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Criminal Justice Magazine
Fall 2004
Volume 19 Number 3

Admissibility of Lab Reports
The Right of Confrontation Post-Crawford

By Paul C. Giannelli

Paul C. Giannelli, is the Albert Weatherhead III & Richard W. Weatherhead Professor of Law at Case Western Reserve University Law School in Cleveland, Ohio. He is coauthor of Scientific Evidence (LEXIS 3d ed., 1999), and a contributing editor to Criminal Justice magazine where he writes the Scientific Evidence column.

In Crawford v. Washington, 124 S. Ct. 1354 (2004), the U.S. Supreme Court jettisoned nearly 25 years of confrontation jurisprudence by overruling Ohio v. Roberts, 448 U.S. 56 (1980). Roberts had established reliability as a critical component in the confrontation analysis of hearsay statements. Crawford rejected reliability as the constitutional test. Instead, the Court focused on cross-examination as the determinative factor when hearsay statements are “testimonial” in nature.
The Court has yet to define the contours of the term “testimonial,” noting that it left “for another day any effort to spell out a comprehensive definition of ‘testimonial.’ ” (Crawford, 124 S. Ct. at 1374.) Nevertheless, some guidance was provided. The Court’s historical analysis repeatedly harked back to the Framers’ concern with the use of ex parte affidavits at trial: “[T]he principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.”(Id. at 1363.) It is not too much of a step to argue that a laboratory report is simply the affidavit of an expert.
This article discusses whether laboratory reports fall within the definition “testimonial.” Before addressing that issue, evidentiary objections to the admissibility of lab reports are considered. In other words, do these reports fall within an exception to the hearsay rule? If not, the constitutional question becomes moot. Note, however, that there are a variety of reports that are used in criminal prosecutions—crime lab reports, autopsy reports, and private hospital reports—and they may be treated differently.

Evidentiary objections
Prior to the adoption of the Federal Rules of Evidence (FRE) in 1975, the federal courts generally admitted laboratory reports under the business or public records exceptions to the hearsay rule. (E.g., United States v. Frattini, 501 F.2d 1234 (2d Cir. 1974) (cocaine report); United States v. Parker, 491 F.2d 517 (8th Cir. 1973) (heroin report); Kay v. United States, 255 F.2d 476 (4th Cir. 1958) (blood alcohol test report).) The enactment of FRE, however, cast doubt on these decisions.

Public records exception
Federal Rule 803(8) recognizes a hearsay exception for public records. This exception is supported by several rationales. First, because of “the assumption that a public official will perform his duty properly,” public records are considered reliable. Second, “the unlikelihood that [the official] will remember details independently of the record” makes reliance on the record a necessity in many cases. (FED. R. EVID. 803(8) advisory committee’s note).)
Rule 803(8)(C) encompasses public records containing “factual findings resulting from an investigation made pursuant to authority granted by law.” In a leading case, United States v. Oates, 560 F.2d 45, 67 (2d Cir. 1977), the Second Circuit wrote that it “seems indisputable” that the chemist’s official report and worksheet identifying a substance as heroin can be characterized as “investigative reports,” and the rule explicitly excludes investigative reports in criminal cases when offered against the accused. According to the federal drafters, this result is required “in view of the almost certain collision with confrontation rights which would result from their use against the accused in a criminal case.” (FED. R. EVID. 803(8) advisory committee’s note.)

