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Massachusetts Law About Testimonial and Non-testimonial Evidence in Criminal Cases

Confrontation Clause jurisprudence is ever evolving. Please update your research by checking for the latest cases on your particular issue.


U.S. Constitution, 6th Amendment, Confrontation Clause: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him."

Article 12 of the Massachusetts Declaration of Rights: In a criminal trial "every subject shall have a right to produce all proofs, that may be favorable to him [and] to meet the witnesses against him face to face."

Selected United States Supreme Court Cases

Crawford v. Washington, 541 U.S. 36 (2004): Landmark case which re-defined the standard for the admissibility of hearsay evidence under the 6th Amendment. Rejecting the prior reliability test for the admissibility of out-of-court statements as set out in Ohio v. Roberts, 448 U.S. 56 (1980), the court held that the defendant must be afforded confrontation of testimonial statements at trial unless the witness is unavailable and there was a prior opportunity to cross-examine. "Testimonial statement" was not fully defined.

Davis v. Washington, 547 U.S. 813 (2006): A 911 call can have non-testimonial and testimonial aspects. The hearsay is non-testimonial if the "primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency," but testimonial if "the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." See also, Michigan v. Bryant, 562 U.S. __, 131 S.Ct. 1143 (2011) (dying victim's description of shooter was non-testimonial).

Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009): Affidavits reporting results of forensic analysis are testimonial because they are declarations made to prove a fact and made under circumstances in which an objective witness would reasonably believe that the statements would be available for use later at trial. Affidavits cannot be admitted in lieu of live testimony of forensic analysts subject to cross-examination, unless the witness is unavailable and there was a prior opportunity to cross-examine. Business records created for the administration of an entity's affairs are not testimonial, but if they are created to establish or prove some fact at trial they are testimonial.

Bullcoming v. New Mexico, 564 U.S. __, 131 S.Ct. 2705 (2011): Where a certified forensic blood-alcohol lab report is introduced as substantive evidence, the surrogate testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification does not satisfy the accused's right to confrontation. The accused has the right to confront the scientist who performed, observed, or supervised the analysis, unless the scientist is unavailable and there was a prior opportunity to cross-examine.

Williams v. Illinois, 567 US __ (June 18, 2012). The disclosure of a forensic lab report through an expert witness who took no part in the analysis does not violate the 6th Amendment. Lab report provided the basis for the expert's opinion.

Selected First Circuit and Massachusetts Cases

Likely v. Ruane, 642 F.3d 99 (1st Cir., 2011): Post-Crawford but pre-Melendez-Diaz habeas corpus petition denied because state court decision did not involve unreasonable application of "clearly established" Federal law (drug certificate). See also, Nardi v. Pepe, 662 F.3d 107 (1st Cir., 2011) (doctor's opinion based in part on autopsy report).

Commonwealth v. Gonsalves, 445 Mass. 1 (2005) : Massachusetts has a two-prong test to determine whether evidence is testimonial: A statement is "testimonial per se" if it "is part of an affidavit, deposition, confession, or prior testimony..., or if it was procured through law enforcement interrogation (which does not include emergency questioning by law enforcement to secure a volatile scene or determine the need for or provide medical care)." Second, if a statement is not testimonial per se, the statement may be testimonial in fact if "a reasonable person in the declarant's position would anticipate the statement's being used against the accused in investigating and prosecuting the crime." Statements may be admissible under a hearsay exception, but still need to pass constitutional muster under the Confrontation Clause. See also, Commonwealth v. Simon, 456 Mass. 280 (2010) : Acknowledging Davis v. Washington, 547 U.S. 813 (2006), the SJC modified its two-prong test to apply to statements made only to non-law enforcement personnel.

Examples of Non-testimonial Evidence

Commonwealth v. Smith, 460 Mass. 385 (2011) : Victim's statements to police in an emergency were non-testimonial. See also, Commonwealth v. Beatrice, 460 Mass. 255 (2011) (victim's statements during 911 call were non-testimonial).

Commonwealth v. Zeininger, 459 Mass. 775 (2011): An annual certification, and accompanying diagnostic records, attesting to the proper functioning of the breathalyzer machine used to test a defendant's blood alcohol content were admissible as business records in a criminal prosecution for operating a motor vehicle while under the influence without the live testimony of the technician who had performed the certification test on the machine. The records were non-testimonial because they reflected the accuracy and standardization of the equipment whose use in criminal proceedings was merely ancillary, and were subordinate in importance to the administration of the laboratory's affairs.

Commonwealth v. Fox, 81 Mass.App.Ct. 244 (2012) : SORB records were business records, and were not testimonial because they were not prepared to establish some fact at trial.

Commonwealth v. Shangkuan, 78 Mass. App. Ct. 827 (2011) : Return of service was admissible under the public records exception to the hearsay rule, and non-testimonial because it was not created to establish any fact at defendant's trial.

Commonwealth v. Weeks, 77 Mass. App. Ct. 1 (2010): Certified records of conviction were business records, and were not testimonial under the two-prong analysis of Commonwealth v. Gonsalves, 445 Mass. 1 (2005).

Examples of Testimonial Evidence

United States v. Ramos-Gonzalez, 664 F.3d 1 (1st Cir., 2011): Admission of expert testimony which simply parroted drug analysis report, which was not independently admitted, violated defendant's right to confrontation.

Commonwealth v. Whitaker, 460 Mass. 409 (2011): Hearsay opinion of absent fingerprint expert was testimonial and, therefore, erroneous to admit; but error was harmless beyond a reasonable doubt.

Commonwealth v. Parenteau, 460 Mass. 1 (2011) : License revocation certificate attesting to the fact that notice of licensure suspension or revocation was mailed to defendant was testimonial. Certificate was created to prove notice at trial. Court stated that, had the RMV generated the notice at the time it was mailed to defendant as part of the administration of its regular business affairs, such notice would have been non-testimonial.

Commonwealth v. Durand, 457 Mass. 574 (2010) : Testimony concerning factual contents of an autopsy report prepared by a nontestifying medical examiner violated defendant's right to confrontation.

Print Sources

Confrontation in the aftermath of Melendez-Diaz. MCLE, 2010 (program also available on audio CD-ROM). Program materials include sample voir dire of police officer's expert opinion that a substance is a certain drug, sample motions, and MA State Police Drug Protocols.

Essential developments under Melendez-Diaz. MCLE, 2010 (program also available on audio CD-ROM). Program materials include discovery checklist, and sample motions and cross-examinations.

Evidentiary issues: Recent developments in criminal law cases, MCLE, 2011. Section 3, pp. 137-138: Confrontation clause issues with certificates. Contains a summary of recent cases.

"Forensic Evidence in Massachusetts after Melendez-Diaz." 45 New Eng. L. Rev. 39 (2010) Also available online to library cardholders on Heinonline.

"The Testimonial Nature of Multidisciplinary Team Interviews in Massachusetts: Applying Crawford to the Child Declarant." 16 Suffolk J. Trial & App. Advocacy 227 (2011)

"Testing the Testimonial Doctrine: The Impact of Melendez-Diaz v. Massachusetts on State-Level Criminal Prosecutions and Procedure." 91 Boston U. L. Rev. 789 (2011). Also available online to library cardholders on Heinonline.

"Who Can Testify About Lab Results after Melendez-Diaz and Bullcoming? : Surrogate Testimony and the Confrontation Clause." 38 Am. J. Criminal L. 375 (2011). Available online to library cardholders on Heinonline.