Between substance and procedure: a role for states' interests in the scope of the confrontation clause

Columbia Law Review

Volumn 110, Issue 1, 2010, Pages 161-206

  Sokoler, Jennifer B ^a  

^a NONE

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EID: 77950476975     PISSN: 00101958     EISSN: None     Source Type: Journal    
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References (420)

1. -541 U.S. 36 (2004).
2. See generally Jeffrey L. Fisher, Categorical Requirements in Constitutional Criminal Procedure, 94 Geo. L.J. 1493, 1496 (2006) [hereinafter Fisher, Categorical Requirements] (praising Crawford decision);
3. Richard D. Friedman, Adjusting to Crawford: High Court Decision Restores Confrontation Clause Protection, Crim. Just., Summer 2004, at 4, 5 [hereinafter Friedman, Adjusting to Crawford] (same).
4. Cf. David A. Strauss, On the Origin of Rules (With Apologies to Darwin): A Comment on Antonin Scalia's The Rule of Law as a Law of Rules, 75 U. Chi. L. Rev. 997, 998 (2008) (arguing that Justice Scalia's commitment to originalism is inconsistent with rule adopted in Crawford, which was result of evolutionary, common law process).
5. See generally Craig M. Bradley, Original Sin, Trial, Oct. 2008, at 52 (2008) (criticizing Crawford and its progeny).
6. See, e.g., Fisher, Categorical Requirements, supra note 2, at 1498 (arguing that at least in criminal procedure there are strong arguments for adopting a categorical as opposed to a balancing approach).
7. U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right ⋯ to be confronted with the witnesses against him .").
8. Crawford, 541 U.S. at 53-54.
9. Id. at 51 (quoting 2 Noah Webster, An American Dictionary of the English Language 114 (1828)). Many scholars have characterized Justice Scalia's opinion as originalist. See, e.g., Stephanos Bibas, Originalism and Formalism in Criminal Procedure: The Triumph of Justice Scalia, the Unlikely Friend of Criminal Defendants?, 94 Geo. L.J. 183, 184 (2005) (noting that in Crawford, Justice Scalia advocated for "originalist, formalist rethinking" of law);
10. cf. Bradley, supra note 3, at 52-53 (criticizing Justice Scalia's use of "cases and treatises from the 19th century, which were not available to the framers," to distil the meaning of the Constitution).
11. See Crawford, 541 U.S. at 68 ("We leave for another day any effort to spell out a comprehensive definition of 'testimonial.'").
12. Compare People v. Geier, 161 P.3d 104, 140 (Cal. 2007)
13. -(holding forensic reports are nontestimonial), and Commonwealth v. Verde, 827 N.E.2d 701, 706 (Mass. 2005) (same)
14. , with Hinojos-Mendoza v. People, 169 P.3d 662, 666-67 (Colo. 2007)
15. -(holding forensic reports are testimonial), and Johnson v. State, 929 So. 2d 4, 8 (Fla. Dist. Ct. App. 2005) (same).
16. See, e.g., Bradley Morin, Note, Science, Crawford, and Testimonial Hearsay: Applying the Confrontation Clause to Laboratory Reports, 85 B.U. L. Rev. 1243, 1255-69 (2005) (discussing conflicting state court decisions regarding status of laboratory reports);
17. Matthew Yanovitch, Comment, Dissecting the Constitutional Admissibility of Autopsy Reports After Crawford, 57 Cath. U. L. Rev. 269, 287-91 (2008) (surveying state court decisions dealing with admissibility of laboratory reports post-Crawford and finding state holdings in tension with Supreme Court precedent);
18. Paul C. Giannelli, Admissibility of Lab Reports: The Right of Confrontation Post-Crawford, Crim. Just., Fall 2004, at 26, 27 (2004) [hereinafter Giannelli, Admissibility of Lab Reports] (discussing issues raised in lab report debate). Due to both practical concerns and doctrinal considerations, this Note does not distinguish between the various forensic sciences. Thus, the term "laboratory report" encompasses all forensic reports without regard to the particular methods used. As the National Research Council of the National Academies explained in a recent report detailing major deficiencies in the "forensic science infrastructure" of the United States, the term forensic science covers a host of disciplines that vary widely with regard to techniques, methodologies, reliability, types and numbers of potential errors, research, general acceptability, and published material. Some of the forensic science disciplines are laboratory based (e.g., nuclear and mitochondrial DNA analysis, toxicology and drug analysis);
19. others are based on expert interpretation of observed patterns (e.g., fingerprints, writing samples, toolmarks, bite marks, and specimens such as hair). Nat'l Research Council of the Nat'l Acads., Strengthening Forensic Science in the United States: A Path Forward 6-7, 39 (2009) [hereinafter National Academy Report]. The Committee that drafted the report concluded that it would be impracticable to address each discipline separately. Id. at 7. Similar concerns apply to this Note. Moreover, to the extent that the Supreme Court's current Confrontation Clause doctrine does not take into account the reliability of evidence when determining whether a witness must be available for purposes of cross-examination, the key difference between the various forensic sciences-their accuracy-is largely irrelevant.
20. See infra Part I.B.1 (analyzing the Supreme Court's decision in Crawford v. Washington, 541 U.S. 36, in which the Court jettisoned reliability as a criteria for determining whether a defendant has a right to confront a witness). The Supreme Court's recent decisions considering whether laboratory reports trigger a defendant's right to confrontation are consistent with this view.
21. After the Court issued its decision in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), holding that a defendant had the right to confront a forensic analyst who prepared a report certifying that a seized substance was cocaine, the Court issued summary opinions in a number of cases dealing with other types of forensic evidence.
22. See Steven N. Yermish, Melendez-Diaz and the Application of Crawford in the Lab, The Champion, Aug. 2009, at 28, 30 (arguing that Supreme Court's decision to "issue [ ] summary dispositions, or "GVR" opinions, in several cases based upon Melendez-Diaz" confirms that the Melendez-Diaz holding "applies to other forensic evidence that is subject to lab analysis" including "DNA, ballistics, fingerprint, serology, toxicology, and alcohol testing").
23. Jurors place a great deal of weight on forensic evidence, especially DNA evidence. See National Academy Report, supra note 10, at 48-49 ("Some [scholars] are concerned that the conclusiveness and finality of the manner in which forensic evidence is presented on television results in jurors giving more or less credence to the forensic experts and their testimony than they should, raising expectations, and possibly resulting in a miscarriage of justice.");
24. Pub. Defender Serv. for the District of Columbia, Brady Poll Results 2 (2003), available at http://www.pdsdcorg/Resources/SLD/Brady%20Poll%20Results, %20December%202003.pdf (on file with the Columbia Law Review) (concluding that those surveyed found DNA evidence more persuasive than any other form of evidence considered in the survey);
25. Tom R. Tyler, Viewing CSI and the Threshold of Guilt: Managing Truth and Justice in Reality and Fiction, 115 Yale L.J. 1050, 1055 (2006) (concluding that while CSI effect is plausible it is unclear whom it benefits-prosecutors or defendants);
26. Andrew P. Thomas, The CSI Effect: Fact or Fiction, 115 Yale L.J. Pocket Part 70, 70 (2006), available at http://yalelawjournal.org/images/pdfs/32.pdf (on file with the Columbia Law Review) (discussing survey showing "38% [of prosecutors] believed they had at least one trial that resulted in either an acquittal or hung jury because forensic evidence was not available");
27. see also Diane Boudreau, CSI Effect: Not Guilty, Ariz. St. U. Res. Stories, Mar. 24, 2008, at http://researchstories.asu.edu/2008/03/csi-effect- gets-a-not-guilty-v.html (on file with the Columbia Law Review) (noting that even if in CSI episodes, forensics do not play significant role in determining whether a defendant is convicted, belief in the "CSI effect" may have affected the behavior of prosecutors and defense attorneys). Changes in science have also increased the significance of forensic reports.
28. Cf. Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 55 (2008) (presenting findings of first empirical study on "how the criminal system in the United States handled the cases of people who were subsequently found innocent through postconviction DNA testing").
29. Much has been written on the "federalization" of criminal law under statutes like RICO. See, e.g., Thane Rehn, Note, RICO and the Commerce Clause: A Reconsideration of the Scope of Federal Criminal Law, 108 Colum. L. Rev. 1991, 1991 (2008) (considering tension between the "rapid expansion of federal criminal law" and modern Court's "limits on the scope of congressional commerce power"). The majority of criminal cases, however, still take place in state courts.
30. See Roger A. Hanson & David B. Rottman, United States: So Many States, So Many Reforms, 20 Just. Sys. J. 121, 122 (1999) ("[S] tate general jurisdiction trial court judges resolve 416 criminal cases each year (more than five times the number of criminal cases handled by their federal counterparts).").
31. Brief of the State of Alabama et al. as Amici Curiae Supporting Respondent at 24-29, Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) (No.07-591) [hereinafter Brief of the States].
32. -14. Id.; see also National Academy Report, supra note 10, at 39 (discussing the "number of factors"-including "[i]nsufficient [r]esources"-that "have combined in the past few decades to place increasing demands on an already overtaxed, inconsistent, and underresourced forensic science infrastructure").
33. See Innocence Project, Understand the Causes: Unvalidated or Improper Forensic Science, at http://www.innocenceproject.org/understand/Unreliable- Limited-Science.php (last visited Aug. 26, 2009) (on file with the Columbia Law Review) (providing examples of wrongful convictions based largely on misplaced trust in forensic evidence).
34. Id. See generally National Academy Report, supra note 10, at 14-16 (identifying numerous deficiencies in the forensic laboratory system, including a lack of scientific knowledge and inadequate resources and oversight);
35. Solomon Moore, Science Found Wanting in Nation's Crime Labs, N.Y. Times, Feb. 5, 2009, at A1 (discussing National Academy of Sciences report detailing "shoddy scientific practices" involved in creation of forensic evidence that has been used to convict "thousands of defendants for nearly a century");
36. John Solomon, FBI's Forensic Test Full of Holes, Wash. Post, Nov. 18, 2007, at A1 (discussing "hundreds of defendants sitting in prisons nationwide [who] have been convicted with the help of an FBI forensic tool [bullet lead analysis] that was discarded more than two years ago" as "unreliable and potentially misleading").
