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.”

In holdings which limited the impact of the Crawford hold state courts have frequently looked at the issue of reliability in determining whether evidence was testimonial and subject to confrontation. For example the Court of Appeals 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. The Court held that the test for testimonial evidence under Crawford is not the expectation of the declarant that the statement would be used in court. Rather, the Court of Appeals in Rawlins held that the Crawford test for testimonial has three primary factors: we look not only to [1] the interrogator's primary purpose in questioning, but also, [2] in declarant's view, to the purpose the statement was intended to serve, and to [3] the motivation for the statement. Applying this test the Court held that fingerprint comparison reports are testimonial and the fact that they are kept in the ordinary course of business of the police is irrelevant. 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.

Was the Court correct? A variation of this issue was decided 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.”

So does this mean that the Court of Appeals was wrong in Meekins? Maybe not. After Melendez-Diaz was decided certiorari was denied in Meekins.

Also, the Court granted certiorari in Briscoe v Virginia where the issue is 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.

Some (here and here) have speculated that because Melendez-Diaz was a 5-4 decision with an unusual split (the majority was comprised of Scalia, Thomas, Souter, Stevens, and Ginsberg) and Souter is gone, replaced by Sotomayor, a former prosecutor, Briscoe might overturn Melendez-Diaz. Others are less concerned. Stay tuned.