Police records exclusion
Courts have also considered the admissibility of laboratory reports under subdivision (B) of the rule—reports of matters observed and recorded pursuant to a legal duty. The Oates court concluded that laboratory reports “might also be within the ambit” of this provision, a ruling that required the court to examine Rule 803(8)(B)’s explicit exclusion of police records: “[I]n criminal cases matters observed by police officers and other law enforcement personnel” are inadmissible. According to the Senate committee report, the police records exclusion was based on the belief that “observations by police officers at the scene of the crime or the apprehension of the defendant are not as reliable as observations by public officials in other cases because of the adversarial nature of the confrontation between the police and the defendant in criminal cases.” (S. REP. NO. 1277, 93d Cong., 2d Sess. 17.) In addition, the legislative history indicates that Congress was concerned with the confrontation problems raised by the use of police records in criminal trials.
In Oates, the court adopted a literal interpretation of the police records exclusion, under which all police reports are automatically excluded. According to the court, prosecution laboratory reports fell within this exclusion. In contrast to Oates’s literal interpretation, other courts adopted a more flexible approach, holding that the police records exclusion does not apply to all police records. For example, the Ninth Circuit held that “Congress did not intend to exclude [police] records of routine, nonadversarial matters.” (United States v. Orozco, 590 F.2d 789, 793 (9th Cir. 1979) (customs officer’s recording of license plate numbers admissible).) See also United States v. Enterline, 894 F.2d 287, 289–91 (8th Cir. 1990) (computer report of identification numbers of stolen vehicles admissible as a routine, nonadversarial record); United States v. Dancy, 861 F.2d 77,
79-80 (5th Cir. 1988) (state prison fingerprint card
admissible).)
If laboratory reports are considered routine and objective, they may be admissible under this approach. (E.g., United States v. DeWater, 846 F.2d 528, 530 (9th Cir. 1988) (intoxilyzer test report admissible as a routine record); State v. Smith, 323 S.E.2d 316, 327 (N.C. 1984) (rejecting Oates and admitting report of breath analysis tests). See also State v. Smith, 675 P.2d 510, 512 (Or. App. 1984) (distinguishing Oates and admitting certificate of Breathalyzer inspections). According to one court, a chemist “does no more than seek to establish an intrinsically neutral fact.” (United States v. Evans, 45 C.M.R. 353, 356 (C.M.A. 1972) (LSD analysis).) Another court stated that reports of chemical analyses contain “objective facts rather than expressions of opinion.” (Howard v. United States, 473 A.2d 835, 839 (D.C. App. 1984).)
However, the Michigan Supreme Court recently rejected this view in People v. McDaniel, 670 N.W.2d 659, 661 (Mich. 2003), concluding that the report, “prepared by a police officer, was adversarial. It was destined to establish the identity of the substance—an element of the crime for which defendant was charged.”

Autopsy reports
Some courts distinguish autopsy reports from crime laboratory reports. In a later case, United States v. Rosa, 11 F.3d 315, 332 (2d Cir. 1993), the Second Circuit upheld the admissibility of the factual portions of an autopsy report under Rule 803(8)(B). The court ruled that, unlike the customs officials in Oates, medical examiner employees were not “other law enforcement personnel” within the meaning of the rule. According to the court, “Unlike Customs, which has responsibility for enforcement of . . . customs and narcotics laws, . . . the Medical Examiner’s Office is required simply to investigate unnatural deaths; it refers a death bearing any indicium of criminality to the appropriate district attorney and has no responsibility for enforcing any laws. . . .” (Accord Garcia v. State, 868 S.W.2d 337, 342 (Tex. Crim. App. 1993) (autopsy report admissible under TEX. R. EVID. 803(8)(B); county medical examiner not “other law enforcement personnel”).)
Similar reasoning appears in Ealy v. State, 685 N.E.2d 1047, 1055 (Ind. 1997), in which the Indiana Supreme Court admitted an autopsy report as a public record: “As a general rule, the examiners who prepared the autopsy report do so for nonadvocacy reasons. They are charged by law with the job of producing public documents relating to deaths. They do not know if a particular case will result in trial, nor do they know who a potential defendant might be. . . . They have every incentive to do a proper job and their impartiality is assumed.”

Business records exception
In Oates, the prosecution had argued that the chemist’s report was admissible as a business record under Rule 803(6). Although the Second Circuit recognized that, as a general rule, hearsay evidence failing to satisfy the requirements of one exception may nonetheless be admissible under another exception, it found that Congress’s “clear legislative intent” in excluding police and investigative reports in Rule 803(8) precluded their admission under any other hearsay exception. In short, “Rule 803(6) cannot be used
as a back door to admit evidence excluded by Rule 803(8)(B).” (United States v. Brown, 9 F.3d 907, 911 (11th Cir. 1993).)
Nevertheless, in United States v. Baker, 855 F.2d 1353, 1359 (8th Cir. 1988), the Eighth Circuit held, without much discussion, that “[w]hen made on a routine basis, laboratory analyses of controlled substances are admissible as business records under Federal Rule of Evidence 803(6).” (See also United States v. Roulette, 75 F.3d 418, 422 (8th Cir. 1996) (affirming Baker, cocaine report admissible as business record, no confrontation violation); United States v. Garnett, 122 F.3d 1016, 1018-19 (11th Cir. 1997) (drug analysis lab report by F.D.A. forensic chemistry center admitted as business record in drug tampering case).)
In United States v. Blackburn, 992 F.2d 666, 670–72 (7th Cir. 1993), the Seventh Circuit addressed the issue. After citing both Oates and Baker, the court noted that it had “steered a middle course between the Eighth Circuit’s wholesale admission of laboratory reports and the Second Circuit’s virtual ban.” The court ruled that a computer printout of lensometer readings for eyeglasses found at a crime scene was inadmissible as a business record because the document “was prepared at the request of the FBI, in anticipation of a prosecution against [the accused].” The court went on, however, to admit the report under the residual hearsay exception.