37. See Petition for Writ of Certiorari at 16, Melendez-Diaz, 129 S. Ct. 2527 (No.07-591), 2007 WL 3252033 (arguing cross-examination exposes error and promotes integrity of forensic labs). Confrontation as defined in Crawford may be an inadequate remedy to the systemic deficiencies of forensic laboratories across the United States. After the Supreme Court's holding in Melendez-Diaz, however, defendants may have maxed out the potential of the Confrontation Clause to take on this larger problem-at least under the current Crawford framework (which is significantly more powerful than the right recognized under the previous doctrine, see infra Part I.A). Not only does Crawford create a right that is vested in the defendant for use as he sees fit, but it also creates a rule whose application is clear ex ante.
38. See Fisher, Categorical Requirements, supra note 2, at 1518-1519 (discussing the superior administrability and predictability of categorical rules). Criminal defendants can use their right to confront lab analysts as an additional bargaining chip in pretrial negotiations with the government. See Posting of Pamela Metzger, in Response to Lab Reports and a Notice-and-Demand Statute-A Significant Decision from Minnesota, The Confrontation Blog, at http://confrontationright.blogspot. com/2006/10/lab-reports-and-notice-and- demand.htmlcomments (Oct. 7, 2006, 00:13 EST) (on file with the Columbia Law Review) [hereinafter Metzger, Blog Post] ("[D]efense lawyers won't routinely give something ⋯ for nothing." (emphasis omitted)).
39. Melendez-Diaz, 129 S. Ct. at 2532.
40. For example, during the petitioner's argument, Justice Kennedy commented that $1 billion out of the $6 billion federal courts' budget is "spent under the Criminal Justice Act for experts and translators and counsels .... [T] his is a very, very substantial burden if we tell every State in the country that⋯ in every drug case ⋯ the State must produce the expert." Transcript of Oral Argument at 21-22, Melendez-Diaz, 129 S. Ct. 2527 (No.07-591), 2008 WL 4892843 [hereinafter Transcript of Melendez-Diaz Oral Argument]. For discussion of states' interests identified in the Melendez-Diaz briefs, see infra notes 104-106 and accompanying text. In the opinion itself, both the majority and the dissent considered the effect of the Court's holding on state criminal justice systems. 129 S. Ct. at 2540-42 (discussing states' interests);
41. Id. at 2549-2550 (Kennedy, J. dissenting) (same). The majority disputed the extent to which its holding would actually burden laboratories but, more importantly, it stressed that the Confrontation Clause does not permit these considerations to be taken into account.
42. Id. at 2540 (noting that " [i] t is not clear whence we would derive the authority to" modify the confrontation right to take into account states' interests).
43. See Melendez-Diaz, 129 S. Ct. at 2540. The limited capacity of the Crawford testimonial analysis to capture other conflicting interests implicated by the Confrontation Clause has been documented elsewhere, most notably in domestic violence and child abuse contexts where prosecutors try to avoid forcing victims to undergo the traumatic experience of taking the stand. For discussion of domestic violence concerns,
44. see, e.g., Tom Lininger, Prosecuting Batterers After Crawford, 91 Va. L. Rev. 747, 749-52 (2005) (noting Crawford's immediate deleterious impact on domestic violence prosecutions);
45. Myrna S. Raeder, Domestic Violence Cases After Davis: Is the Glass Half Empty or Half Full?, 15 J.L. & Pol'y 759, 761-62 (2007) (discussing difficulty of applying the Court's post-Crawford holdings to statements of domestic violence victims to police immediately following episode of abuse).
46. Melendez-Diaz, 129 S. Ct. at 2541 & n.12 (recognizing authority of States to adopt the "simplest" forms of "procedural rules governing objections" but leaving open the question of whether more burdensome procedures are constitutional).
47. Paul C. Giannelli was the first person to coin the phrase "notice and demand" statutes. Pamela R. Metzger, Cheating the Constitution, 59 Vand. L. Rev. 475, 481 n.20 (2006) [hereinafter Metzger, Cheating];
48. see also Paul C. Giannelli, Expert Testimony and the Confrontation Clause, 22 Cap. U. L. Rev. 45, 46, 84 (1993) [hereinafter Giannelli, Expert Testimony] (encouraging states to adopt N & D statutes).
49. Metzger, Cheating, supra note 22, at 481-82; see infra Part II.B (discussing N & D statutes).
50. Metzger, Cheating, supra note 22, at 482.
51. Id. at 516.
52. Many of the post-Crawford state court cases assessing the constitutionality of N & D statutes are reviewed and discussed infra Part II.C.1 & 2.
53. Magruder v. Commonwealth, No. 1982-05-4, 2007 WL 737552 (Va. Ct. App. Mar. 13, 2007), aff'd 657 S.E.2d 113 (Va. 2008),
54. cert. granted sub nom Briscoe v. Virginia, 129 S. Ct. 2858 (2009).
55. Not all states use the same rules as the Federal Rules of Evidence (FRE), but the basic concepts are generally consistent. David Alan Sklansky, Evidence: Cases, Commentary, and Problems 5 (2d ed. 2008).
56. The argument in this Note is based on the Federal Rules of Evidence, which define hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed. R. Evid. 801(c).
57. See Thomas J. Reed, Crawford v. Washington and the Irretrievable Breakdown of a Union: Separating the Confrontation Clause from the Hearsay Rule, 56 S.C. L. Rev. 185, 199, 216 (2004) (characterizing harmonization of law of hearsay with Confrontation Clause in Roberts as "shotgun wedding" and Crawford as "irreconcilable breakdown of the relationship"); s
58. ee also Richard D. Friedman, Confrontation: The Search for Basic Principles, 86 Geo. L.J. 1011, 1022-26 (1998) [hereinafter Friedman, Basic Principles] (making originalist argument that law of hearsay was not intended to be same as right to confrontation).
59. U.S. Const. amend. VI.
60. The first "exception" is built into the definition of hearsay itself. Out-of-court statements are not prohibited by the hearsay rule if they are not offered for their truth (e.g, for purposes of impeachment, theory of notice, etc.). Fed. R. Evid. 801(c).
61. In Confrontation Clause jurisprudence, a similar not-for-the-truth "exception" seems to exist. See Roberts, 448 U.S. at 62 n.4, 63 (holding Confrontation Clause was "intended to exclude some hearsay" and defining hearsay as " 'testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of the matters asserted therein'" (citation omitted)).
62. In Crawford v. Davis, the Court seemed to maintain the "exception" by mentioning that "[t]he [Confrontation] Clause ⋯ does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." 541 U.S. 36, 59 n.9 (2004)
63. -(citing Tennesse v. Street, 471 U.S. 409, 414 (1985)). For an argument that dicta in Crawford does not capture the limits imposed on the use of out-of-court statements not for their truth,
64. see Jeffrey L. Fisher, The Truth About the "Not for Truth" Exception to Crawford, The Champion, Jan./Feb. 2008, at 18, 18-19. Beyond the not-for-its-truth exception, Federal Rule of Evidence 801 also establishes several categories of statements that are "not hearsay" even if they are offered for their truth. Rule 802 bars all hearsay unless its admission is "provided by these rules." Rules 803 and 804 set out the hearsay "exceptions"-those circumstances when a statement that qualifies as hearsay under 801 is, nevertheless, admissible (e.g., statements of "present sense impression," "public records," and "former testimony"). Finally, Rule 807 creates a "residual exception," allowing hearsay statements that do not fall into one of the 803 and 804 exceptions to be admitted if they have certain indicia of "trustworthiness."
65. Judges determine the admissibility of hearsay. Fed. R. Evid. 104(a).
66. Fed. R. Evid. art. VIII advisory committee's note (arguing that when forced to choose between "less than best [evidence] and no evidence at all" it would be unreasonable to adopt a policy that required all courts at all times to "do [ ] without" and that instead hearsay law is "subject to numerous exceptions under circumstances supposed to furnish guarantees of trustworthiness").
67. Roberts, 448 U.S. at 65 ("The focus of the Court's concern has been to insure that there are indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant. " (citations omitted) (internal quotation marks omitted)).
68. Id. at 63 ("The Court has emphasized that the Confrontation Clause reflects a preference for face-to-face confrontation at trial. " (emphasis added)).
69. But see Akhil Reed Amar, Foreword: Sixth Amendment First Principles, 84 Geo. L.J. 641, 690 (1996) [hereinafter Amar, First Principles] (arguing that Supreme Court holdings suggesting that Sixth Amendment requirement of confrontation is merely preference must be wrong, in part because "the word 'preference' nowhere appears in the Fourth and Sixth Amendments, or in their accompanying history").
70. Roberts, 448 U.S. at 66. Another potential protection of the confrontation right under Roberts was a requirement that for the out-of-court statement to be introduced, the declarant had to be unavailable. Id. Over time, however, the Court seemed to move away from this requirement.
71. See Miguel A. Méndez, Crawford v. Washington: A Critique, 57 Stan. L. Rev. 569, 576 (2004) ("Notions that the Confrontation Clause required the prosecution to produce or show the unavailability of the hearsay declarant in all cases were dispelled in United States v. Inadi."); Reed, supra note 30, at 199-216 (tracing breakdown of this requirement).
72. Roberts, 448 U.S. at 66. This exception in Roberts echoes the residual hearsay exception in the Federal Rules of Evidence. See Fed. R. Evid. 807 (admitting reliable evidence outside of 803 and 804 categories).
73. The Sixth Amendment was incorporated to apply to the states via the Fourteenth Amendment in Pointer v. Texas, 380 U.S. 400, 403 (1965).
74. Roberts, 448 U.S. at 64 (quoting Chambers v. Mississippi, 410 U.S. 284, 295 (1973) (citation omitted)).
75. Id.
76. Id.
77. Id. at 78-79 (Brennan, J., joined by Marshall & Stevens, JJ., dissenting). Justice Brennan stressed that the prosecution bears a "a heavy burden ⋯ to secure the presence of the witness or to demonstrate the impossibility of that endeavor," but he did not challenge the majority's basic claim that at some point the defendant's interest should be considered in relation to the state interest in administering justice.
