboratory instrument ren dered the instrument-generated result inadmissible, the truth-seeking process would be frustrated-even though the defendant would have had little or no cross-examina tion for a live witness had one appeared. The Confronta tion Clause does not require that result.

IV. The Confrontation Clause Does Not Mandate Automatic Production In Court Of All Participants In The Process Of Scientific Testing

Even if the Court were to conclude that presentation of scientific test results through the certificates of analy sis in this case violated the Confrontation Clause, it should leave room for other procedures that foster effi ciency while safeguarding any applicable cross-examina tion rights. These include the use of a testifying expert to provide an opinion concerning the results of scientific testing conducted by others and notice-and-demand statutes that afford an opportunity for cross-examina tion if the defendant indicates that he desires it.

A. The Confrontation Clause Permits Expert Opinion Test imony To Be Based On The Records Of Scientific Tests Conducted By Others

1. Federal Rule of Evidence 703 provides that an expert witness may base an opinion or inference on facts or data "perceived by or made known to the expert at or before the hearing." The facts or data on which the ex pert relies "need not be admissible in evidence in order for the opinion or inference to be admitted" if they are "of a type reasonably relied upon by experts in the parti cular field in forming opinions or inferences upon the subject." Fed. R. Evid. 703. The goal of Rule 703 is to "bring the judicial practice [regarding expert testimony] into line with the practice of the experts themselves when not in court." Fed. R. Evid. 703 advisory commit tee's note to 1972 Proposed Rules. In other words, an expert should be able to base the opinion he or she of fers in the courtroom on the same facts or data that he or she would rely upon in other professional settings, so long as that reliance is reasonable. Ibid.

Because of the prejudice that could result from ex posing the jury to inadmissible evidence, Rule 703 in structs courts not to permit disclosure of otherwise inad missible facts or data relied upon by an expert witness "unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion sub stantially outweighs their prejudicial effect." Fed. R. Evid. 703; see also Fed. R. Evid. 705 (providing that an expert may testify to an opinion without first testifying to the underlying facts or data). When otherwise inad missible facts or data underlying an expert's opinion are disclosed to the jury under Rule 703, they are admitted for the limited purpose of assisting the jury to decide what weight, if any, to give the expert's opinion and may not be considered by the jury as substantive evidence.7

2. Crawford "did not involve expert witness testi mony and thus did not alter an expert witness's ability to rely on (without repeating to the jury) otherwise inad missible evidence in formulating his opinion under Fed eral Rule of Evidence 703." United States v. Henry, 472 F.3d 910, 914 (D.C. Cir.), cert. denied, 128 S. Ct. 240 and 128 S. Ct. 247 (2007). Crawford also made clear that the Confrontation Clause "does not bar the use of testimo nial statements for purposes other than establishing the truth of the matter asserted." 541 U.S. at 60 n.9 (citing Tennessee v. Street, 471 U.S. 409, 414 (1985)). When otherwise inadmissible facts or data underlying an ex pert's opinion are admitted into evidence for the limited, non-hearsay purpose of assisting the jury to evaluate the expert's opinion, the Confrontation Clause is not impli cated, regardless of whether the facts or data include "testimonial statements" of witnesses not present at trial. See State v. Tucker, 160 P.3d 177, 194 (Ariz.), cert. denied, 128 S. Ct. 296 (2007); People v. Thomas, 30 Cal. Rptr. 3d 582, 587 (Ct. App. 2005); State v. Bunn, 619 S.E.2d 918, 920-921 (N.C. Ct. App. 2005); but see People v. Goldstein, 843 N.E.2d 727, 732-733 (N.Y. 2005) (re jecting the distinction between a statement offered as substantive evidence and a statement offered to shed light on an expert's opinion), cert. denied, 547 U.S. 1159 (2006).

The Confrontation Clause and Rule 703 thus permit a qualified expert in forensic chemistry to review the records of laboratory work conducted by others on a suspected controlled substance, and any instrument out put generated during that testing process, and testify to his opinion concerning the identity of the controlled sub stance that was tested, provided that those records and output are reasonably relied upon by experts in the field. See, e.g., United States v. Moon, 512 F.3d 359, 361 (7th Cir. 2008), petition for cert. pending, Nos. 07-1251, 07-10255 (filed Apr. 2, 2008); Dunn v. State, No. A08A0611, 2008 WL 2684851, *2-*4 (Ga. Ct. App. July 10, 2008). Similarly, a qualified expert in the field of DNA analysis can present an opinion at trial concerning the results of DNA testing, regardless of whether that expert personally participated in the testing process. See, e.g., State v. Crager, 879 N.E.2d 745, 758 (Ohio 2007), petition for cert. pending, No. 07-10191 (filed Mar. 26, 2008).