Litigation records
As Blackburn suggests, courts often exclude “litigation records” because they lack the reliability that other business records are assumed to possess, and yet some courts do not classify laboratory reports as litigation records. For example, in United States v. Evans, 45 C.M.R. 353, 356 (C.M.A. 1972), a military court commented: “We are not persuaded that a chemical examiner’s report is made principally for the purpose of prosecution.” (See also United States v. Frattini, 501 F.2d 1234 (2d Cir. 1974); United States v. Ware, 247 F.2d 698 (7th Cir. 1957).)
In contrast, in State v. Henderson, 554 S.W.2d 117, 120 (Tenn. 1977), the Tennessee Supreme Court stated that laboratory reports “cannot be said to have been prepared for any reason other than their potential litigation value.” Similarly, an Ohio court of appeals held that a case file containing the results of DNA testing prepared by Cellmark Laboratories was inadmissible. The court commented that, “[w]here a document generally satisfies the elements of Evid. R. 803(6), but was prepared in anticipation of litigation, the underlying rationale of trustworthiness is supplanted by a natural motivation to color the facts in favor of the requesting entity.” (State v. Lane, 671 N.E.2d 272, 279–80 (Ohio App. 1995).) The court concluded that “[t]he DNA casefile prepared by Cellmark was certainly prepared as part of its business. Yet the casefile was prepared for the sole purpose of litigation and, therefore, lacks the requisite trustworthiness.” (See also People v. McDaniel, 670 N.W.2d 659, 661 (Mich. 2003) (“The hearsay exception in MRE 803(6) is based on the inherent trustworthiness of business records. That trustworthiness is undermined when the records are prepared in anticipation of litigation. Hence, the police laboratory report is inadmissible hearsay because ‘the source of information or the method or circumstances of preparation indicate lack of trustworthiness.’ ”) (citations omitted); State v. Kennedy, 7 S.W.3d 58, 67 n.8 (Tenn. Crim. App. 1999) (“The DNA analysis prepared in the present case was for no other purpose but this litigation, calling into question the report’s reliability as a business record.”); State v. Williams, 644 N.W.2d 919, 931 (Wis. 2002) (“Thus, considering the statutory scheme and the rule that records prepared in anticipation of litigation generally do not fall within the business records exception to the hearsay rule, we determine that the state crime lab report prepared for Williams’ prosecution was erroneously admitted as a business record under §908.03(6).”).)
While all these cases must now be read in light of Crawford, a “litigation record,” as explained below, easily falls within some definitions of “testimonial.”