78. Id.
79. See, e.g., Friedman, Adjusting to Crawford, supra note 2, at 5 ("In Crawford v. Washington, the U.S. Supreme Court radically transformed its doctrine governing the Confrontation Clause . . . ." (citation omitted));
80. Reed, supra note 30, at 216 (arguing that Crawford divorced Confrontation Clause from law of hearsay).
81. . For analysis of originalism in Crawford, see Bibas, supra note 7, at 189-93; Bradley, supra note 3, at 54. As in most originalist decisions, the historical basis of the rule is disputed. For competing sides of the historical debate,
82. see generally Thomas Y. Davies, Revisiting the Fictional Originalism in Crawford's "Cross-Examination Rule": A Reply to Mr. Kry, 72 Brook. L. Rev. 557 (2007);
83. Robert Kry, Confrontation Under the Marian Statutes: A Response to Professor Davies, 72 Brook. L. Rev. 493 (2007)
84. Crawford v. Washington, 541 U.S. 36 (2004).
85. Id. at 50.
86. Id. at 50-51.
87. Id. at 51.
88. Id. (quoting Webster, supra note 7, at 114). For criticism of Justice Scalia's selection of this definition of "witness,"
89. see Randolph N. Jonakait, "Witnesses" in the Confrontation Clause: Crawford v. Washington, Noah Webster, and Compulsory Process, 79 Temp. L. Rev. 155 (2006).
90. . Vague dicta in Crawford suggested that there might still be room for a Roberts analysis to limit the admissibility of nontestimonial statements. Justice Scalia commented that "[w]here nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law-as does Roberts." Crawford, 541 U.S. at 68. Post-Crawford, some scholars argued that Roberts or an alternative framework should grant defendants a right to confront certain nontestimonial statements.
91. See, e.g., Robert P. Mosteller, Confrontation as Constitutional Criminal Procedure: Crawford's Birth Did Not Require that Roberts Had to Die, 15 J.L. & Pol'y 685, 686 (2007) (noting author's initial post-Crawford hope "that Roberts would be allowed to continue to provide supplementary protection for nontestimonial hearsay that was facially problematic");
92. The Supreme Court, 2003 Term-Leading Cases, 118 Harv. L. Rev. 316, 322 (2003) [hereinafter Supreme Court-Leading Cases] ("[T]he Court failed to instruct conclusively whether any nontestimonial statements receive the protection of the Confrontation Clause."). Courts too were confused.
93. See James J. Duane, The Cryptographic Coroner's Report on Ohio v. Roberts, Crim. Just., Fall 2006, at 37, 37 (describing post-Crawford uncertainty as to whether Roberts still applied to nontestimonial hearsay).
94. Chief Justice Rehnquist, however, in his concurring opinion was quite clear that the majority was overruling Roberts: "I dissent from the Court's decision to overrule Ohio v. Roberts." 541 U.S. at 69 (Rehnquist, C.J., concurring in the judgment);
95. see also W.Jeremy Counseller & Shannon Rickett, The Confrontation Clause After Crawford v. Washington: Smaller Mouth, Bigger Teeth, 57 Baylor L. Rev. 1, 3 (2005) ("Crawford ⋯ narrows the scope of the Clause's application to only ⋯ testimonial statements made to the government for use in a later proceeding."). Davis v. Washington ended the debate, holding that "a limitation [to testimonial statements] so clearly reflected in the text of the constitutional provision must fairly be said to mark out not merely its 'core,' but its perimeter." 547 U.S. 813, 824 (2006). Despite this clear statement, confusion persists in the lower courts. Duane, supra, at 38 (noting that "lower courts have thus far been almost completely unable to accurately decipher what Davis" meant for continuing validity of Roberts).
96. Crawford, 541 U.S. at 68 ("We leave for another day any effort to spell out a comprehensive definition of 'testimonial.'"). For a discussion of how to define testimonial, see infra Parts I.B.2 & I.C.
97. Crawford, 541 U.S. at 60, 62. The Court, however, based its holding in part on the common law at the time of the founding and left open the possibility that statements falling into historic hearsay exceptions might not be covered by the Confrontation Clause. Id. at 43, 56 (identifying "common law" as "founding generation's immediate source of the [confrontation] concept" and suggesting that statements, such as "business records or statements in furtherance of a conspiracy," that fit within historic hearsay exceptions are not testimonial). In Crawford, it is unclear whether these statements do not trigger the confrontation right because of their status as historic hearsay exceptions or because these statements would not have been considered testimonial.
98. Id. The Court resolved the question in Melendez-Diaz, holding that "[b]usiness 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." 129 S. Ct. 2527, 2539-2540 (2009).
99. Crawford, 541 U.S. at 61.
100. Id. at 65 ("[O]ne court relied on the fact that the witness's statement was made to police while in custody on pending charges .... Other courts routinely rely on the fact that a prior statement is given under oath in judicial proceedings." (citations omitted)).
101. Id. at 69. Arguably, Crawford also holds that the Confrontation Clause only applies to testimonial statements. See supra note 51 (surveying conflicting academic and judicial opinions about scope of Crawford's holding). For praise of this rule,
102. see Bibas, supra note 7, at 183 ("Crawford succeeded because it cleared away muddled case law, laid a strong foundation in the historical record, and erected a simple, solid, workable rule.").
103. But see Won Shin, Recent Development, Crawford v. Washington: Confrontation Clause Forbids Admissions of Testimonial Out-of-Court Statements Without Prior Opportunity to CrossExamine, 40 Harv. C.R.-C.L. L. Rev. 223, 231 (2005) (arguing that testimonial is unstable category and noting that in other areas of criminal procedure, Supreme Court has struggled to establish "consistent definition of testimonial statements");
104. cf. Crawford, 541 U.S. at 74-76 (Rehnquist, C.J. concurring in the judgment) (arguing against categorical rule barring testimonial evidence and suggesting that predictability majority promises may prove illusory).
105. Crawford, 541 U.S. at 59 n.9 ("[W]hen the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements."
106. -(citing California v. Green, 399 U.S. 149, 162 (1970))). Scholars argue that this aspect of the Crawford decision and California v. Green should be changed to take into account situations where a witness's failed memory or other exigent circumstances render cross-examination regarding an out-of-court statement at trial merely pro forma. See, e.g., Méndez, supra note 37, at 590-93.
107. Crawford, 541 U.S. at 54.
108. See Méndez, supra note 37, at 587 ("Crawford's principal contribution is its potential to halt the inevitable erosion of confrontation rights inherent in the RobertsWright line of cases .... But Crawford too has its costs. Chief among them is uncertainty about the definition of 'testimonial statements.'");
109. Supreme Court-Leading Cases, supra note 51, at 317 (2004) ("Crawford is as significant for the questions it raised and left unanswered as for those it resolved."). For identification and analysis of some of the issues left open in Crawford, see Richard D. Friedman, The Confrontation Clause Re-Rooted and Transformed, 2004 Cato Sup. Ct. Rev. 439, 456-468
110. Crawford, 541 U.S. at 51 (internal quotation marks omitted).
111. Id. at 51-52 (internal quotation marks omitted).
112. Id. at 52 (internal quotation omitted).
113. Id. at 56 n.7.
114. Id. at 38.
115. Id. at 68 ("Whatever else the term covers, 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.").
116. Id. at 52.
117. Perhaps the area that has received the most attention is domestic abuse. See supra note 20.
118. Crawford, 541 U.S. at 61 (citing Akhil Reed Amar, The Constitution and Criminal Procedure 125-31 (1997), and Friedman, Basic Principles, supra note 30). While Professor Friedman has argued for a definition of testimonial that is most in line with the third definition of testimonial laid out in Crawford, Professor Amar has advocated for an approach that is analogous to the first and second definitions.
119. Compare Friedman, Adjusting to Crawford, supra note 2, at 9 ("I believe the third of these [definitions of testimonial in Crawford] is the most useful and accurate."),
120. with Akhil Reed Amar, Confrontation Clause First Principles: A Reply to Professor Friedman, 86 Geo. L.J. 1045, 1045 (1998) (agreeing with Professor Friedman's claim that Confrontation Clause only applies to those who are "witnesses" but arguing that definition of "witnesses" offered by Friedman is "a tad too broad" and suggesting that "the Clause encompasses only those 'witnesses' who testify either by taking the stand in person or via government-prepared affidavits, depositions, videotapes, and the like").
121. Although Justice Thomas seems more concerned with formality than government involvement, Amar's conclusions are largely in accord with the approach towards the Confrontation Clause articulated in Justice Thomas's concurring opinion in White v. Illinois, 502 U.S. 346, 365 (1992) (Thomas, J., concurring), and his partial dissent in Davis v. Washington, 547 U.S. 813, 836-837 (2006) (Thomas, J., concurring in judgment in part and dissenting in part).
122. -547 U.S. at 817. Davis was a consolidation of two cases concerning statements obtained by law enforcement in the domestic violence context-Davis v. Washington and Hammon v. Indiana. In Davis, the Supreme Court of Washington found that a domestic violence victim's statements in response to a 911 operator's questions were nontestimonial. Id. at 817-19.
123. In Hammon v. Indiana, the Indiana Supreme Court held that statements made by a domestic violence victim to police officers who had arrived at the victim's home in response to a "reported domestic disturbance" were nontestimonial. Id. at 819, 821 (internal quotation marks omitted). Critically, in Hammon, the defendant was in a separate room from the victim and under police surveillance at the time that the victim spoke with law enforcement.
124. Id. at 819-820
125. Id. at 826;
126. see also Robert P. Mosteller, Softening the Formality and Formalism of the "Testimonial" Statement Concept, 19 Regent U. L. Rev. 429, 433 (2007) [hereinafter Mosteller, Softening the Formality of " Testimonial"] ("Davis's most important clarification of a possible general interpretation of 'testimonial' as suggested in Crawford is negative. It rejects the definition centered on the formality and formalism of the Justice Thomas definition.... Moreover, it specifically rejects some of the more extreme amplifications of such a definition." (footnote omitted)).
127. Davis, 547 U.S. at 822. For criticism of the primary purpose test established in Davis,
128. see id. at 839-40 (Thomas, J. concurring in judgment in part and dissenting in part) (arguing primary purpose test will yield unpredictable results because most acts have multiple purposes and any attempt to create "hierarchy of purpose... will inevitably be... an exercise in fiction"). Also, despite the reference to the purpose of the interrogator in the majority opinion's broad definition of when a police interrogation is testimonial, the subsequent analysis is inconsistent as to whose intent matters.