Such expert testimony complies with the Confronta tion Clause because the expert witness is available for cross-examination, and the only statement being pre sented to the jury as substantive evidence is the opinion testimony of that testifying expert. See Crager, 879 N.E.2d at 757-758; Tucker, 160 P.3d at 194; State v. Lit tle, 654 S.E.2d 760, 763 (N.C. Ct. App. 2008); Blaylock v. State, No. 06-07-00090-CR, 2008 WL 2038273, *3-*4 (Tex. Ct. App. May 14, 2008); Sauerwin v. State, 214 S.W.3d 266, 269-270 (Ark. 2005). A defendant is free to challenge the expert's opinion by exposing the fact that the expert is relying on the reported results of testing that he did not conduct or witness. Cf., e.g., United States v. Williams, 447 F.2d 1285, 1289-1290 (5th Cir. 1971) (describing "intens[e]" cross-examination of ex pert in property valuation focused on probing the auth enticity and accuracy of the sources on which he relied), cert. denied, 405 U.S. 954 (1972).8

Rule 703 also serves important interests in judicial economy and laboratory efficiency. Scientific evidence often is the product of the combined efforts of labora tory employees (who conduct tests on the evidence and operate the instruments) and a forensic examiner (who, where necessary, evaluates the test results and forms the conclusion that is relevant at trial). See generally Roberts v. United States, 916 A.2d 922, 937 (D.C. 2007) (describing "team" structure of DNA-testing process at the FBI laboratory). Rule 703 permits scientific evi dence to be presented at trial through a single knowl edgeable witness who can be cross-examined. That pro cedure prevents the trial process and the jury from be ing overwhelmed by the presentation of multiple wit nesses for each scientific test result. It also mitigates the substantial resource strain that would be placed on public and private laboratories if entire teams of em ployees were diverted from their day-to-day work to testify at trials.

B. Notice-And-Demand Statutes Adequately Protect Con frontation Rights

In recognition of the fact that scientific evidence in troduced in criminal trials often is not disputed and that laboratory work is impeded when employees must appe ar in court to testify about uncontested matters, a num ber of States have enacted "notice and demand" stat utes. Notice-and-demand statutes "are a formalized means of effectuating a stipulation to the admissibility of matters which often are not in dispute." State v. Cun ningham, 903 So. 2d 1110, 1119 (La. 2005); see Thomas v. United States, 914 A.2d 1, 9 (D.C. 2006) (District of Columbia notice-and-demand statute was enacted to relieve chemists responsible for analyzing controlled substances from the necessity of appearing at trial when chain of custody and result of analysis are not in dispute; nevertheless, court invalidated the provision on Con frontation Clause grounds), cert. denied, 128 S. Ct. 241 (2007).

Notice-and-demand statutes take a variety of forms. They typically require that, by a specified date before trial, the government serve a copy of the scientific test result on the defense and inform the defense of its intent to offer a certificate of analysis (or, in some cases, the scientific report itself) at trial in lieu of testimony from the laboratory employee who conducted the testing. See, e.g., Ala. Code § 12-21-301 (LexisNexis 2005) (cer tificate of analysis and notice of intent to offer it at trial must be served on opposing party at least 40 days before trial); La. Rev. Stat. Ann. § 15:501(a) (2005) (requiring notice ten days before trial). Some statutes specify the information that a certificate of analysis must contain; that information can include descriptions of the labora tory analyst's background and the tests he or she per formed. See, e.g., Ala. Code § 12-21-300 (LexisNexis 2005); Tex. Code Crim. Proc. Ann. art. 38.41 (Vernon 2005). The statutes generally provide that, within a specified time frame, the defense may file a written de mand that the laboratory employee be presented as a witness at trial. See, e.g., Alaska Stat. § 12.45.084(e) (2006); Ohio Rev. Code Ann. § 2925.51 (LexisNexis 2006).9 If a timely demand is filed, the statutes provide either that the certificate of analysis is not admissible at trial (in which case the government must call the witness in its case-in-chief) or that a subpoena will issue for the laboratory witness and the defense may cross-examine the witness in its own case.10 When no timely demand for the witness's appearance is filed, the statutes pro vide that the certificate of analysis or scientific report is admissible at trial and constitutes prima facie evidence of certain facts, such as the identity and weight of the controlled substance that was tested. See, e.g., Alaska Stat. § 12.45.084(a); Del. Code Ann. tit. 10, § 4330 (1999).

The variations among notice-and-demand statutes may raise different Confrontation Clause issues. But at a minimum, the statutes do not violate the Confrontation Clause when they merely require the defense to demand before trial that the laboratory witness be called to tes tify. A defense attorney's failure to make a demand con stitutes a valid waiver of the defendant's confrontation rights, at least so long as the defendant receives ade quate notice that a failure to demand the witness's testi mony will waive confrontation rights. Cf. State v. Caul field, 722 N.W.2d 304, 313 (Minn. 2006) (finding that state statute provided inadequate notice of consequence of failure to request testimony of laboratory employee).