Confrontation Clause: Ohio v. Roberts
After Roberts, lower courts had disagreed on whether the admission of laboratory reports violated the Confrontation Clause. Some found Sixth Amendment violations. (E.g., United States v. Martin, 984 F.2d 308 (9th Cir. 1993) (urinalysis report showing cocaine and methadone at revocation of supervised release); Pickett v. Bowen, 798 F.2d 1385, 1387 (11th Cir. 1986) (medical report); United States v. McClintock, 748 F.2d 1278 (9th Cir. 1984) (reports on the value of gems); Stevens v. Bordenkircher, 746 F.2d 342 (6th Cir. 1984) (death certificate); Grantham v. State, 580 So. 2d 53 (Ala. Crim. App. 1991) (marijuana report); Moon v. State, 478 A.2d 695, 702–04 (Md. 1984) (hospital report of alcohol test); In re J.H., 581 A.2d 1347 (N.J. Super. App. Div. 1990) (cocaine certificate); People v. Bridges, 584 N.Y.S.2d 360 (App. Div. 1992) (hospital report indicating presence of motile sperm).)
However, other courts arrived at the opposite conclusion, again considering a variety of reports. (E.g., United States v. Roulette, 75 F.3d 418 (8th Cir. 1996) (cocaine report); United States v. Rosa, 11 F.3d 315 (2d Cir. 1993) (factual portions of autopsy report); United States v. Baker, 855 F.2d 1353 (8th Cir. 1988) (drug report); United States v. DeWater, 846 F.2d 528 (9th Cir. 1988) (intoxilyzer test report); United States v. Vietor, 10 M.J. 69 (C.M.A. 1980) (marijuana report); State v. Russo, 485 A.2d 1335 (Conn. App. 1985) (hospital report); State v. Smith, 323 S.E.2d 316 (N.C. 1984) (breath test affidavit); Ealy v. State, 685 N.E.2d 1047, 1055 (Ind. 1997) (“[I]t is relatively well established that the admission of autopsy reports does not violate a defendant’s confrontation rights.”).)
As would be expected under Roberts’s reliability analysis, some courts applied the “firmly rooted hearsay exception” rationale. For example, in United States v. Baker, 855 F.2d 1353, 1360 (8th Cir. 1988), the Eighth Circuit held: “When admitting the laboratory reports under the business records exception, the district court acted under a firmly rooted exception.” (See also United States v. DeWater, 846 F.2d 528 (9th Cir. 1988) (intoxilyzer test report admissible as public record, a “firmly rooted” exception).)
Other courts reached the same result using an alternative analysis. They focused on the existence of particularized guarantees of trustworthiness rather than the “firmly rooted” exception rationale. In United States v. Rosa, 11 F.3d 315 (2d Cir. 1993), the Second Circuit ruled that admission of factual portions of an autopsy report did not violate the right of confrontation. The court held that even if autopsy reports do not fall within a “firmly rooted” hearsay exception, the factual portions have particularized guarantees of trustworthiness. (See also Sherman v. Scott, 62 F.3d 136, 140 (5th Cir. 1995) (“In applying this rule to laboratory reports, other circuit courts have determined that such reports contain the particularized guarantees of trustworthiness to keep them from violating a defendant’s rights under the Confrontation Clause.”); Manocchio v. Moran, 919 F.2d 770 (1st Cir. 1990) (autopsy report admissible but not as a “firmly rooted” exception).)

Crawford analysis
Crawford cuts the ground from under these cases by rejecting reliability as a constitutionally relevant issue. Instead, out-of-court “testimonial” statements were the root concern of the Framers, and these must be subject to cross-examination.
The trick is defining what is “testimonial” in this context. Clearly ex parte affidavits come within the phrase. Moreover, the Court elaborated in several passages: “Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.” (Crawford, 124 S. Ct. at 1374.) For present purposes, the following passage seems critical: “An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” (Id. at 1364.) There is nothing “casual” about a conclusion based on an expert’s analysis—made in anticipation of litigation. Furthermore, in an early case, Diaz v. United States, 223 U.S. 442, 450 (1912), the Court had remarked in dictum that an autopsy report “could not have been admitted without the consent of the accused . . . because the accused was entitled to meet the witnesses face to face.”
Nevertheless, at one point in the opinion, Justice Scalia cited “business records” as statements that are not testimonial. (Crawford, 124 S. Ct. at 1367.) Interestingly, the Chief Justice in dissent added public records: “To its credit, the Court’s analysis of ‘testimony’ excludes at least some hearsay exceptions, such as business records and official records.” (Id. at 1378).
Only a few post-Crawford cases have considered the issue. In Perkins v. State, 2004 WL 923506, at *6 (Ala. Crim. App. 2004), the Alabama Court of Criminal Appeals concluded: “Unlike the hearsay in Crawford v. Washington, the hearsay at issue in this case is nontestimonial in nature—an autopsy report on the victim.” In another case, the same court on the same day wrote that Crawford “does not appear to be implicated here because the evidence at issue is not testimonial. The admissibility of the autopsy report and materials associated with it is governed by hearsay law.” (Smith v. State, 2004 WL 921748, at *8 (Ala. Crim. App. 2004).) Then, quite enigmatically, it ruled that “[u]nder the particular facts of this case, we are compelled to find that admission of the autopsy report and records was error, though harmless.” Unfortunately, the Court does not tell us what particular facts led it to this conclusion.
In contrast, the Nevada Supreme Court found such reports “testimonial.” (See City of Las Vegas v. Walsh, 91 P.3d 591, 595 (“[A] health care professional’s affidavit . . . can only be admitted if the health care professional is unavailable to testify at trial and the defendant had a prior opportunity to cross-examine the health care professional regarding the statements in the affidavit.”) See also People v. Rogers, 2004 WL 1405875 (N.Y. App. Div.) (“Because the test was initiated by the prosecution and generated by the desire to discover evidence against defendant, the results were testimonial (see Crawford v. Washington, supra). The test result established the victim’s blood alcohol content at the time the blood was drawn and was the basis of expert testimony extrapolating her blood alcohol content at the time of the alleged rape.”).)

