In the 2004 case of Crawford v. Washington, (1) the Supreme Court dramatically altered its interpretation of the Sixth Amendment's Confrontation Clause, overruling Ohio v. Roberts (2) and barring the admission of "testimonial" out-of-court statements in criminal trials. (3) While many observers celebrated the decision, (4) courts have since grappled with the question of which statements qualify as "testimonial." (5) Recently, in People v. Lopez, (6) the Supreme Court of California attempted to clarify this unsettled area of law by articulating a two-pronged inquiry that looks to both the formality and the primary purpose of an out-of-court statement to determine if it is testimonial. Under this two-pronged approach, the court found the forensic evidence at issue in the case to be insufficiently formal to qualify as testimonial, and thus held that its admission at trial did not violate the defendant's Confrontation Clause rights. While the Lopez court was correct to note that both formality and purpose are important considerations in determining whether a statement is testimonial, a better approach would have been to articulate a singular primary-purpose inquiry that treats formality as just one important indication of that purpose. Such an approach would have been both more faithful to the Supreme Court's Confrontation Clause jurisprudence and analytically preferable in confronting the unique Sixth Amendment hurdles that forensic evidence presents.
In 2009, five years after the Crawford Court expressly reserved the question of which out-of-court statements qualify as "testimonial" under the Confrontation Clause, (7) the Court raised the stakes of that debate with its holding in Melendez-Diaz v. Massachusetts, (8) which extended Crawford's reach to forensic evidence by barring the admission at trial of "testimonial" lab reports prepared by out-of-court analysts. (9) Although this holding was consistent with the Court's newly developed purpose-driven approach to confrontation, (10) the holding in Melendez-Diaz has since forced the Court to confront pragmatic concerns regarding the exclusion of highly probative scientific data. (11) Those competing interests culminated in last Term's Williams v. Illinois, (12) which generated three distinct Confrontation Clause approaches, none of which managed to garner majority support. (13) Last October, the Supreme Court of California had the opportunity to address this muddled area of constitutional law in Lopez.
In August 2007, while driving under the influence of alcohol, Virginia Lopez lost control of her vehicle and struck the driver's side of a passing pickup truck, killing the driver inside. (14) Approximately two hours after the accident, hospital staff drew two vials of Lopez's blood for blood alcohol testing, which confirmed that she had a blood alcohol content of 0.09%. (15) Lopez was charged with vehicular manslaughter while intoxicated, (16) but the technician who conducted her blood alcohol analysis, Jorge Pena, did not testify at her jury trial. (17) Instead, a colleague of Pean's testified in his place and, over Lopez's objection, stated that Pean's report confirmed a blood alcohol concentration of 0.09% and that his "separate abilities as a criminal analyst" led him to the same conclusion. (18) Based on that testimony, Lopez was convicted and sentenced to two years in prison. (19)
The California Court of Appeal affirmed Lopez's conviction, finding that Pena produced his report "in the course of a regularly conducted business activity rather than as testimony in preparation for trial" and therefore that the report was not a testimonial statement triggering the protections of the Confrontation Clause. (20) Six weeks after that decision, however, the U.S. Supreme Court handed down its decision in Melendez-Diaz and, in light of that decision, the Supreme Court of California granted Lopez's petition for review and transferred her case back to the Court of Appeal for reconsideration. …