129. See, e.g., id. at 823 n.1 (" [I]t is in the final analysis the declarant's statements, not the interrogator's questions, that the Confrontation Clause requires us to evaluate.").
130. For an overview of issues, see Candice Chiu, Convoluting the Confrontation Right: Davis v. Washington, 30 Harv. J. L. & Pub. Pol'y 1059, 1066-69 (2007) (discussing deficiencies of police presence and existence of an ongoing emergency as "implicit foci" of the primary purpose test). Criticism of these factors, especially the emergency/nonemergency distinction, abound.
131. See, e.g., Raeder, supra note 20, 788-89 (noting difficulty of applying "primary purpose" test in domestic violence situations);
132. Deborah Tuerkheimer, A Relational Approach to the Right of Confrontation and its Loss, 15 J.L. & Pol'y 725, 736-737 (2007) (discussing misfit between continuing/past events distinction and domestic violence).
133. Davis, 547 U.S. at 827.
134. Id. Even the name of an alleged attacker was relevant for this purpose as the responding officers needed to know whom to look for and what kind of threat the suspect posed.
135. Id.
136. Id. (emphasis omitted).
137. Id. at 827-28.
138. But see id. at 837 (Thomas, J., concurring in judgment in part and dissenting in part) (arguing that meaning of testimonial is limited to statements that are "by their very nature, taken through a formalized process"). In response to Justice Thomas's dissenting argument that formality should be the sine qua non of identifying testimonial statements, Justice Scalia found that "[r]estricting the Confrontation Clause to the precise forms against which it was originally directed is a recipe for its extinction."
139. Id. at 831 n.5 (majority opinion). In keeping with the trend of explicit ambiguity regarding the meaning of testimonial statements, however, Justice Scalia also noted that "[i]t imports sufficient formality, in our view, that lies to such [police] officers are criminal offenses" thereby raising the question whether criminal penalties for lying are requisite for finding a statement to be testimonial.
140. Id.
141. see Mosteller, Softening the Formality of "Testimonial," supra note 70, at 437 (commenting on breadth of such limitation on testimonial category).
142. Crawford v. Washington, 541 U.S. 36, 63 (2004).
143. For analysis suggesting that the Crawford rule is not more predictable than the Roberts doctrine, see supra note 56.
144. See supra notes 9-10 (referring to state court opinions and academic literature considering status of forensic reports under Crawford)
145. -129 S. Ct. 2527 (2009).
146. Id. at 2533
147. Id. at 2531-32;
148. see also Richard D. Friedman, An Initial Reaction to the MelendezDiaz Decision, The Confrontation Blog, June 25, 2009, at http://confrontationright. Blogspot.com/search?q=initial+reaction (on file with the Columbia Law Review) [hereinafter Friedman, Initial Reaction] (rejecting proposition that Melendez-Diaz provided no justification for its holding but agreeing that the "opinion makes the case... briefly because Justice Scalia believes... that this is an easy case"). The remaining twelve pages of the majority opinion are devoted to refuting arguments advanced by the dissent. Critically, Justice Scalia's narrow majority included Justice Souter. Several commentators have suggested that if Justice Sotomayor's views on the Confrontation Clause differ from Justice Souter's, the Melendez-Diaz holding could be narrowed or even overturned in the near future.
149. See Lyle Denniston, Analysis: Is Melendez-Diaz Already Endangered?, SCOTUSblog, June 29, 2009, at http://www.scotusblog.com/wp/new-law-report-case- granted/(on file with the Columbia Law Review) ("Judge Sonia Sotomayor, if confirmed as a Justice, may hold the deciding vote on the future of a controversial ruling that the present Court issued just last Thursday: The ruling in Melendez-Diaz v. Massachusetts.")
150. Friedman, Initial Reaction, supra ("[T]he principal concern it [Melendez-Diaz] raises is not anything it says, or doesn't say, but that only five justices joined it, and one of those five is about to leave the Court.")
151. -129 S. Ct. 2531-32. The Court found it irrelevant that the Massachusetts legislature characterized the report as a "certificate of analysis" rather than an affidavit
152. Id. at 2532 ("The documents at issue here, while denominated by Massachusetts law "certificates," are quite plainly affidavits.")
153. Id. at 2532.
154. Id. By noting that the affidavits themselves contained notice of their purpose, the Court declined to decide whether the subjective intent of the declarant is the central inquiry for the primary purpose test. Perhaps the Court's focus on the intent of the analyst may end the debate over whose intent is relevant (the declarant or the questioner's) when assessing whether a statement is testimonial, a question created by inconsistent language in Davis.
155. See supra note 71.
156. See supra Part I.A.2 (discussing Supreme Court's recognition of significant state interests when crafting reliability doctrine articulated in Roberts).
157. Compare Transcript of Melendez-Diaz Oral Argument, supra note 19, at 19 (Roberts, C.J.) (questioning counsel for petitioner regarding potential for defense attorneys to make it appear to the jury that just because a technician does not remember a particular sample he is incompetent), and
158. id. at 17 (Breyer, J.) (questioning counsel for petitioner to propose what a "workable rule" would be since "it seems most States have worked with a rule that has allowed the defendant to call the witness if he wants"),
159. with id. at 23 (Scalia, J.) ("I am interested in the history since that's what the Court held in Crawford, that the content of the Confrontation Clause is not what we would like it to be, but what it historically was when it was enshrined in the Constitution.").
160. Id. at 24 (Scalia, J.) (asking counsel for petitioner if "business records would often or usually not be testimonial").
161. See supra note 87 (comparing Justice Scalia's questions with Chief Justice Roberts's and Justice Breyer's).
162. Transcript of Melendez-Diaz Oral Argument, supra note 19, at 23 (Scalia, J.).
163. Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2540 (2009).
164. A number of scholars have advanced a theory known as the "CSI effect"-the idea that jurors have unrealistic beliefs about the veracity and availability of forensic evidence due to the depiction of forensic science on popular television shows.
165. See supra note 11 (referring to relevant articles). Competing studies suggest that these distorted views may either help or harm defendants.
166. See supra note 11. Regardless of whether the "effect" is real, practitioners may still take it into account.
167. See National Academy Report, supra note 10, at 47-48 (describing "CSI effect" and concluding that while "the true effects of the popularization of forensic science disciplines will not be fully understood for some time, ... it is apparent that it has increased pressure and attention on the forensic science community in the use and interpretation of evidence in the courtroom").
168. See Tyler, supra note 11, at 1053 ("[A]fter the recent, well-publicized acquittal of Robert Blake, jurors complained about the lack of fingerprints, DNA, and gunshot residue-evidence not often available in criminal trials but frequently used on television.").
169. See id. at 1068-1070 (discussingjuror tendency toward overbelief in probative value of evidence); see also supra note 11 (describing importance jurors place on forensic evidence).
170. See supra note 17 (stating benefits and limitations to criminal defendants' right to cross-examine technicians).
171. See supra Part I.C.3 (arguing that states' interests are unacknowledged under Crawford testimonial analysis).
172. See Hanson & Rottman, supra note 12, at 122 (noting disparity between number of criminal cases resolved in state versus federal court).
173. See Joseph L. Peterson, Nat'l Inst, of Justice, Research in Brief, NCJ No. 107206, Use of Forensic Evidence by the Police and Courts 3 (1987), available at http://www.ncjrs. gov/pdffile s1/pr/107206.pdf (on file with the Columbia Law Review) ("Prosecutors believe that juries are quite impressed by scientific evidence....")
174. Thomas, supra note 11, at 70 (reporting a survey of 102 prosecutors where "38% believed they had at least one trial that resulted in either an acquittal or hung jury because forensic evidence was not available").
175. Joseph L. Peterson & Matthew J. Hickman, DOJ, Census of Publicly Funded Forensic Crime Laboratories, 2002, at 1 (2005), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/cpffc102.pdf (on file with the Columbia Law Review) ("A typical laboratory in 2002 started the year with a backlog of about 390 requests, received 4,900 requests, and completed 4,600 requests.").
176. Id.
177. Id. at 6.
178. Pruitt v. State, 954 So. 2d 611, 615 (Ala. Crim. App. 2006) (quoting Brown v. State, 939 So. 2d 957, 960-961 (Ala. Crim. App. 2005)).
179. Brief of Law Professors as Amici Curiae Supporting Petitioner at 7-9, Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) (No.07-591) [hereinafter Brief of Law Professors] (noting that most cases are resolved by plea bargain rather than trial and even in those cases that go to trial, defendant "impairs rather than enhances his case by insisting upon an extended and substantially uncontroverted presentation of scientific evidence on a critical element of the government's proof). Writing on behalf of the dissenters in Melendez-Diaz, Justice Kennedy rejected this argument. Instead he emphasized that [i]f the analyst cannot reach the courtroom in time to testify... a Melendez-Diaz objection grants the defense a great windfall: The analyst's work cannot come into evidence. Given the prospect of such a windfall (which may, in and of itself, secure an acquittal) few zealous advocates will pledge, prior to trial, not to raise a Melendez-Diaz objection.
180. -129 S. Ct. at 2556-2557 (Kennedy, J. dissenting).
181. Brief of the States, supra note 13, at 25. The Brief includes statistics from several states, but the most compelling is Alaska, where one crime lab is charged with processing requests from across the nation's largest state in the service of fifty-seven courts. In fiscal year 2008, twenty-two technicians performed 3, 380 tests. That same year, these technicians appeared in approximately 157 courtrooms, costing the [lab] "102 days of productive lab time." The reason is simple: Due to Alaska's geography and weather, the [lab] "spends an average of 42 hours of travel/wait time for every five hours of testimony." In other words "one hour of court testimony [costs] 8.4 hours in productive lab time."
182. Id. at 28 (emphasis omitted) (citations omitted).
183. Brief for The National District Attorneys Ass'n et al., as Amici Curiae Supporting Respondent at 15-17, Melendez-Diaz, 129 S. Ct. 2527 (No.07-591), 2008 WL 4185393. Unacknowledged by the National District Attorneys Association's amicus brief is what the Supreme Court has referred to as the "societal interest in providing a speedy trial."
