"But the Constitution guarantees one way: confrontation. We do not have license to suspend the Confrontation Clause when a preferable trial strategy is available." Melendez-Diaz v. Massachusetts.
Back in 2001, Boston police received a tip that, Thomas Wright, a Kmart employee was "engaged in suspicious activity" and set up surveillance in the Kmart parking lot. They saw Mr. Wright get into a car and waited until he returned. Upon exiting the car, the police arrested Mr. Wright and the two men in the car, one of whom was Luis Melendez-Diaz, after recovering four bags of what appeared to be cocaine from Mr. Wright.
At trial the state introduced the bags recovered from Mr. Wright and from the car along with "certificates of analysis" from forensic analysts. Mr. Melendez-Diaz objected on the grounds that he was not afforded his Sixth Amendment right to confront the witnesses against him because it was impossible to cross-examine a piece of paper. The court overruled his objection and Mr. Melendez-Diaz was convicted on drug charges. The state Court of Appeals upheld the trial court's ruling.
The Supreme Court, on the other hand, held that the certificates at issue were testimonial in nature and therefore subject to the dictates of its decision in Crawford v. Washington. The Court pointed out that the sole purpose of the affidavits under Massachusetts law was to provide "prima facie evidence of the composition, quantity and net weight" of the substance in question.
“To be sure, the Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. . . . Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.” Crawford v. Washington, 541 US 36, 61-62 (2004).
The practical effect of the Melendez-Diaz decision is that a citizen's right to confrontation is denied when the state is allowed to introduce any evidence that is "testimonial" in nature without affording the defendant the opportunity to cross-examine the testifying party. It would seem that the state's ability to introduce evidence at trial in the form of a business records affidavit has been greatly reduced.
“Various formulations of this core class of testimonial statements exist: ex parte in-court testimony orits functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonablyexpect to be used prosecutorially; extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would beavailable for use at a later trial.” - Crawford v. Washington, 541 US 36 (2004).
The fight to determine what is "testimonial" may have just begun.