The test results said what? The post-Crawford admissibility of hearsay forensic evidence.

Author:Burke, Thomas F., III

This Article outlines the current questions surrounding the admissibility of hearsay forensic results (including lab reports, autopsies, and certifications), and thoroughly documents the extensive development of quarreling factions among state and federal courts of last resort in answering these questions. Further, the Article considers the constitutionality and desirability of state notice-and-demand statutes, which work to obtain a waiver of the defendant's Confrontation Clause rights where the methodology and substantive accuracy of the forensic report's contents are not in dispute. The Article proposes a two-part comprehensive resolution that respects both defendants' constitutional rights and the practical constraints on the State's ability to regularly present its experts for cross-examination. Simply put, this solution would recognize the majority of forensic hearsay documents as testimonial (and thus trigger defendants' Confrontation rights), but would temper the practical consequences through waiver statutes, carefully constructed to avoid unduly burdening defendants' exercise of their constitutional rights.


    The traditional paradigm of evidence law has long struggled to accommodate the State's use of hearsay evidence while recognizing the extent to which any such concession may undercut rights stemming from the Confrontation Clause of the Sixth Amendment. Under the ambit of both federal and state law, prosecutors have routinely succeeded in admitting a wide range of hearsay forensic evidence, including the results of blood tests, compound analyses, and autopsies, all without ever calling to the stand the doctors or lab technicians who conducted those tests. The Supreme Court's recent decision in Crawford v. Washington, (1) holding that the admission of "testimonial" hearsay evidence violates the Confrontation Clause, dramatically upset that evidentiary landscape. Varying interpretations of "testimonial" by courts have led to an unacceptable incongruity in the administration of federal constitutional law: In some states, prosecutors may admit the aforementioned test results in the declarant's absence; in others, defendants have gained a forceful weapon with which to challenge the State's evidence.

    Part II of this article recites the pre-Crawford framework for admission of hearsay forensic results, details the Crawford decision and the impetus behind it, and examines the Court's sole post-Crawford disquisition on the meaning of "testimonial."

    Part III outlines the current questions surrounding the admissibility of varied hearsay forensic results. Such points of dispute include the relevance of the declarant's knowledge that test results might or will be used in a future criminal prosecution; the applicability of the business records and public records hearsay exceptions; the role of public policy and "trustworthiness" of forensic test results in these debates; and ultimately, the differences in "testimonial" quality, if any, of such varied forensic tests as lab reports, autopsy reports, and Breathalyzer certifications. Also, this part documents the development of quarreling factions among state and federal courts of last resort, as well as among legal scholars, in answering these questions.

    Part IV considers the constitutionality and desirability of state notice-and-demand statutes, which generally work to obtain a waiver (phrased more aggressively, forfeiture) of defendants' Confrontation Clause rights in cases where the methodology and substantive accuracy of the forensic report's contents, as well as the credibility of the absent expert, are not in apparent dispute.

    Finally, Part V proposes a two-part comprehensive solution that respects both defendants' constitutional rights and the practical constraints on the State's ability to regularly present its experts for cross-examination.


      1. THE PRE-CRAWFORD HEARSAY FRAMEWORK Legal scholars have long debated the interplay between the "evidentiary hearsay rule" (2) and the Sixth Amendment's Confrontation Clause, (3) with most recognizing not only that the two share an underlying concern about the reliability of out-of-court statements, but also that the former is informed and mandated at least to some extent by the latter. (4) The Supreme Court, in Ohio v. Roberts, (5) solidified over a century of hearsay jurisprudence by recognizing that "[i]f one were to read [the Sixth Amendment's] language literally, it would require, on objection, the exclusion of any statement made by a declarant not present at trial.... But, if thus applied, the Clause would abrogate virtually every hearsay exception, a result long rejected as unintended and too extreme." (6) Justice Blackmun, writing for the Court, thus announced that when the declarant of an out-of-court statement offered for the truth of the matter asserted is unavailable, "his statement is admissible only if it bears adequate 'indicia of reliability.'" (7) Such indicia can be found "where the evidence falls within a firmly rooted hearsay exception" or where the movin party has made" (8) showing of particularized guarantees of trustworthiness." The rule of Roberts, obviously allowing for considerable latitude in formal exposition by the States and nuanced application by judges, served for twenty years as the keystone of a hearsay regime characterized less by the rule itself than by the rule's myriad exceptions. (9)

