Admissibility of Testimonial Statements

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In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

On June 23, 2023, in Samia v. United States the Court explained that a criminal defendant’s rights under the Confrontation Clause are not violated by the admission of a nontestifying codefendant’s confession during a joint trial when the confession does not directly identify the criminal defendant and the court had instructed the jurors to consider the confession only with respect to the codefendant.1

In the years following Ohio v. Roberts,2 the Supreme Court applied, revisited, and narrowed the Confrontation Clause standard that Roberts had set forth,3 which generally permitted the admission of out-of-court statements only if the declarant was unavailable and the statement was sufficiently reliable.4 In 2004 the Court in Crawford v. Washington5 overruled Roberts and introduced a new standard for determining whether an out-of-court statement implicates the Confrontation Clause.6

Under Crawford, the key to whether evidence implicates the Confrontation Clause is not its reliability, but rather whether it is testimonial.7 Pursuant to Crawford, non-testimonial evidence does not implicate the Confrontation Clause.8 In contrast, testimonial evidence may only be admitted consistently with the Confrontation Clause in limited circumstances.9 Testimonial evidence may be admitted if the declarant: is available at trial for cross examination,10 or is unavailable but the defendant previously had opportunity to cross-examine the declarant about the statement.11 The Court in Crawford also recognized the existence of two common law Confrontation Clause exceptions that historically permitted the admission of testimonial statements12 —but it did not expressly approve or disapprove of either.13

The Crawford Court expressly declined to provide a “comprehensive definition” of “testimonial.” 14 However, drawing from a variety of sources, the Court offered several possible formulations of “core” testimonial statements, including “ex parte in-court testimony or its functional equivalent” such as “affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially.” 15 As additional possible formulations of “testimonial,” the Court listed “extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,” and “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” 16 Regardless of the exact formulation of “testimonial” the Court in Crawford specified that at a minimum, “testimonial” includes police interrogations and “prior testimony at a preliminary hearing, before a grand jury, or at a former trial.” 17

In subsequent opinions, the Court has further examined what it means for evidence to be “testimonial” for Confrontation Clause purposes-particularly in the context of forensic laboratory reports and analysis. For example, in Melendez-Diaz v. Massachusetts18 the Court held that the admission of forensic lab analysts’ affidavits—reporting that material seized from the defendant was cocaine-violated the Confrontation Clause because affidavits were testimonial and the “analysts were ‘witnesses’ for purposes of the Sixth Amendment.” 19 In Bullcoming v. New Mexico20 the Court clarified that when the government seeks to introduce laboratory reports containing testimonial certifications “made for the purpose of proving a particular fact,” the “accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.” 21 Testimony by a surrogate witness who is familiar with general laboratory procedures, but otherwise uninvolved in the relevant certification, is insufficient to satisfy a defendant’s constitutional right.22

In its 2012 opinion Williams v. Illinois,23 the Court again revisited the relationship between the Confrontation Clause and laboratory analysis.24 In Williams, an expert witness testified at trial regarding conclusions she drew by comparing DNA profiles, including one from an outside-laboratory that she had not participated in creating and therefore lacked personal knowledge about.25 In her testimony and on cross-examination, the expert witness identified the source material for that outside-laboratory’s DNA profile.26 The defendant argued that by allowing the substance of a testimonial forensic laboratory report through the trial testimony of an expert witness (who took no part in the reported forensic analysis), the prosecution violated the Confrontation Clause.27 A plurality of four Justices disagreed, and rejected the argument that because the expert was not involved in performing, observing, or certifying the creation of the outside-laboratory’s DNA profile, the testimony regarding the source material for that profile ran afoul of Melendez-Diaz and Bullcoming.28 According to the plurality, the Confrontation Clause “has no application to out-of-court statements that are not offered to prove the truth of the matter asserted.” 29 The plurality concluded that the underlying DNA results were “[o]ut-of-court statements . . . related by the expert solely for the purpose of explaining” her underlying assumptions, rather than statements “offered for their truth.” 30 As a result, the testimony regarding the source material of the outside-laboratory’s DNA profile fell “outside the scope of the Confrontation Clause.” 31