As this Court has held, "[t]he most basic rights of criminal defendants are * * * subject to waiver[,]" Peretz v. United States, 501 U.S. 923, 936 (1991), includ ing the right to confrontation, see Brookhart v. Janis, 384 U.S. 1, 4 (1966). Whether and to what extent to cross-examine a witness, and whether to stipulate to a fact in lieu of demanding testimony, are decisions that fall within counsel's control over trial strategy. See Taylor v. Illinois, 484 U.S. 400, 418 (1988); Hinojos- Mendoza v. People, 169 P.3d 662, 669 (Colo. 2007), peti tion for cert. pending, No. 07-9369 (filed Feb. 4, 2008); Wilson v. Gray, 345 F.2d 282, 287-290 (9th Cir.), cert. denied, 382 U.S. 919 (1965). Notice-and-demand stat utes that require counsel to decide before trial whether to confront and cross-examine a laboratory witness, and provide counsel the opportunity to review the written record of the scientific evidence that the government proposes to present at trial in lieu of that witness's testimony, are reasonable state procedural rules for the exercise of a constitutional right. See Williams v. Geor gia, 349 U.S. 375, 382-383 (1955). Notice-and-demand statutes provide exactly what the Constitution guaran tees: "an adequate opportunity to cross-examine ad verse witnesses." United States v. Owens, 484 U.S. 554, 557 (1988) (emphasis added). "[O]nly the timing of the defendant's decision is changed." Hinojos-Mendoza, 169 P.3d at 668.11

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted.

GREGORY G. GARRE
Acting Solicitor General
MATTHEW W. FRIEDRICH
Acting Assistant Attorney
General
MICHAEL R. DREEBEN
Deputy Solicitor General
LISA H. SCHERTLER
Assistant to the Solicitor
General
DAVID E. HOLLAR
Attorney

 

 

SEPTEMBER 2008

1 In Crawford itself, the Court held that the Confrontation Clause was violated by the admission at trial of a woman's tape-recorded state ments made during a custodial police interrogation describing a stab bing committed by her husband, the defendant. 541 U.S. at 38, 68-69. In Davis, the Court held that a recorded 911 call in which a woman des cribed her former boyfriend's ongoing assault upon her and sought emergency help from the police was not testimonial and, thus, its admission did not violate the Confrontation Clause. 547 U.S. at 827- 828. In the consolidated case of Hammon v. Indiana, No. 05-5705, the Court held that the Confrontation Clause was violated by the admission of a second woman's oral statements to a police officer in her home describing an assault that her husband had committed upon her earlier, where no emergency existed when the statements were made and the objective primary purpose of the officer's interrogation was to investi gate potentially criminal past events. Id. at 829-830.

2 For instance, it was not until the second half of the 19th century that scientists would understand that fingerprints do not change over time and thus could be used as a method of identification for law- enforcement and other purposes. See William J. Herschel, The Origin of Finger-Printing 22-31 (1916). The Federal Bureau of Investigation (FBI) had no laboratory until 1932. Kim Waggoner, The FBI Labora tory: 75 Years of Forensic Science Service 1-2 (75 Years) <http://www. fbi.gov/hq/lab/fsc/backissu/oct2007/research/2007_10_research01_ test1.htm>. It was only 20 years ago that the FBI Laboratory conduc ted its first DNA analysis on evidence. Ibid.

3 Accord Smith v. Mott, 100 So. 2d 173, 174-176 (Fla. 1958) (report of alcoholic content of blood issued by state department of health was admissible as official record); Commonwealth v. Slavski, 140 N.E. 465, 468-469 (Mass. 1923) (certificates of state department of health offered to prove alcoholic content of substance were admissible as official records); Bracey v. Commonwealth, 89 S.E. 144, 144-145 (Va. 1916) (same); State v. Torello, 131 A. 429, 429-431 (Conn. 1925) (same). In addition, after Crawford, courts have widely and correctly held that regularly-kept maintenance records relating to laboratory instruments, which are prepared on a scheduled basis established by statute or reg ulation and which must be prepared without regard to whether the in strument has been utilized or whether the record will be used in liti gation, or certificates attesting to the fact that a machine was tested and found to be in working order, are business records, official records, or their equivalents and do not contain "testimonial statements" subject to the Confrontation Clause. See, e.g., Rackoff v. State, 637 S.E.2d 706, 709 (Ga. 2006); Bohsancurt v. Eisenberg, 129 P.3d 471, 474-480 (Ariz. Ct. App. 2006). See generally Palmer v. Hoffman, 318 U.S. 109, 115 (1943).