        The admissibility of hearsay forensic reports under Roberts remained an open question, particularly in federal court, because it was unclear whether Congress, in adopting the Federal Rules of Evidence in 1975, had intended for forensic reports to be admissible under either the "public records" or "business records" exceptions (which had historically accommodated the admission of hearsay lab reports at common law). (10) Indeed, these questions generated a striking amount of conflict among state and federal courts. (11) I eschew an analysis of the complex and now-obsolete pre-Crawford case law in favor of a detailed examination of the ongoing post-Crawford developments.


        In the seminal 2004 case of Crawford v. Washington, the Supreme Court reconsidered the relationship between the Confrontation Clause and the hearsay rule, ultimately deciding in a history-laden opinion by Justice Scalia that the Confrontation Clause precludes only "testimonial" hearsay statements made where the declarant is unavailable and has not been subjected to prior cross-examination. (12) The Crawford decision came at least partly in response to a growing clamor from certain academics (and members of the Court) who, with varying caveats, agreed that the Roberts rule and its emphasis on "reliability" were misplaced and unworkable. (13)

        Crawford's underlying argument asserts that the Framers' fundamental concern in drafting the Confrontation Clause was to prevent the use of ex parte testimony at trial (ergo, "testimonial"), rather than to exclude simply unreliable hearsay statements. Accordingly, the Roberts rule as a constitutional matter was both overbroad and overly narrow, insofar as it excluded constitutionally benign unreliable statements but admitted constitutionally barred, albeit reliable, ex parte testimony. (14)

        The sad hallmark of Crawford, at least thus far, has been the Court's explicit election to "leave for another day any effort to spell out a comprehensive definition of 'testimonial,"' instead holding only that the sweeping new rule "applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." (15) Three years later, that day of explanation has yet to arrive, and judicial application of the rule (particularly in the context of hearsay forensic reports) has proved every bit as difficult as the late Chief Justice Rehnquist predicted in concurrence. (16)

        The Crawford decision generated further speculation with the bald and confusing assertion that business records, "by their nature [are] not testimonial." (17) Indeed, the Chief Justice interpreted (and perhaps over-read) this statement to mean that the new rule did not undermine the constitutional validity of "at least some hearsay exceptions, such as business records and official records." (18) As discussed in depth in Part 11, these statements have been at the focal point of the analysis in almost every case to address Crawford's relevance to hearsay forensic reports.


        In Davis v. Washington, (19) the Court elaborated upon the Crawford rule by applying it to statements made during a 911 call and an on-scene police investigation. (20) The clarification introduced in the Davis opinion (again authored by Justice Scalia) centered on the idea that statements are testimonial if "the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution," rather than to respond to an ongoing emergency. (21)

        The Court suggested that stereotypical testimonial statements would be produced in

        [I]nterrogations solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator. The product of such interrogation, whether reduced to a writing signed by the declarant or embedded in the memory (and perhaps notes) of the interrogating officer, is testimonial. (22) Further distinguishing investigatory interrogations from emergency-response interrogations, Justice Scalia noted that in the former, "the ex parte actors and the evidentiary products of the ex parte communication aligned perfectly with their courtroom analogues," whereas in the latter, the 911 dialer "simply was not acting as a witness; she was not testifying." (23)

        Though these comments no doubt provide a clearer concept of what "testimonial" was meant to encompass, the Court refrained from answering whether it is sufficient that the declarant...

To continue reading