Need for cross-examination
Anyone who would question the value of cross-examination in this context need only look at recent newspaper headlines:
• Jim Yardley, Oklahoma Inquiry Focuses on Scientist Used by Prosecutors, N.Y. TIMES, May 2, 2001, at A1 (discussing Joyce Gilchrist).
• Adam Liptak, 2 States to Review Lab Work of Expert Who Erred on ID, N.Y. TIMES, Dec. 19, 2002, at A24 (discussing erroneous hair evidence in the trial of Jimmy Ray Bromgard, who spent 15 years in prison before being exonerated by DNA).
• Jim Dwyer, Some Officials Shaken by New Central Park Jogger Inquiry, N.Y. TIMES, Sept. 28, 2002, at B1, B3 (“At the trial, the prosecution had argued that hairs found on Mr. Richardson’s clothes came from the jogger. Recent DNA tests show that claim to be wrong.”).
• Nick Madigan, Houston’s Troubled DNA Crime Lab Faces Growing Scrutiny, N.Y. TIMES, Feb. 9, 2003 (operations suspended in December after an audit found numerous problems).
• Ralph Blumental, Double Blow, One Fatal, Strikes Police in Houston, N.Y. TIMES, Oct. 30, 2003, at A23 (“The Houston police chief announced on Wednesday that he had shut down the Police Department’s toxicology section after its manager failed a competency test . . . .”).
• Ex-F.B.I. Biologist Falsified DNA Reports, Associated Press, May 19, 2004 (Jacqueline A. Blake, former DNA biologist for the F.B.I., pleads guilty to making false statements on official government reports).
• Sara Kershaw, Spain and U.S. at Odds on Mistaken Terror Arrest, N.Y. TIMES, June 5, 2004 at A1 (Spanish clear Portland-area lawyer Brandon Mayfield. Although F.B.I. found fingerprint match, Spanish officials matched the fingerprints to an Algerian national.).
Autopsy reports may also be misleading. For example, in one case a death certificate specified the cause of death. Later proceedings demonstrated that this information was suspect. The conclusion regarding the cause of death—recorded as gunshot wounds—was based not on the autopsy but rather on the statement of a witness as transmitted to the coroner through the police. (Stevens v. Bordenkircher, 746 F.2d 342, 346 (6th Cir. 1984). See also People v. Beeler, 891 P.2d 153, 168 (Cal. 1995) (pathologist who had conducted the autopsy “had apparently left the coroner’s office under unfavorable conditions,” i.e., he “had caused ‘quite a bit of consternation’ in a prior murder case by basing his conclusion regarding the cause of death on a police report rather than on medical evidence”).)

