By Joe Bourne. Full text here.
Since Crawford v. Washington, the Confrontation Clause has protected criminal defendants from testimonial hearsay statements. Less clear is what “testimonial” means. Lower courts have split on the question of whether scientific evidence is testimonial, struggling to apply Supreme Court cases decided in very different contexts to the generation of laboratory and autopsy reports. This Note makes four contributions. First, it shows that many courts that prevent defendants from cross-examining the forensic scientists who function as powerful witnesses against them are in fact still applying a now-defunct Ohio v. Roberts test. Second, it examines the new (but increasingly popular) “machine-generated statement” test, arguing that such a test is inconsistent with faithful application of Crawford. Third, the Note concludes that, where law enforcement officers request a forensic laboratory analysis of what seems to be evidence, that analysis will always be testimonial. Fourth, the Note explains why an autopsy report might pose different problems under a Crawford analysis, and concludes that autopsy reports must be considered on a case-by-case basis according to the principles explored in the Note.