As the Judges Saw It
September-October 2009

Strange things are afoot at the Circle K…mart?

An examination of the United States Supreme Court’s decision in Melendez-Diaz v. Massachusetts1

David C. Newell

Assistant District Attorney in Harris County

Editor’s note:  Starting with this issue, we are revamping the As the Judges Saw It column. Rather than duplicate effort by writing about cases that have already been published in TDCAA’s weekly case summaries emailed every Friday (sign up for these  free emails at www.tdcaa .com/newsletter/subscribe.php), our writers will focus on a single case that requires in-depth analysis. While Melendez-Diaz v. Massachusetts is clearly a significant case, its lasting impact in Texas may be in the questions it raises rather than the answers it gives.

Boston police officers got information that Thomas Wright was dealing cocaine out of a local Kmart. A customer would call Wright while he was working at Kmart, a car would pick him up, then the car would drop him off back at his job. The police set up surveillance and witnessed a blue sedan pick Wright up and take him to make the exchange. When the sedan returned, police stopped Wright, searched him, and found cocaine. They also stopped the two men in the car, one of whom was Luis Melendez-Diaz, the defendant in this case.

Police put all three men in a police cruiser, and during the drive to the jail, they noticed the passengers fidgeting and acting nervous. After depositing all three at the jail, police searched the cruiser and found cocaine. The State charged Melendez-Diaz with distributing cocaine. At his trial, the State introduced “certificates of analysis” pursuant to a Massachusetts statute. The certificates were affidavits that showed the results of the forensic analysis performed on the seized substance. The sole purpose of these affidavits under Massachusetts law was to provide prima facie evidence of the composition, quality, and net weight of the analyzed substance. Mel-endez-Diaz objected based on Crawford v. Washington2 that the Confrontation Clause required the analyst to testify in person, but the trial court overruled the objection. The U.S. Supreme Court, though, later disagreed.

An analysis requires an analyst

The United States Supreme Court held that the analyst’s affidavits were testimonial statements, and the analysts were witnesses for purposes of the Sixth Amendment. Justice Scalia, writing for the five-judge majority, explained that the affidavits fell within the “core class of testimonial statements,” and the Confrontation Clause guaranteed Melendez-Diaz the right to confront the witnesses who made those statements through cross-examination. Moreover, the affidavits are functionally identical to live, in-court testimony doing “precisely what a witness does on direct examination.” So, the affidavits were testimonial and the analysts were witnesses; Melendez-Diaz should have been given the opportunity to cross-examine those witnesses at trial.

Scalia then went on to reject arguments that the witnesses don’t need to be cross-examined. Just because they aren’t “accusatory”—meaning they’re not directly accusing the defendant of wrongdoing—doesn’t mean they aren’t testifying against him. Just because they aren’t “conventional”—like the ones called in the trial of Sir Walter Raleigh to relate past events—doesn’t mean the State can keep them off the stand. It doesn’t matter whether the witnesses are describing contemporaneously observed facts or relating matters from the past. It doesn’t matter that they did not observe the crime or any human action related to it. It doesn’t matter that the statements didn’t come from interrogation. It doesn’t matter that the testimony is simply neutral scientific testing. What matters, according to Scalia and the majority, is that the Confrontation Clause provides a procedural guarantee of reliability by allowing the defendant an opportunity to cross-examine those witnesses against him.

Thank God for Article 38.41 and Colorado County, Texas

Melendez-Diaz does not mean, however, that the State must always call the analyst to introduce results of chemical analysis. Justice Scalia notes that 95 percent of convictions are obtained via guilty pleas so this decision would be implicated only in a small fraction of cases. Moreover, many states have crafted laws to allow for the admissibility of such evidence without running afoul of Crawford (and now Melendez-Diaz). States like, oh I don’t know, Texas. That’s right; Justice Scalia actually cites Article 38.41 of the Texas Code of Criminal Procedure as one of three examples of how to craft a notice-and-demand statute that still satisfies Crawford. In doing so, Scalia makes clear that the defendant always has the burden to make his Crawford objection so these statutes don’t shift the burden of proof to a defendant. Rather, the statute regulates the time in which a defendant must make the objection by giving him notice of the State’s intent to use the evidence and a deadline to demand that the actual witness be called. If he doesn’t make the demand in a timely fashion, he forfeits the right to complain.

