As we have previously written, in 2004, the United States Supreme Court, in Crawford v. Washington (541 U.S. 36 [2004]), overruled its prior holding in Ohio v Roberts ( 41 U.S. 36 [2004]) that reliability of hearsay evidence is the test for admissibility, and held that “Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination…. [T]he only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.”

Despite that holding, the New York Court of Appeals has continued to consider the issue of reliability in determining whether evidence was testimonial and subject to confrontation. For example, the Court in People v Rawlins and People v Meekins (10 N.Y.3d 136 [2/19/2008]), considered how Crawford applies two categories of evidence: DNA reports and , fingerprints, comparisons. In Meekins the Court held that DNA profiles, as opposed to DNA comparisons, are not testimonial. The Court explained

the testing and procedures employed in this case were "neither discretionary nor based on opinion" nor did they concern the exercise of fallible human judgment over questions of cause and effect. This is not to say that errors could not have been made in the testing procedure itself. But those errors, if any, are not the product of "testimony" as we understand that term. Because the Gene Screen technicians only contemporaneously...Further, it is of no moment that the Gene Screen technicians knew or had every reason to know (because they were working on a rape kit) that their findings could generate results that could later be used at trial, nor that Gene Screen was performing work for law enforcement. Neither the prosecution nor law enforcement could have influenced the outcome; the government's involvement is inconsequential. Finally, the documents prepared by the Gene Screen technicians were not directly accusatory; none of them compared the DNA profile they generated to defendant's.

That decision appears to be inconsistent with that rendered a few months later by the United States Supreme Court in Melendez-Diaz v. Massachusetts (129 S.Ct. 2527 [June 25, 2009]), in which the Court held that, under the Sixth Amendment, as interpreted in Crawford the Confrontation Clause requires that the expert who prepared a scientific report must be produced at trial so that the defendant has the opportunity to cross-examine the expert. The test for testimonial in Melendez-Diaz was that the statements 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.”

Despite this inconsistency between the New York holding and that of the Supreme Court, few were aggressively arguing that Meekins was wrongly decided, both because certiorari was denied in Meekins and because the Supreme Court granted certiorari in Briscoe v Virginia where the issue was whether where a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the state avoid violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness.

As discussed previously (here and here)there was concern that the decision in Briscoe would either limit or overturn Melendez-Diaz.

Instead, after oral argument, the Court in Briscoe (559 U. S. ____ (1/25/2010) merely remanded the case for further proceedings not inconsistent with the opinion in Melendez-Diaz. Thus, attorneys can now, with confidence, urge that Crawford fully applies to scientific and medical test. Not only should the holding in Meekins be questioned, but also those of the courts in US v Feliz (467 F3d 227 [2d Cir. 2006]) and People v Freycinet (11 NY3d 38 [2008]) limiting the application of Crawford with respect to autopsy reports.