184. Barker v. Wingo, 407 U.S. 514, 519 (1972) ("There is a societal interest... which exists separate from... The interests of the accused. The inability of courts to provide a prompt trial has contributed to a large backlog of cases... which,... enables defendants to negotiate more effectively for pleas of guilty to lesser offenses....").
185. Brief for The National District Attorneys Ass'n et al., supra note 105, at 15-17.
186. See Cyrus P.W. Rieck, Note, How to Deal with Laboratory Reports Under Crawford v. Washington: A Question with No Good Answer, 62 U. Miami L. Rev. 839, 872 (2008) (surveying state court cases holding that laboratory reports are nontestimonial because cross-examination would be of limited utility to defendant);
187. see also Brief for the Respondent in Opposition at 36-37, Melendez-Diaz, 129 S. Ct. 2527 (No.07-591), 2008 WL 377677 (stressing that burden on state is unwarranted especially because-at least with respect to routine laboratory tests-the technician will often "be unable to recall from actual memory information relating to the specific contents of the writing and would rely instead upon the record of his or her own action" (citation omitted)).
188. See Transcript of Melendez-Diaz Oral Argument, supra note 19, at 19, (Roberts, C.J.) (speculating as to what the interaction between a technician and defense counsel will sound like). Admittedly, to the extent that such testimony is surprising to a jury, it could still be useful to a defendant, even if it unfairly suggests some lack of diligence on the part of a technician. This argument is particularly compelling in the context of cold cases- where a long period of time has passed between the forensic analysis and an arrest- especially when the nature of the forensic test is such that the analysis cannot be repeated (i.e., an autopsy).
189. See People v. Durio, 794 N.Y.S.2d 863, 869 (Sup. Ct. 2005) (holding autopsy report is admissible under business records exception to Crawford but emphasizing "practical implications" of alternative decision);
190. see also Yanovitch, supra note 10, at 282 (discussing cold case dilemma and decision in Durio).
191. Metzger, Cheating, supra note 22, at 478-482 (noting that "[t]he vast majority of jurisdictions in the United States authorize the state to prove its forensic allegations by relying upon a forensic certificate in lieu of live testimony," but acknowledging variation between jurisdictions both in terms of which forensic tests are covered and what the process is for how certificates become admissible).
192. See, e.g., Kan. Stat. Ann. § 22-3437 (2007) (establishing N & D "plus" regime in 1996);
193. see also State v. Crow, 974 P.2d 100, 108 (Kan. 1999) (noting that N & D "plus" statute creates "separate, legislatively created exception to the hearsay rule").
194. See supra Part IA (arguing that Roberts reliability analysis permitted prosecutors to submit laboratory reports into evidence without making analyst who prepared report available for cross-examination).
195. Compare Miller v. State, 472 S.E.2d 74, 78 (Ga. 1996) (holding that laboratory report was barred because of failure to make "requisite showing" of reliability, but leaving open possibility that reliability could be established on a different set of facts),
196. with State v. Sosa, 800 P.2d 839, 843 (Wash. Ct. App. 1990) ("[A] certified copy of the lab report ... is reliable evidence under Roberts.").
197. See infra Part U.C.
198. See Giannelli, Expert Testimony, supra note 22, at 84 (describing basic N & D statute).
199. See Metzger, Cheating, supra note 22, at 481-484 (describing the "four common varieties" of N & D statutes).
200. Although Professor Metzger assesses the constitutionality of N & D statutes through a number of doctrinal lenses, this feature of certain N & D statutes is what drives Professor Metzger's strongest argument: that N & D statutes create unconstitutional mandatory presumptions.
201. See Metzger, Cheating, supra note 22, at 522-27 (arguing that N & D statutes-what Metzger refers to as "ipse dixit statute[s]"-are, in effect, "mandatory presumptions" that relieve the prosecution of its constitutionally mandated burden of proof). This Note focuses on the constitutionality of N & D statutes exclusively under the Confrontation Clause and thus does not discuss the burden- shifting implications of certain procedures.
202. This Note adopts this useful typology from Professor Metzger's article. See Metzger, Cheating, supra note 22, at 481-84. Others, including the petitioners in Melendez-Diaz, also used this characterization of the various forms of N & D statutes.
203. See Reply Brief for Petitioner at 26 n.8, Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) (No.07-591) (referring to "notice-and-demand-plus statutes");
204. Brief of Law Professors, supra note 103, at 15 n.3 (distinguishing "narrow" N & D statutes from those requiring "anything more extensive than mere objection"-those statutes which are referred to as "notice and demand-plus" (internal quotation marks omitted) (quoting Metzger, Cheating, supra note 22, at 482-83)).
205. Metzger, Cheating, supra note 22, at 481.
206. See, e.g., Jimmy Chen, Notice and Demand Statutes: A Constitutional Response to the Evidence Crisis, 8 Kan. J.L. & Pub. Pol'y 241, 241-42 (1999) (discussing policy benefits of N & D statutes without distinguishing between various forms of statutes);
207. John M. Spires, Note, Testimonial or Nontestimonial? The Admissibility of Forensic Evidence After Crawford v. Washington, 94 Ky. L.J. 187, 206 (2005) (describing basic N & D statute).
208. See Metzger, Cheating, supra note 22, at 482 (explaining that only twelve states rely on this N & D procedure). For example, in Delaware, a lab report created under certain conditions-including preparation under procedures approved by the state's Chief Medical Examiner-may serve as prima facie proof of the report's contents and the chain of custody. If, however, the defendant receives notice of the prosecutor's intent to introduce the report and objects by writing in a timely manner, the prosecution is required to call the technician who conducted the test or anyone in the chain of custody. Del. Code Ann. tit. 10, §§ 4430-4432 (2009). Michigan adopts a similar statute, but with fewer procedural requirements with which the laboratory must comply in order for the report to qualify for admission into evidence.
209. See Mich. Comp. Laws Ann. §600.2167 (West 2008).
210. See sources cited supra note 22 and accompanying text (discussing basic N & D statutes).
211. See, e.g., Del. Code Ann. tit. 10, § 4332(a)(3).
212. Compare Mich. Comp. Laws Ann. § 600.2167 (imposing no requirements that report include information regarding education or laboratory standard operating procedures), with Ohio Rev. Code Ann. § 2925.51(A) (West 2009) ("Attached to that report shall be a copy of a notarized statement by the signer of the report... giving an outline of his education, training, and experience for performing an analysis of materials included under this section."). The Delaware statute falls somewhere between these two extremes: While it limits the applicability of the N & D statutes to laboratories that meet certain criteria, it does not require that the accreditation of the individual responsible for conducting the test be included in the report that is submitted to the defendant (or the court).
213. See tit. 10, §§ 4430-4432.
214. See, e.g., Ohio Rev. Code Ann. § 2925.51(C)-(D) (providing that report shall not serve as prima facie evidence should defendant demand testimony of report's signatory, and requiring that all "report [s] issued for use under this section shall contain notice of the right of the accused to demand, and the manner in which the accused shall demand, the testimony of the person signing the report").
215. See Brief of Law Professors, supra note 103, at 13-14 (describing structure of "the typical notice-and-demand statute").
216. See, e.g., Del. Code Ann. tit. 10, § 4332(a)(1) (providing that defense must submit written demand "at least 5 days prior to the trial");
217. Ohio Rev. Code Ann. § 2925.51(C) (granting defendant seven days from day when notice is received but providing that this timeframe can be extended should trial judge decide it is in the "interests of justice").
218. See Brief of Law Professors, supra note 103, at 14 ("Upon timely demand by the defendant, live testimony is required in lieu of the certificate.").
219. This is one of the features of basic N & D statutes that distinguishes them from N & D plus statutes.
220. See Metzger, Cheating, supra note 22, at 482-483 (" 'Notice and demandplus' statutes mimic the structure of notice and demand statutes but impose substantive requirements on the defendant's demand.").
221. See Tenn. Code Ann. § 40-35-311 (c)(1) (B)-(C) (West 2009) (creating N & D plus regime in which the prosecutor must provide defendant with a copy of the report which contains information regarding the technician's qualifications and the procedures used to conduct the test).
222. See, e.g., Alaska Stat. § 12.45.084(d) (2009) ("The accused or the accused's attorney may demand the testimony of the person signing the report, by serving a written demand showing cause upon the prosecuting attorney within seven days from receipt of the report."). "Cause" is not defined. Id.
223. Id.
224. See, e.g., La. Rev. Stat. Ann. § 15:501(B)(2) (2009) ("[T]he [demand] shall contain a certification that the attorney or the defendant intends in good faith to conduct the cross-examination.").
225. See, e.g., Tenn. Code Ann. § 40-35-311 ("[T]he judge shall, upon seasonable objection and for good cause shown, require that the laboratory technician appear and testify.");
226. see also Metzger, Cheating, supra note 22, at 483 ("[N & D plus] statutes are not self-executing; a proper pleading of the requisite allegation does not, in itself, compel the prosecution to produce its witness. Instead, the trial court reviews the defense's demand to determine whether its pleading justifies an order to produce the prosecution's witness for cross-examination. ")
227. In her 2006 study, Professor Metzger found "fewer than half of the forensic ipse dixit statutes [what this Note refers to as N & D statutes] require that the prosecution give the defense formal pretrial notice of its intent to rely on the forensic report in lieu of live witness testimony."
228. Metzger, Cheating, supra note 22, at 483 n.30.
229. See, e.g., Ark. Code Ann. § 12-12-313(d)(2) (West 2009) (providing only that defendant must give "notice" should he want the technician to testify)
230. Kan. Stat. Ann. § 22-2902a (2009) (providing that "the findings of the forensic examiner shall be admissible into evidence... with the same force and effect as if the forensic examiner who performed such examination... had testified in person" but failing to condition this provision on any requirements of notice to the defendant);
231. see also State v. Caulfield, 722 N.W.2d 304, 313 (Minn. 2006) (holding section 634.15 of Minnesota Statutes unconstitutional because it did not provide defendant with notice regarding both the report itself and the consequences of failure to demand the presence of the technician at trial);
232. Richard D. Friedman, Lab Reports and a Notice-and-Demand Statute-A Significant Decision from Minnesota, The Confrontation Blog, at http://confrontationright.blogspot. com/2006-10-01-archive.html (Oct. 6, 2006) (on file with the Columbia Law Review) [hereinafter Friedman, Notice and Demand] ("The only notice for which [the Minnesota Statute] provides, so far as I can see, is notice of the demand by the defendant that the preparer testify.").