What does this have to do with Colorado County? Well, our statute—the one likely to become one of the models for the rest of the country—was the brainchild of Jay Johannes of the County and District Attorney’s Office in Colorado County and drafted by Ken Sparks, the elected prosecutor. They—along with then-State Senator Teel Bivins and State Representative Debbie Riddle, the legislators who carried the bill—helped give Texas prosecutors a very practical and modest statute that has probably shielded Texas from another Apprendi-like storm. So if you happen to see these folks (you can identify Ken by his eponymous cap), make sure you give them a shout out of thanks.

What’s all this talk about business records, then?

The foresight baked into Article 38.41 (and presumably Article 38.42 [chain of custody affidavit], which works the same way) doesn’t end the discussion, however. Justice Scalia also considered the impact of Crawford on business records. Scalia makes clear that business records that satisfy the hearsay definition of a business record aren’t necessarily immune from a Confrontation Clause objection. Judge Keasler, who concurred in Smith v. State3 on the ground that business records are not testimonial under Ohio v. Roberts, may have to rethink his position. According to Scalia, business records kept in the normal course of business may not violate Crawford, but courts must look at whether the regularly conducted business activity is production of evidence for use at trial. If it’s a record made with the idea that it will be used at trial, it violates the Confrontation Clause; if not, it does not.

The example Justice Scalia gave of a problematic business record was an accident report prepared by an employee of a railroad company. In a prior case, the Supreme Court had held that such records were not “business records” because they were calculated for use essentially in the courts, not in the business.4 Conversely, Justice Scalia does note in footnote two of the opinion that medical reports created for treatment purposes would not be testimonial in this case. Perhaps it’s a little too soon for a sigh of relief on that front, but it is reassuring.

So where does that leave autopsies? On the one hand you can see the argument that it is a record prepared for trial. On the other hand, it’s really a diagnosis of a dead patient. Obviously, prosecutors offering an autopsy report should be ready to argue that such a report is a business record created for the use of the medical examiner’s “business,” not prepared solely for trial.5 Moreover, Melendez-Diaz can be distinguished from the typical autopsy situation because the lab results in the case came in without a sponsoring witness to explain them, while autopsies will typically come into evidence through a sponsoring witness, namely the medical examiner. Note, however, that Scalia specifically mentions in Melendez-Diaz that coroner’s inquests are given no special status despite the fact that they were admissible without a right of confrontation in common-law England.

The court does not touch upon what happens when the medical examiner who performed the autopsy is unavailable. Is the second, re-done autopsy OK even though it was based on data collected by an un-testifying witness? The data are based on the previous ME’s observations. In footnote one, Justice Scalia rejects the idea that the State must prove every link in a chain of custody, thereby leaving it up to the prosecution to decide what links are necessary. But if the State must prove a link, it must do so with live testimony. So if you draw the analogy, it may be necessary to bring in the medical examiner to prove the underlying data if that information is important to the case.

However, under Rule 703, the second doctor can rely upon even inadmissible evidence in reaching his own opinion,6 which could provide an avenue of admissibility for the second medical examiner’s opinion even if the report itself is inadmissible. The defense may point out the language that even a business record that satisfies an evidentiary predicate may not be immune to a Confrontation Clause challenge. However, that argument loses sight of the evidence being introduced. That might work to stop the introduction of the data contained in the autopsy, but if the State is trying to introduce the second examiner’s opinion, that witness is necessarily available for cross-examination, so it shouldn’t violate Crawford.