“Notice and demand” statutes
Some jurisdictions have enacted statutes that require the prosecution to notify the defense of its intention to use a lab report at trial and then provide for the report’s admission if the defense does not request the analyst’s presence. (E.g., MD. CTS. & JUD. PROC. CODE ANN. §10-306 (intoxication tests); N.J. STAT. ANN. § 2C:35-19 (controlled substances); OHIO REV. CODE ANN. § 2925.51(C) (controlled substances); WASH. R. CRIM. P. 6.13 (lab report admissible if defendant, after receiving notice, does not demand expert’s presence seven days before trial).)
These provisions raise an issue not directly addressed in Crawford— waiver of the right of confrontation. For example, in State v. Crow, 974 P.2d 100 (Kan. 1999), the Kansas Supreme Court upheld the state notice and demand statute on this basis. The certificate must include the type of analysis performed, the result achieved, any conclusions reached based upon that result, that the subscriber is the person who performed the analysis and made the conclusions, and the subscriber’s training or experience to perform the analysis. The court construed the statute to give the defendant control over the admissibility issue. The statute is “constitutional so long as the accused has the right to determine whether the contents of a report concerning forensic examinations will be contested at trial. It is not unconstitutional to require this right to be affirmatively exercised and that the grounds to the objection have an indicia of merit, not be interposed for delay, and result in a valid issue being contested at trial.” (Id. at 111). The court also wrote that the “Legislature determined the public has a significant interest in avoiding the unnecessary expense of insuring the presence of laboratory technicians at trials where the content of their testimony will not be challenged by defendants.” (Id.)
Other cases are in accord. (See State v. Davison, 245 N.W.2d 321, 323 (Iowa 1976); State v. Christianson, 404 A.2d 999, 1002 (Me. 1979); State v. Larochelle, 297 A.2d 223 (N.H. 1972); State v. Simbara, 811 A.2d 448, 455 (N.J. 2002) (“The State’s proffer of a certificate whose form and content conform to the statute does not itself preclude a defendant’s right to confront the certificate’s preparer at trial.”; analyst must be produced if accused objects to certificate); State v. Hancock, 854 P.2d 926 (Or. 1993) (statute that provides for admission of state police lab report of controlled substances and also subpoena for examiner’s appearance does not violate the state or federal Constitution).)
The Illinois Supreme Court reached the opposite result in People v. McClanahan, 729 N.E.2d 470, 474–76 (Ill. 2000). The court found that a notice and demand statute was not a firmly rooted hearsay exception and that records prepared in anticipation of litigation did not fall within the business records exception to the hearsay rule. The court went on to reject the constitutionality of a “demand” provision because it “impermissibly requires the defendant to take affirmative action to secure a right that he has already been constitutionally guaranteed or be deemed to have waived that right. We are unaware of any authority that permits the legislature to make a defendant’s confrontation rights contingent upon action by the defendant, and the State has not argued that such authority exists.” The court also wrote:

Accepting the State’s argument—that a defendant does not lose his confrontation right if a defendant can still subpoena the witnesses against him—would necessarily mean that there would be no constitutional problem with allowing the State to introduce all of its evidence by affidavit as long as a defendant is allowed to bring the prosecution’s witnesses into court himself. Trial by affidavit is the primary evil that the confrontation clause was designed to prevent[.]
(Id. at 477.)

The court cited Taylor v. Illinois, 484 U.S. 400, 410 (1988), where the U.S. Supreme Court wrote: “There is a significant difference between the Compulsory Process Clause weapon and other rights that are protected by the Sixth Amendment—its availability is dependent entirely on the defendant’s initiative. Most other Sixth Amendment rights arise automatically on the initiation of the adversary process and no action by the defendant is necessary to make them active in his or her case.” In sum, the Confrontation Clause is self-executing; the accused cannot be required to invoke it.

Shifting burden of proof
In Wigglesworth v. Oregon, 49 F.3d 578, 581 (9th Cir. 1995), the Ninth Circuit reviewed an Oregon statute that not only made a drug lab report admissible, but also “prima facie evidence” of the reported results. Although the statute recognized the defendant’s right to subpoena the criminalist, the court concluded that this procedure “places the defendant in a ‘Catch 22’ situation—call the criminalist who prepared the report during the defendant’s own case, and possibly bolster the prosecution’s case, or forego examination of the criminalist and perhaps lose an opportunity to expose a defect in the report’s authenticity.” The court found a due process violation: “[T]he only way Wigglesworth could challenge the lab report was to pursue a course of action which carried with it the substantial risk of assisting the prosecution in establishing the report’s authenticity. This effectively relieved the state of its burden of proof on an essential element of its case, and denied Wigglesworth due process . . . .” After Wigglesworth’s trial, this defect was eliminated when the Oregon Supreme Court interpreted the statute as requiring the prosecution, upon defense request, to call the criminalist during its own case. (State v. Hancock, 854 P.2d 926, 929 (Or. 1993).) Nevertheless, the confrontation issue remains.

Hospital records
Prior to Crawford, the “majority rule among state courts [were] that drug or alcohol tests performed in the usual course of business of a hospital are admissible in criminal cases under the business records exception.” (Baber v. State, 775 So. 2d 258, 261 (Fla. 2000) (citing cases).) In Baber, the Florida Supreme Court distinguished hospital blood analysis reports, made for medical reasons, and government reports prepared for litigation: “[T]he alcohol test result being admitted in the instant case was performed by a hospital, which did not have an interest in the outcome of the future criminal case lodged against the defendant.” (Id. at 262. See also Ex parte Dep’t of Health and Environmental Control, 565 S.E.2d 293, 297 (S.C. 2002) (“HIV tests taken for purposes of medical diagnosis before any charges are pending are trustworthy and should be admitted as business records without a chain of custody.”; noting that a retest at any time was possible).
The results reached in these cases may be the same after Crawford—albeit under a different rationale. If the report is prepared for nonlitigation reasons, it may not be testimonial. At this point, however, this is mere speculation.