233. See, e.g., Ark. Code Ann. § 12-12-313(d)(2) (requiring the defendant to "give at least ten (10) days' notice prior to the proceedings that he or she requests the presence of the analyst of the laboratory ... for the purpose of cross-examination")
234. Me. Rev. Stat. Ann. tit. 29-A, § 2431(2) (D) (1996) (requiring "10 days written notice to the prosecution" for the defendant to have access to a witness). Of course, the lack of notice may be mitigated to a certain extent by the availability of discovery procedures.
235. See Metzger, Cheating, supra note 22, at 483-84 & n.32 (noting use of discovery to prevent "trial by ambush").
236. See, e.g., Me. Rev. Stat. Ann. tit. 29-A, §2431 (2) (D) (requiring defendant to include in his demand topics on which he plans to cross-examine the witness);
237. see also Metzger, Cheating, supra note 22, at 484.
238. See Metzger, Cheating, supra note 22, at 484 (defining "defense subpoena" procedures). For additional discussion of the practical and legal differences between a subpoena requirement and a "demand" procedure,
239. see infra Part IILC.l.b.i.
240. Metzger, Cheating, supra note 22, at 484. Critically, then, defense subpoena statutes require defendants to put on a case-in-chief.
241. Id.
242. Thus, as Professor Metzger argues, "to exercise his confrontation rights, the defendant must relinquish his right to rely on the government's failure of proof and exercise instead, his right to compulsory process."
243. Id.
244. This consequence of defense subpoena statutes is central to Professor Metzger's argument that these statutes are unconstitutional under the Fourteenth Amendment Due Process Clause because they impermissibly shift the burden of proof from the prosecution to the defendant.
245. Id. at 524-525
246. For the proposition that "most" of the defense subpoena statutes include a substantive reason requirement,
247. see id. at 484.
248. For an example of one such statute, see Ala. Code §12-21-302 (LexisNexis 2005) (providing that in addition to requiring good faith, the court will only grant defendant's subpoena request for "good cause," which "shall not include a challenge to the findings contained in the certificate of analysis, unless the requesting party first establishes a legitimate basis for the challenge").
249. See supra Part I.B.I.
250. Others have observed that there is no federal precedent assessing procedural requirements for the exercise of the confrontation right. See State v. Smith, No. 1-05-39, 2006 WL 846342, at *5 (Ohio App. Apr. 3, 2006) (noting that "nothing in Crawford or in the text of the Sixth Amendment requires that the right of confrontation must occur at trial," but citing only Crawford and state court precedent in support of this conclusion);
251. Deener v. Quarterman, No. 3-08-CV-0713-K, 2008 WL 4791473, at *3 (N.D. Tex. Oct. 30, 2008) ("Not only has the Supreme Court not addressed this issue, but the court is unaware of any federal decision holding that a confrontation clause violation cannot be forfeited by failing to comply with state procedural rules.").
252. Professor George E. Dix has distinguished waiver of a right from the loss of a right due to a defendant's failure to fulfill certain procedural requirements. According to Professor Dix, there are three relevant questions: (1) Is a procedural right "available in the situation presented"? (2) Has the defendant "utilized the appropriate means of implementing a right"? And, (3) what "effect . . . [should] be given [to] evidence that at the time of infringement of the interests protected by a right a defendant experienced or articulated a conscious willingness to forgo exercise of the right?"
253. George E. Dix, Waiver in Criminal Procedure: A Brief for More Careful Analysis, 55 Tex. L. Rev. 193, 196 (1977).
254. Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2541 & n.12 (2009). The statutes that the majority considered to be N & D statutes in their "simplest form," are essentially what this Note refers to as basic N & D statutesthose statutes which "require the prosecution to provide notice to the defendant of its intent to use an analyst's report as evidence at trial" and provide "the defendant ... a period of time in which he may object to the admission of the evidence absent the analyst's appearance live at trial."
255. Id. at 2541.
256. In support of its conclusions, the Court cited two cases affirming the constitutional validity of state procedures designed to implement the Compulsory Process Clause and a third case upholding a state procedure controlling when a defendant must raise a motion to suppress evidence based on a Miranda violation.
257. Id.
258. -(citing Taylor v. Illinois, 484 U.S. 400, 411 (1988) (Compulsory Process Clause), Wainwright v. Sykes, 433 U.S. 72, 86-87
259. -(1977) (Miranda objection), and Williams v. Florida, 399 U.S. 78, 81-82 (1970) (Compulsory Process Clause)). Significantly, both the Court and this Note's analysis are predicated on courts making a distinction between substance and procedure. As this Note argues infra, the line between these two "types" of law is often unclear and there must be a role for courts in policing the constitutionality of procedural rules in order for the substantive right defined by Crawford to have real meaning.
260. See infra Part III.A.3. Nevertheless, this Note is consistent with the Melendez-Diaz majority's suggested doctrinal distinction between the substance of the Confrontation Clause and the procedures governing its use, largely due to the pragmatic concern that absent such a distinction, the Court's recently articulated understanding of the Confrontation Clause must be abandoned as impracticable.
261. See supra Part IIA.
262. Melendez-Diaz, 129 S. Ct. at 2541 n.12 (internal citation omitted).
263. Id. at 2530 ("The question presented is whether th[e] affidavits are 'testimonial,' rendering the affiants 'witnesses' subject to the defendant's right of confrontation under the Sixth Amendment.").
264. Id. at 2557 (Kennedy, J. dissenting).
265. The only federal case is Deener, 2008 WL 4791473. For the state decisions upholding N & D statutes,
266. see Hinojos-Mendoza v. People, 169 P.3d 662, 668-69 (Colo. 2007);
267. State v. Cunningham, 903 So. 2d 1110, 1121-22 (La. 2005);
268. City of Las Vegas v. Walsh, 124 P.3d 203, 208 (Nev. 2005);
269. State v. Campbell 719 N.W.2d 374, 378 (N.D. 2006);
270. Brooks v. Commonwealth, 638 S.E.2d 131, 135 (Va. Ct. App. 2006);
271. cf. State v. Kent, 918 A.2d 626, 628, 643-45 (N.J. Super. Ct. App. Div. 2007) (finding "blood test certificate" to be testimonial and calling on legislature or the "appropriate rule-making bodies of the judiciary" to enact a basic N & D statute to mitigate the practical consequences of the Court's holding);
272. State v. Christy, No. 25520-4-III, 2008 WL 2623968, at *5 (Wash. Ct. App. July 3, 2008) (avoiding decision on constitutionality of N & D statutes by emphasizing that "any error was harmless," but upholding trial court's admission of evidence under the statute). For the state decisions finding N & D statutes to be unconstitutional,
273. see State v. Laturner, 163 P.3d 367, 377 (Kan. Ct. App. 2007);
274. State v. Caulfield, 722 N.W.2d 304, 312-13 (Minn. 2006);
275. Smith, 2006 WL 846342, at *7; State v. Birchfield, 157 P.3d 216, 219-20 (Or. 2007). Finally, for further discussion of Supreme Court decisions upholding state created procedures governing the exercise of constitutionally protected rights other than the Confrontation Clause,
276. see infra Part U.C.3.
277. To overcome these differences, this Note proposes a constitutional ceiling with explicit guidelines.
278. See infra Part III.C.
279. See supra note 145 (listing one federal case and several state cases upholding constitutionality of N & D statutes).
280. See e.g., Deener, 2008 WL 4791473, at *3 (referring to N & D statute as "procedural rules"); Hinojos-Mendoza, 169 P.3d at 669-70 (analogizing defense subpoena statute to other permitted procedural requirements imposed by Colorado law for exercising other constitutionally protected rights);
281. Cunningham, 903 So. 2d at 1115, 1119 (referring to defense subpoena statute as establishing procedure, and burden on defendant as "small procedural step");
282. Brooks, 638 S.E.2d at 136-137 (referring to AD statute as creating reasonable procedure).
283. See supra note 148.
284. -719 N.W.2d at 374.
285. Id. at 378 (emphasis added).
286. -638 S.E.2d at 131.
287. Id. at 136. The court in Brooks mischaracterizes the N & D statute as providing for a waiver of a constitutional right rather than assessing the statute as changing the mechanism through which the defendant can invoke the right.
288. See id. (holding defendant's "failure to follow th[e] procedure" in the state's N & D statute "amounts to a waiver of the right to confront witnesses");
289. see also Dix, supra note 140, at 193 (proposing narrow definition of waiver).
290. For cases upholding N & D statutes,
291. see supra note 145.
292. See, e.g., State v. Cunningham, 903 So. 2d 1110, 1120-1122 (La. 2005) (upholding defense subpoena procedure and stressing minimal burden on defendant but relying, in part, on other state court decisions upholding basic N & D statutes).
293. Id. at 1122.
294. -124 P.3d 203, 208-209 (Nev. 2005)
295. Id.
296. Id.
297. See, e.g., Cunningham, 903 So. 2d at 1115-16 ("In enacting the above statutes, the legislature sought to establish a procedure to relieve the party desiring to introduce a certificate of the burden of having to produce the person who performed the tests on the evidence.");
298. State v. Kent, 918 A.2d 626, 642 (N.J. Super. Ct. App. Div. 2007) (noting practical considerations including "need to divert" hospital workers and laboratory technicians from their regular work, and distance between courts). Although it is a preCrawford decision, State v. Crow contains similar arguments. See 974 P.2d 100, 106 (Kan. 1999) ("[F]orensic experts testified in only 8% of cases where they were subpoenaed.")
299. ; see also Thomas F. Burke, The Test Results Said What? The Post-Crawford Admissibility of Hearsay Forensic Evidence, 53 S.D. L. Rev. 1, 29 (2008) (discussing Kent decision and noting that New Jersey court gave "voice to the sentiment underlying many of the . . . opinions [holding statutes to be constitutional]").
300. -918 A2d at 642.
