The Test Results Said What? the Post-Crawford Admissibility of Hearsay Forensic Evidence

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This Article outlines the current questions surrounding the admissibility of hearsay forensic results (including lab reports, autopsies, and certifications), and thoroughly documents the extensive development of quarreling factions among state and federal courts of last resort in answering these questions. Further, the Article considers the constitutionality and desirability of state notice-and-demand statutes, which work to obtain a waiver of the defendant's Confrontation Clause rights where the methodology and substantive accuracy of the forensic report's contents are not in dispute. The Article proposes a two-part comprehensive resolution that respects both defendants' constitutional rights and the practical constraints on the State's ability to regularly present its experts for cross-examination. Simply put, this solution would recognize the majority of forensic hearsay documents as testimonial (and thus trigger defendants' Confrontation rights), but would temper the practical consequences through waiver statutes, carefully constructed to avoid unduly burdening defendants' exercise of their constitutional rights.

1. INTRODUCTION

The traditional paradigm of evidence law has long struggled to accommodate the State's use of hearsay evidence while recognizing the extent to which any such concession may undercut rights stemming from the Confrontation Clause of the Sixth Amendment. Under the ambit of both federal and state law, prosecutors have routinely succeeded in admitting a wide range of hearsay forensic evidence, including the results of blood tests, compound analyses, and autopsies, all without ever calling to the stand the doctors or lab technicians who conducted those tests. The Supreme Court's recent decision in Crawford v. Washington, (1) holding that the admission of "testimonial" hearsay evidence violates the Confrontation Clause, dramatically upset that evidentiary landscape. Varying interpretations of "testimonial" by courts have led to an unacceptable incongruity in the administration of federal constitutional law: In some states, prosecutors may admit the aforementioned test results in the declarant's absence; in others, defendants have gained a forceful weapon with which to challenge the State's evidence.

Part II of this article recites the pre-Crawford framework for admission of hearsay forensic results, details the Crawford decision and the impetus behind it, and examines the Court's sole post-Crawford disquisition on the meaning of "testimonial."

Part III outlines the current questions surrounding the admissibility of varied hearsay forensic results. Such points of dispute include the relevance of the declarant's knowledge that test results might or will be used in a future criminal prosecution; the applicability of the business records and public records hearsay exceptions; the role of public policy and "trustworthiness" of forensic test results in these debates; and ultimately, the differences in "testimonial" quality, if any, of such varied forensic tests as lab reports, autopsy reports, and Breathalyzer certifications. Also, this part documents the development of quarreling factions among state and federal courts of last resort, as well as among legal scholars, in answering these questions.

Part IV considers the constitutionality and desirability of state notice-and-demand statutes, which generally work to obtain a waiver (phrased more aggressively, forfeiture) of defendants' Confrontation Clause rights in cases where the methodology and substantive accuracy of the forensic report's contents, as well as the credibility of the absent expert, are not in apparent dispute.

Finally, Part V proposes a two-part comprehensive solution that respects both defendants' constitutional rights and the practical constraints on the State's ability to regularly present its experts for cross-examination.

II. BACKGROUND

A. THE PRE-CRAWFORD HEARSAY FRAMEWORK Legal scholars have long debated the interplay between the "evidentiary hearsay rule" (2) and the Sixth Amendment's Confrontation Clause, (3) with most recognizing not only that the two share an underlying concern about the reliability of out-of-court statements, but also that the former is informed and mandated at least to some extent by the latter. …