Of course, this is all pretty far afield of the question of admissibility of unsponsored lab results, so only time will tell how big of an impact this case will have on such records. By way of reassurance, the San Antonio Court of Appeals has upheld autopsy reports over Crawford objections where the doctor performing the autopsy was not the one who testified.7 Additionally, for those concerned about the same situation except with a chemist opining about tests performed by another chemist, the Texarkana Court of Appeals has held that such situations do not violate Crawford either.8 Remember, these cases were decided before Melendez-Diaz so they may be distinguishable, but they should provide some support going forward should these situations arise.

Are jail records in trouble?

Melendez-Diaz may impact another area of Texas law, namely jail infraction records introduced at punishment. In Smith v. State and Russeau v. State, the Court of Criminal Appeals held that some portions of jail infraction records violated Crawford, but the court reached that decision by drawing a distinction between records that amounted to nothing but a sterile recitation of the facts and subjective narratives.9 According to the Court of Criminal Appeals, the former do not violate Crawford, but the latter do. Under this theory, the Court of Criminal Appeals upheld the admission of parole revocations certificates in Segundo v. State because those were merely boilerplate certificates that did not contain subjective narratives on why a particular defendant violated his parole.10 Under Melendez-Diaz, it’s possible that this distinction could be seen as an attempt to single out a certain type of evidence for exemption from the confrontation requirement based upon its reliability. However, it’s also possible that the narrative recitations in jail records could be admissible if they were not prepared in contemplation of trial. Time will certainly tell, but prosecutors seeking to introduce such records should be prepared to argue why these jail records are just like normal business records in response to a Crawford objection.11

And so it goes

Prosecutors are likely to get some new Crawford challenges based on Melendez-Diaz. Remember, though, that this case dealt only with drug lab results, and the Supreme Court pretty much endorsed the Texas statutory notice-and-demand scheme for admission of drug analysis. However, prosecutors must be prepared to respond to a Crawford objection to business records with some argument that the records were not prepared for the purpose of later use at trial.12 This need may be particularly keen in situations involving autopsies or jail infraction records as current caselaw may need to be re-examined in light of Melendez-Diaz. Normally, I’d ask you a question to end the column, but it seems the Supreme Court has taken care of that for me. i


1 Melendez-Diaz v. Massachusetts, ___ S.Ct.___; 2009 WL 1789468 (June 25, 2009)(5:4).
2 Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004).
3 Smith v. State, ___ S.W.3d ___; 2009 WL 1212500 (Tex. Crim. App. May 6, 2009)(Keasler, J. concurring).
4 Palmer v. Hoffman, 318 U.S. 109 (1943).
5 See e.g. Mitchell v. State, 191 S.W.3d 219, 221-22 (Tex. App.—San Antonio 2005, pet. ref’d.)(holding that an autopsy is admissible as a non-testimonial business record).
6 Tex. R. Evid. 703.
7 Mitchell v. State, 191 S.W.3d 219, 221-22 (Tex. App.—San Antonio 2005, pet. ref’d.); see also Pierce v. State, 234 S.W.3d 265, 269 (Tex. App.—Waco 2007, pet. ref’d); Denoso v. State, 156 S.W.3d 166, 182 (Tex. App.—Corpus Christi 2005, pet. ref).
8 Blaylock v. State, 259 S.W.3d 202, 206 (Tex. App.—Texarkana 2008, pet. ref).
9 Smith v. State, ___ S.W.3d ___; 2009 WL 1212500 (Tex. Crim. App. May 6, 2009); Russeau v. State, 171 S.W.3d 871 (Tex. Crim. App. 2005); see also Campos v. State, 256 S.W.3d 757, 762 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d) (holding that autopsy report was non-testimonial upon same “sterile recitation of the facts” theory).
10 Segundo v. State, 270 S.W.3d 79 (Tex. Crim. App. 2008).
11 They can also take the road that Smith County took in the retrial of Russeau by calling 62 witnesses to prove up all the incidents that had merely been lost in the jail records on the first trial. Russeau v. State, ___ S.W.3d ___; 2009 WL 1873298 (Tex. Crim. App. July 1, 2009).
12 De La Paz v. State, 273 S.W.3d 671 (Tex. Crim. App. 2008) (holding that the prosecution faced with a Crawford objection must establish evidence is admissible under Crawford).