301. Id. at 628.
302. Id. at 642.
303. Id. at 643-644
304. Id. The court called on the legislature to execute this proposal.
305. Id. at 644-45.
306. The Nevada Supreme Court made a similar point in City of Las Vegas v. Walsh, emphasizing that in the absence of some showing that cross-examination will help the defendant, the exercise is likely to be meaningless and thus, the statute promotes "judicial economy." 124 P.3d 203, 208-209 (Nev. 2005).
307. Compare State v. Cunningham, 903 So. 2d 1110, 1127 (La. 2005) (Johnson, J., dissenting) (emphasizing unreasonableness of requiring indigent defendants to subpoena witnesses to exercise their confrontation right), with State v. Caulfield, 722 N.W.2d 304, 313 (Minn. 2006) (concluding that lack of notice provision prevented defendant from "knowingly, intelligently, and voluntarily" waiving his confrontation right).
308. -903 So. 2d at 1126 (Calogero, CJ., dissenting);
309. id. at 1127 (Johnson, J., dissenting). 168.
310. Id. at 1124 (Calogero, C.J., dissenting).
311. -722 N.W.2d at 313.
312. Id.
313. Crawford v. Washington, 541 U.S. 36, 62 (2004);
314. see supra Part I.B.I.
315. Crawford, 541 U.S. at 61-62.
316. This argument was articulated most clearly in State v. Laturner, 163 P.3d 367, 374 (Kan. Ct. App. 2007) ("Both [Davis] and Crawford prohibit the district court from acting as a gatekeeper .... [I]t is inconsistent with a criminal defendant's right of confrontation to admit testimonial evidence based on its reliability . . . ."), but it was also made in Caulfield, 722 N.W.2d at 312 ("Crawford removed the flexibility courts had to balance the state's interests, however legitimate, against the need for prior crossexamination and unavailability of the witness before testimonial evidence
317. -163 P.3d at 376.
318. See Kan. Stat. Ann. §22-3437(3) (Supp. 2008) ("A [report] shall be admitted in evidence unless it appears from the notice of objection . . . that the conclusions of the [report], including the composition, quality or quantity of the substance submitted to the laboratory for analysis . . . will be contested at trial.").
319. Laturner, 163 P.3d at 377.
320. Id.
321. -129 S. Ct. 2527, 2541 & n.12 (2009);
322. see also supra notes 141-144.
323. -129 S. Ct. at 2541 (citing Taylor v. Illinois, 484 U.S. 400, 411 (1988), Wainwright v. Sykes, 433 U.S. 72, 86-87 (1977), and Williams v. Florida, 399 U.S. 78, 81-82 (1970)).
324. -484 U.S. at 416.
325. Id. at 413.
326. Id.
327. Id.
328. Id. at 414-415
329. -399 U.S. 78, 79 (1970).
330. Id. at 79-80.
331. Id. at 81.
332. Id. at 85.
333. Id. at 84.
334. David A. Strauss, The Ubiquity of Prophylactic Rules, 55 U. Chi. L. Rev. 190, 207 (1988) [hereinafter Strauss, Prophylactic Rules].
335. Id. at 200. In constitutional law, "[p]rophylactic rules are, in an important sense, the norm, not the exception."
336. Id. at 195.
337. See id. at 194 ("Judges do not have a general authority to implement their visions of the best world, unless, of course, those visions are validated by the Constitution. But judges do, necessarily, consider institutional concerns when they apply the Constitution in specific cases.").
338. -384 U.S. 436, 444 (1966) ("Prior to any question, the person must be warned that he has the right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.");
339. see also Dickerson v. United States, 530 U.S. 428, 432 (2000) ("Miranda and its progeny in this Court govern the admissibility of statements made during custodial interrogation in both federal and state courts.").
340. Strauss, Prophylactic Rules, supra note 190, at 195-196
341. Id. at 194.
342. Id. at 193-194
343. This is, in essence, a basic N & D statute. See supra Part IIB.1. 198. Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2541 (2009) ("The defendant always has the burden of raising his Confrontation Clause objection; notice-and-demand statutes simply govern the rim within which he must do so.").
344. See supra notes 190-192 and accompanying text.
345. See Miranda v. Arizona, 384 U.S. 436, 445-449 (1966) (noting that "[t]he difficulty in depicting what transpires at such interrogations stems from the fact that in this country they have largely taken place incommunicado" and also indicating profound concerns about law enforcement officers' tendency to use psychologically and physically coercive tactics). An alternative example offered by Strauss is the challenge facing courts deciding whether a particular statute was passed with a racially discriminatory intent. Strauss, Prophylactic Rules,
346. supra note 190, at 204.
347. See State v. Cunningham, 903 So. 2d 1110, 1127 (Johnson, J., dissenting) (expressing concern regarding effect of defense subpoena statute on indigent defendants);
348. see also supra Part U.C.2. For a discussion of consequences of using the confrontation right as a bargaining chip, see Transcript of Melendez-Diaz Oral Argument, supra note 19, at 21 (Breyer, J.);
349. Metzger, Blog Post, supra note 17.
350. See supra Part ILB. The content of what this rule might look like will be taken up infra Part III.C.
351. This possibility is discussed supra Part II. U.C.3.
352. This could also be characterized as a "constitutional floor"the minimum amount of process a state must provide to avoid depriving defendants of their right to confrontation. A "ceiling," however, seems to be more appropriate in this context as the state is increasing the burden on the defendant rather than giving him something he did not have before.
353. See supra notes 139-140 and accompanying text (noting that Supreme Court has not decided what procedures can be constitutionally imposed on defendant who wishes to assert his confrontation right).
354. See supra notes 109-112 and accompanying text (arguing that N & D statutes took on increased importance after Crawford because prior to Crawford defendants often did not have a right to confront analysts).
355. The Supreme Court recently granted certiorari on a petition filed by Professor Friedman on behalf of two defendants charged with drug-related offenses. See Briscoe Petition, supra note 27;
356. see also Richard D. Friedman, Crawford, Dams, and Way Beyond, 15 J.L. & Pol'y 553, 572 (2007) (identifying constitutionality of N & D statutes as one of the "important and controversial [issues that] will need to be resolved in coming years").
357. Cf. State v. Smith, No. 1-05-39, 2006 WL 846342, at *5 (Ohio Ct. App. Apr. 3, 2006) (noting that although we typically think of the right to confrontation arising at trial, the Sixth Amendment "merely states that the defendant has the right to confrontation during the course of the prosecution").
358. When assessing the burden on the compulsory process right created by discovery rules, the Supreme Court noted that "[t]he State's interest in the orderly conduct of a criminal trial is sufficient to justify the imposition and enforcement of firm, though not always inflexible, rules relating to the identification and presentation of evidence." Taylor v. Illinois, 484 U.S. 400, 411 (1988) (upholding state rule barring defendant from calling witnesses who were not identified to state during discovery).
359. This is the basic states as laboratories for experimentation argument. See, e.g., New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) ("It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory -").
360. Compare Fleming James, Jr. et al., Civil Procedure 1-4 (5th ed. 2001) (explaining distinction between "substance" and "procedure") , with
361. William H. Simon, The Ideology of Advocacy: Procedural Justice and Professional Ethics, 1978 Wis. L. Rev. 29, 119 (exploring value judgments bound up in debates over procedure).
362. See Metzger, Cheating, supra note 22, at 528 ("[N & D statutes] illustrate a fundamental legislative assumption of system failure. Lawmakers assume that the criminal justice system minimizes costs and maximizes efficiency when defense counsel must initiate adversary procedures by filing labor and fact-intensive claims of entitlement."). The centrality of the notion of an opportunity to cross-examine to the Crawford decision cannot be overstatedthroughout the opinion the Court repeatedly states that short of the opportunity to cross-examine a witness at trial, the confrontation right is only satisfied by a prior opportunity to cross-examine.
363. See, e.g., Crawford v. Washington, 541 U.S. 36, 54 (2004) (holding that admissibility of absent witness's examination was conditioned on "unavailability and a prior opportunity to cross-examine").
364. The argument that the core of the Confrontation Clause right is this "opportunity" is further substantiated by the relatively low standards that the Court has created for assessing whether the confrontation itself is anything more than superficial, i.e., if the witness is available for cross-examination but claims lack of memory, the requirement is likely to be satisfied.
365. See supra note 57 (discussing Crawford's acceptance of California v. Green precedent, holding that as long as witness "appears," confrontation right is satisfied).
366. Per the Supremacy Clause, state laws that violate the U.S. Constitution cannot be upheld. See U.S. Const, art. VI, cl. 2. In Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803), the Supreme Court asserted its authority to decide whether statutes comport with the Court's interpretation of the Constitution.
367. The Compulsory Process Clause, independent of the Confrontation Clause, protects a defendant's right to call witnesses to testify. U.S. Const, amend. VI ("In all criminal prosecutions, the accused shall enjoy the right... to have compulsory process for obtaining witnesses in his favor . . . ."). Several scholars have argued that the Confrontation Clause should be interpreted to preserve a right that is distinct from the interest guarded by the Compulsory Process Clause. See Amar, First Principles, supra note 36, at 689 (discussing distinct but overlapping functions of Compulsory Process Clause and Confrontation Clause);
368. Richard D. Friedman, Crawford and Dams: A Personal Reflection, 19 Regent U. L. Rev. 303, 311 (2007) (arguing that defense subpoena statutes are impermissible under the Confrontation Clause because they do not "do anything more than the Compulsory Process Clause"). Notably, some N & D statutes "add" to the right protected by the Compulsory Process Clause by providing defendants with further benefits, such as the right to call the analyst to testify during the prosecution's case-in-chief. See supra Part II.B.4 (discussing defense subpoena statutes).
369. See supra notes 171-177 and accompanying text.
370. Henry P. Monaghan, The Supreme Court 1974 Term-Foreword: Constitutional Common Law, 89 Harv. L. Rev. 1, 19 (1975).
371. See generally Cass R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court, at ix-x (1999) (encouraging courts to "avoid [ ] clear rules and final resolutions" thereby allowing them to be "[a]lert to the problem of unanticipated consequences" and to "promote the democratic ideals of participation, deliberation, and responsiveness"). Traditionally, criminal procedure has been a field of constitutional law in which courts have exercised substantial discretion. Fisher, Categorical Requirements, supra note 2, at 1502-1504 (discussing proliferation of balancing tests in realm of constitutional criminal procedure). Some have argued that this is the approach that the Court has taken in defining the meaning of testimonial.
