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Confronting scientific tests.

Article Excerpt
In Melendez-Diaz v. Massachusetts, (1) which will be decided this term, the Supreme Court will face one of the most difficult issues presented by an earlier decision, Crawford v. Washington, which concerned the testimonial/ nontestimonial approach to a defendant's Sixth Amendment right to confrontation. (2)

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In Crawford, the Court held that if hearsay testimony offered against the defendant at trial is "testimonial," then the defendant has a right to cross-examine the declarant; if the witness is unavailable, the testimony cannot be used. But if the statement is "nontestimonial," the defendant has no right to cross-examine and the statement may be used. In Melendez, the Court will decide which category the results of scientific tests fall into.

Crawford did not spell out the details of the distinction between testimonial and non-testimonial, but it did offer initial guidelines:

Whatever else the term "testimonial" 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. (3)

In 2006, the Court set out to better explain this distinction in the combined cases of Davis v. Washington and Hammon v. Indiana. (4) In those cases, the Court concluded that the contents of a 911 call were nontestimonial and could be used at trial. But a statement given to police officers after the emergency was over was testimonial, and its use was a violation of the defendant's Sixth Amendment rights.

The Court explained:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable...

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