4 See Washington, 498 F.3d at 229-230 (raw data generated by gas chromatograph used to detect alcohol in blood sample are "'statements' of the machines themselves, not their operators" and are not subject to the Confrontation Clause); United States v. Moon, 512 F.3d 359, 362 (7th Cir. 2008) (instrument readouts from infrared spectrometer and gas chromatograph used to identify cocaine "are not 'statements' in any useful sense"), petition for cert. pending, Nos. 07-1251, 07-10255 (filed Apr. 2, 2008); State v. Chun, 943 A.2d 114, 169-170 (N.J. 2008) (Alcohol Influence Report generated automatically by Alcotest machine was not testimonial because, inter alia, the operator could not influence the machine's report and the machine could have no intent to advance a prosecution; court also observed that "[s]urely the Founding Fathers did not envision the day when a device that cannot itself be cross-ex amined would be the equivalent of a witness"), petition for cert. pend ing, No. 07-1562 (filed June 13, 2008); cf. United States v. Hamilton, 413 F.3d 1138, 1142-1143 (10th Cir. 2005) ("header" information gener ated automatically by computer upon uploading of pornographic image to newsgroup involved neither a "statement" nor a "declarant" and was not hearsay).

5 The certificate's report of drug weight illustrates the point. A digital scale may provide a reading of the weight of a substance that requires no human interpretation to understand. If a scale were equipped with a printer, the printed record of the item's weight would not be a testimonial statement; it would be the "statement" only of an instrument, the digital scale. Nothing in the constitutional analysis should change simply because a human laboratory employee reports the same instrument-generated result in the form of a certificate.

6 See DEA, Laboratories (visited Sept. 9, 2008) <http://www.usdoj. gov/dea/programs/laboratories.htm>.

7 See Fed. R. Evid. 703 advisory committee's notes to 2000 Amend ments (noting also that appropriate limiting instruction must be given by the court upon request); see also Wilson v. Merrell Dow Pharms. Inc., 893 F.2d 1149, 1153 (10th Cir. 1990) (applying rule of limited ad missibility before 2000 amendment to Rule 703); United States v. Du kagjini, 326 F.3d 45, 58 (2d Cir. 2003) (citing cases applying same), cert. denied, 541 U.S. 1092 (2004).

8 Many of the "statements" on which an expert might rely to form his opinion also do not have characteristics of "testimonial statements," which is another reason why expert testimony based on records of the laboratory work of others raises no Confrontation Clause concerns. For instance, a serologist who must determine whether materials con tain biological fluids that are suitable for DNA analysis (such as blood or semen) may record notes of the observations he makes or the tests he performs. Working notes of that nature are not intended to "bear witness" against a criminal defendant. Their purpose is to permit other laboratory employees who receive the evidence to make correct decisions about what to do next. See People v. Rawlins, 884 N.E.2d 1019, 1034-1036 (N.Y. 2008) (data and report generated by private DNA laboratory were not testimonial statements where technicians contem poraneously recorded their procedures and results to permit verifica tion of their work by reviewers and technicians did not compare the DNA profile they generated to the defendant's), petition for cert. pending, No. 07-10845 (filed May 9, 2008); People v. Geier, 161 P.3d 104, 140 (Cal. 2007) (concluding that biologist's notes and report were not testimonial and noting that the records were generated as part of a standard scientific protocol and were not themselves accusatory), petition for cert. pending, No. 07-7770 (filed Nov. 14, 2007); State v. Forte, 629 S.E.2d 137, 142-144 (N.C.) (serologist's report was not testimonial where it facilitated further examination of the evidence and the potential use of the report in court was only one purpose among several served by its creation), cert. denied, 549 U.S. 1021 (2006).

9 In some cases, the written demand must include a certification by defense counsel that the defense intends to cross-examine the witness in good faith, a statement of the basis upon which the defense intends to challenge the scientific evidence, or both. See, e.g., Ala. Code § 12-21- 302; La. Rev. Stat. Ann. § 15:501.

10 See, e.g., Del. Code. Ann. tit. 10, § 4332 (1999) (when timely written demand is filed by defense, forensic chemist must appear as prosecu tion witness); Ala. Code. § 12-21-302(a) (party against whom certificate is offered may request hearing to show cause why subpoena should issue for cross-examination).

11 Massachusetts contends (Br. 54-59) that petitioner had the opportunity to cross-examine the laboratory employees who prepared the certificates of analysis by issuing a subpoena under Mass. R. Crim. P. 17 or by exercising his right to compulsory process. Whether or not those avenues for securing cross-examination are adequate to safe guard Confrontation Clause rights-which is a question that was not reached or decided below-notice-and-demand statutes that simply structure when a defendant must decide whether he desires cross- examination of a laboratory witness do comply with the Confrontation Clause.