372. But see Edward J. Imwinkelried, The Treatment of Prosecution Hearsay Under Crawford v. Washington: Some Good News, But.....Champion, Sept./Oct. 2004, at 16, 18 (encouraging courts to adopt ad hoc approach towards applying then-new testimonial framework).
373. Sunstein, supra note 218, at 209. Thus, Sunstein is a supporter of the holding in Miranda. Id. at 30; see also Fisher, Categorical Requirements, supra note 2, at 1519 (discussing benefits of bright line rules in criminal procedure).
374. Fisher, Categorical Requirements, supra note 2, at 1519 & n.153
375. -(stating that nineteen of twenty-seven constitutional cases before the Supreme Court in 2003 term arose from criminal cases-including habeas corpus petitions (citing The Supreme Court, 2003 Term-The Statistics, 118 Harv. L. Rev. 497, 509 (2004))).
376. Id. at 1519.
377. Crawford v. Washington, 541 U.S. 36, 68 n.10 (2004) ("[T]he Roberts test is inherently, and therefore permanently, unpredictable.");
378. see also Fisher, Categorical Requirements, supra note 2, at 1520 (noting role of "unpredictability" in Court's holding in Crawford).
379. See supra Part II.C.1 (discussing cases upholding N & D statutes).
380. For a discussion of the focus on practical concerns, see supra notes 160-165 and accompanying text.
381. This argument is made in state court decisions assessing the constitutionality of N & D statutes. See State v. Kent, 918 A.2d 626, 643 (N.J. Super. Ct. App. Div. 2007) (suggesting that in some situations, decisions to invoke right to confront laboratory technician could be mere "adversarial gamesmanship");
382. supra Part II.C1. A similar argument has been made by courts holding laboratory reports to be nontestimonial. See Napier v. State, 820 N.E.2d 144, 149 (Ind. Ct. App. 2005) (classifying test as nontestimonial because it was unclear how admission of test would "preclude any meaningful crossexamination");
383. State v. O'Maley, 932 A.2d 1, 13 (N.H. 2007) (holding report to be nontestimonial because cross-examination would not be helpful). Of course, this line of reasoning is explicitly barred by Crawford. See supra Part I.B.I.
384. Rochin v. California, 342 U.S. 165, 177 (1952) (Black, J., concurring) ("[T]he accordion-like qualities [of the majority's balancing test] must inevitably imperil all the individual liberty safeguards specifically enumerated in the Bill of Rights.").
385. See supra Part II.A (identifying state interests at stake) and U.C.3 (considering legitimacy of prophylactic rules).
386. See supra Part IIIA-B.
387. One of the most discussed constitutional ceilings imposed by the Supreme Court is in the area of punitive damages for tort liability. Cf. John CP. Goldberg, The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs, 115YaIe LJ. 524, 589-590 (2005) (discussing "revival" of "nineteenth-century idea of a due process ceiling on states' ability to impose liability on an actor under the guise of providing redress").
388. For a discussion of the value of predictability in the criminal procedure context, see supra Part III.B. In its punitive damage jurisprudence, the Supreme Court has "refused to adopt a mechanical test or bright-line formula, instead setting 'guideposts' that reference the nature of the defendant's wrong and the way in which states have regulated similar misconduct." Goldberg, supra note 229, at 590. The rule this Note proposes is more rigid.
389. An interesting question that is outside the scope of this Note is whether notice should be directed to defendant or defense counsel.
390. These requirements are similar to those proposed by the Minnesota Supreme Court in State v. Caulfield, 722 N.W.2d 304, 313 (Minn. 2006) (discussing need for "knowing, intelligent, and voluntary waiver" of the confrontation right).
391. Because the testimony of the technician is likely to harm the defendant, it is reasonable to assume that in most cases the attendance of the analyst is at the prosecution's behest. Cf. Brief of Law Professors, supra note 103, at 8-9 ("[A] defendant impairs rather than enhances his case by insisting upon an . . . uncontroverted presentation of scientific evidence on a critical element of the government's proof .... Experienced defense counsel do not insist on the live presentation unless there is some reason to believe the evidence is susceptible to challenge.").
392. A full analysis of the problems with this alternative is beyond the scope of this Note but it is important to note that the power of the defendant during discovery is limited. See Giannelli, Expert Testimony, supra note 22, at 61-62, 66-68.
393. See State v. Smith, No. 1-05-39, 2006 WL 846342, at 7 (Ohio Ct. App. Apr. 3, 2006) (holding "notice" that did not adequately inform defendant about prosecution's intent to introduce report without live testimony imposed too great a burden on defendant).
394. The situation in which a disparity in cost could lead to the use of the confrontation right as bargaining chip is discussed supra notes 17, 19, 201, and accompanying text.
395. See Caulfield, 722 N.W.2d at 313 (laying out various elements of adequate notice). Professor Paul Giannelli has actually advocated the use of N & D statutes as a mechanism to guard against laboratory misconduct. According to Giannelli, "[i]f pretrial discovery is sufficient to permit the defense to make an informed judgment, then the failure to demand the examiner's presence . . . ease[s] the government's 'burden' while at the same time protecting] defendants' right of confrontation." Giannelli, Expert Testimony, supra note 22, at 84.
396. Cf. Giannelli, Expert Testimony, supra note 22, at 51 (arguing that requiring laboratories to provide documentation in support of their work should not be overly burdensome, since most of the relevant information should be recorded by analysts as a matter of standard operating procedure).
397. For a discussion of the variety of notice requirements, see supra Part ILB (discussing varying notice requirements in basic N & D statutes and lack of notice requirement for other types of N & D statutes).
398. See supra note 233.
399. Friedman, Notice and Demand, supra note 133.
400. Prophylactic in the sense that it provides more protection than is necessary to protect the underlying constitutional principle. See supra notes 190-196 and accompanying text (discussing views on prophylactic measures).
401. This is essentially the procedure the court called for in State v. Kent, 918 A.2d 626, 643-44 (N.J. Super. Ct. App. 2007) ("[W]e deem it appropriate prospectively to require, as a condition of our treatment of lab reports and blood sample certificates as 'testimonial' documents, that defense counsel provide reasonable advance notice to prosecutors that they wish to cross-examine the authors of those documents at trial.").
402. For an analysis of the Court's power to prescribe prophylactic rules based on institutional competence concerns, see supra Part U.C.3.
403. See infra Part IIIC.1.b.i (distinguishing simple demand provisions from subpoenas).
404. See supra notes 171-177 and accompanying text (discussing decisions striking down N & D statutes requiring defendants to justify demand to exercise confrontation right).
405. Id.
406. In a case assessing the constitutionality of a defense subpoena statute under the Oregon Constitution, the Supreme Court of Oregon emphasized that a subpoena requirement cannot be equated with a "requirement that [the] defendant notify the state that the defendant will insist on the right to cross-examine the state's witness. . .." State v. Birchfield, 157 P.3d 216, 219 (Or. 2007). According to the court, a subpoena overly burdens the defendant by forcing him to "secure the attendance of [a] witness . . . [when] [i]t is the state that seeks to adduce the evidence as to which the criminalist will testify." Id. at 220.
407. -484 U.S. 400, 410 n.14 (1988) (internal quotation marks omitted) (quoting Peter Westen, The Compulsory Process Clause, 73 Mich. L. Rev. 71, 74 (1974)).
408. This point has been made by Professors Gianelli and Friedman, who also believe that at least some N & D statutes are constitutional. See, e.g., Giannelli, Admissibility of Lab Reports, supra note 10, at 32 ("[T]he Confrontation Clause is self-executing; the accused cannot be required to invoke it."); Friedman, Notice and Demand, supra note 133 (distinguishing between "justifiable" provisions requiring early assertion and others that force defendant to subpoena witnesses).
409. Taylor, 484 U.S. at 410 n.14.
410. For example, while Miranda requires the interrogating police officers to inform the defendant of his right to counsel, the defendant may choose not to invoke that right. Miranda v. Arizona, 384 U.S. 436, 444-445 (1966).
411. See Briscoe Petition, supra note 27, at 11-12 (stressing both legal and practical consequences of requiring defendants to subpoena witnesses against them).
412. Crawford v. Washington, 541 U.S. 36, 68 (2004) ("Where testimonial evidence is at issue . . . The Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.").
413. State v. Birchfield, 157 P.3d 216, 220 (Or. 2007); see also Briscoe Petition, supra note 27, at 20-21 (arguing that, in practice, states with "defense subpoena[ ]" N & D statutes undermine much of the value of the right to confrontation and that any incremental saving to the state comes at too great a price to defendants).
414. See supra note 201 and accompanying text (discussing how differently situated defendants will experience the burden imposed by a given procedure to a varying degree).
415. Even overworked public defenders should have little difficulty sending a simple form letter if they think cross-examination will be useful. Since the vast majority of criminal cases do not proceed to trial, this issue will rarely come up. See Brief of Law Professors, supra note 103, at 7 ("Live forensic testimony is likely to be unnecessary in most cases, because very few criminal prosecutions actually proceed to trial.").
416. See State v. Cunningham, 903 So. 2d 1110, 1127 (La. 2005) (Johnson, J., dissenting) (focusing on unreasonableness of requiring indigent defendants to subpoena witnesses).
417. See id. (describing subpoena requirement as "impossible burden" for many indigent defendants).
418. This would create the same issue regarding reliability discussed in the context of N & D plus and defense subpoena statutes. See supra notes 171-177, 246-247, and accompanying text.
419. This is analogous to the type of inquiry Justice Stevens proposed in Taylor v. Illinois, 484 U.S. 400, 415 (1988) (holding when determining if forfeiture of right to call witness is an appropriate remedy for failure to comply with discovery disclosure rules, " [a] trial judge [may] insist on an explanation for a party's failure to comply ... in advance of trial").
420. At the time of writing, there appear to be no N & D statutes that provide for any penalty other than forfeiture. The majority in Taylor upheld a state court decision finding that defendant forfeited his right to compulsory process due to his failure to disclose the identity of a witness during discovery. Justice Brennan authored a dissent suggesting that states should use alternative sanctions. Taylor, 484 U.S. at 425 (Brennan, J., dissenting).