Analyst testifies
There is no constitutional impediment if the examiner who prepared the report testifies (i.e., the witness and the declarant are the same person), because the opportunity for cross-examination is provided at trial. In other words, California v. Green, 399 U.S. 149 (2003), which recognized this principle, remains intact according to Crawford, 124 S. Ct. at 1369 n.9.
In-court testimony also changes the analysis under the FRE. Some courts disagree in part with Oates and hold that Congress intended to exclude public reports only when offered in lieu of the testimony of the declarant. According to these courts: “The accompanying testimony of the author minimizes the danger of unreliability by giving the trier of fact the opportunity to weigh his credibility and consider the circumstances surrounding preparation of the report.” (United States v. King, 613 F.2d 670, 673 (7th Cir. 1980) (Social Security forms admitted as business records where the preparers testified). Accord United States v. Sokolow, 81 F.3d 397 (3d Cir. 1996); United States v. Hayes, 861 F.2d 1225 (10th Cir. 1988) (IRS computer data); United States v. Picciandra, 788 F.2d 39 (1st Cir. 1986) (recorded recollections of DEA agent admitted where he testified); United States v. Sawyer, 607 F.2d 1190 (7th Cir. 1979) (recorded recollections of IRS agent admitted where agent testified).)
Under this view, if a laboratory report qualifies as recorded recollection, an exception that requires the declarant to testify, or as a business record and the declarant also testifies, the report is admissible. In United States v. Coleman, 631 F.2d 908, 914–15 (D.C. Cir. 1980), for instance, the D.C. Circuit upheld the admission of DEA chemical analysis forms where the examining chemist testified.

Refreshing recollection
The confrontation issue is also avoided if the analyst uses the laboratory report merely to refresh his or her recollection. (See United States v. Franklin, 747 F.2d 497, 498 (8th Cir. 1984) (chemists refreshed recollection prior to trial by reviewing reports prepared at the time cocaine tested).) In this situation, the analyst’s in-court testimony and not the laboratory report is the evidence. The report may be introduced in evidence for impeachment only if offered by the opposing party. (FED. R. EVID. 612.)

Authentication
The admission of a laboratory report in lieu of the analyst’s testimony may present other evidentiary issues. In addition to laying a foundation for a hearsay exception, the report must be authenticated. (See State v. Kraft, 341 A.2d 373, 374 (N.J. Super. 1975) (lab report not authenticated).) Since, however, most laboratory reports are prepared by government laboratories, they often qualify as self-authenticating documents and thus may be admitted without the testimony of an authenticating witness. (See FED. R. EVID. 902; United States v. Davis, 14 M.J. 847, 849 n.2 (A.C.M.R. 1982) (“A laboratory report may also be admitted as an official record when it is accompanied by an authenticating certificate.”).)
Nevertheless, these provisions may not be enough. In United States v. Le, 272 F.3d 530, 531–32 (8th Cir. 2001), the prosecution attempted to prove the nature of a controlled substance through the testimony of the case agent, who proffered a laboratory report identifying the analyzed chemical as methamphetamine. The report was rejected: “The record shows that the case agent was not trained or qualified as a chemist, nor was he an employee of the laboratory or the custodian of its records. He had no knowledge of the laboratory’s analytical methods and knew nothing of its operational processes. Defense counsel properly objected to this evidence, claiming improper foundation.”

Conclusion
Crawford is one of the most important criminal procedure cases the Supreme Court has decided in recent years. As the lower courts struggle to comply with its prescriptions, the admissibility of lab reports will no doubt continue to be litigated. If, as the Court says, the Confrontation Clause was primarily concerned with the use of ex parte affidavits at trial, it can be argued that a lab report is nothing but the affidavit of an expert.
Moreover, the Court has often highlighted the importance of cross-examining experts. In Daubert, the Court noted that “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” (Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 596 (1993) (citing Rock v. Arkansas, 483 U.S. 44, 61 (1987).)



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