1: Samia v. United States, No. 22-196 (U.S. June 23, 2023)
2: 448 U.S. 56 (1980), abrogated by Crawford v. Washington, 541 U.S. 36 (2004).
3: See Lilly v. Virginia, 527 U.S. 116, 133 (1999) ( “[O]ur cases consistently have viewed an accomplice’s statements that shift or spread the blame to a criminal defendant as falling outside the realm of” reliable hearsay exceptions); White v. Illinois, 502 U.S. 346, 354 (1992) (holding that unavailability “is a necessary part of the Confrontation Clause inquiry only when the challenged out-of-court statements were made in the course of a prior judicial proceeding” ); Idaho v. Wright, 497 U.S. 805, 827 (1990) (determining that the out-of-court statements of a child to an examining pediatrician were insufficiently reliable under Roberts when admitted under a state’s residual hearsay exception); United States v. Inadi, 475 U.S. 387, 394, 400 (1986) (affirming “the validity of the use of co-conspirator statements” and rejecting a broad reading of Roberts that would prohibit introduction by the government of any such “out-of-court statement[s]” absent “a showing that the declarant is unavailable” ); Lee v. Illinois, 476 U.S. 530, 546 (1986) (concluding that a codefendant confession was insufficiently reliable “to overcome the weighty presumption against the admission of such uncross-examined evidence,” although its content largely “interlocked” or overlapped with the defendant’s own confession).
4: Roberts, 448 U.S. at 66.
5: 541 U.S. 36 (2004).
6: Id. at 54, 60. In a subsequent opinion, the Court held that Crawford is not “retroactive to cases already final on direct review.” Whorton v. Bockting, 549 U.S. 406, 409 (2007).
7: Crawford, 541 U.S. at 51; see also Hemphill v. New York, No. 20-637, slip op. at 10–11 (U.S. Jan. 20, 2022) (explaining that if “Crawford stands for anything, it is that the history, text, and purpose of the Confrontation Clause bar judges from substituting their own determinations of reliability for the method the Constitution guarantees” -cross-examination).
8: Crawford, 541 U.S. at 68.
9: Id. at 68–69.
10: Id.
11: Id. Further, Crawford “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” Id. at 59 n.9.
12: The two potential exceptions—dying declarations and forfeiture by wrongdoing—are discussed in Amdt6.5.3.3 Dying Declarations and Forfeiture by Wrongdoing.
13: Crawford, 541 U.S. at 56, n.6, 62 (recognizing the dying declarations and forfeiture by wrongdoing exceptions to the Confrontation Clause but declining to expressly adopt either).
14: See id. at 68 ( “We leave for another day any effort to spell out a comprehensive definition of ‘testimonial.’” ).
15: Id. at 51 (citations omitted), cited with approval in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310 (2009).
16: Id. at 52 (citations omitted), cited with approval in Melendez-Diaz, 557 U.S. at 310.
17: Id. at 68.
18: 557 U.S. 305 (2009).
19: Id. at 308, 311.
20: 564 U.S. 647 (2011).
21: Id. at 652.
22: Id.
23: 567 U.S. 50 (2012) (plurality opinion).
24: Id. at 56–58.
25: Id. at 62.
26: Id. at 61–62.
27: Id. at 56–57.
28: Id. at 79–80.
29: Id. at 57–58.
30: Id. at 58.
31: Id. The plurality in Williams also appeared to give weight to the fact that the underlying proceedings involved a bench trial, rather than a jury trial, and “assumed that the trial judge understood” the admissibility limits of the expert witness’ testimony. Id. at 72–73. Further, according to the plurality, “even if the report produced by [the outside laboratory] had been admitted into evidence, there would have been no Confrontation Clause violation” because it was “produced before any suspect was identified,” sought “not for the purpose of obtaining evidence to be used against petitioner . . . but for the purpose of finding a rapist who was on the loose,” and was not “inherently inculpatory.” Id. at 58.