Introductory Note
In Crawford v. Washington, 541 U.S. 36, 54 (2004), the United States Supreme Court explained that the Sixth Amendment expressed the common-law right of the defendant in a criminal case to confrontation, and that it was subject only to those exceptions that existed at the time of the amendment's framing in 1791. As a result, the Supreme Court held that "testimonial statements" of a witness for the government in a criminal case who is not present at trial and subject to cross-examination are not admissible unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. Id. at 53-54. Accord Commonwealth v. Gonsalves, 445 Mass. 1, 14 (2005), cert. denied, 548 U.S. 926 (2006) ("constitutional provision of the confrontation clause trumps [our own] rules of evidence"). In Commonwealth v. Lao, 450 Mass. 215, 223 (2007), the Supreme Judicial Court held that "the protection provided by art. 12 is coextensive with the guarantees of the Sixth Amendment to the United States Constitution."
The Supreme Judicial Court has expressed the following analytical approach to determine whether out-of-court statements constitute admissible evidence:
"When the Commonwealth offers an out-of-court statement in a criminal case, the evidentiary and potential confrontation clause issues can prove challenging. The following conceptual approach may be helpful: First, is the out-of-court statement being offered to establish the truth of the words contained in the statement? In other words, is the out-of-court statement hearsay? If the out-of-court statement is offered for any purpose other than its truth, then it is not hearsay and the confrontation clause is not implicated. Second, if the evidence is hearsay, does the statement fall within an exception to the rule against hearsay? Third, if the hearsay falls within an exception, is the hearsay 'testimonial'? Fourth, if the hearsay is testimonial, has the out-of-court declarant been previously subject to cross-examination and is the out-of-court declarant 'unavailable' as a matter of law, such that the testimonial hearsay does not offend the confrontation clause?"
Commonwealth v. Caruso, 476 Mass. 275, 295 n.15 (2017).
" [I]nterrogations that begin as nontestimonial can 'evolve into testimonial' interrogations" and are unlikely to shift back. Commonwealth v. Rand, 487 Mass. 811, 818 (2021), quoting Michigan v. Bryant, 562 U.S. 344, 365 (2011).
The United States Supreme Court has noted that under the primary purpose test, "[s]tatements by very young children will rarely, if ever, implicate the Confrontation Clause." Ohio v. Clark, 576 U.S. 237, 247-248 (2015). The Supreme Judicial Court has remarked that statements contained in hospital records are not testimonial when the records "demonstrate, on their face, that [the statements] were included for the purpose of medical treatment." Commonwealth v. Irene, 462 Mass. 600, 618 (2012).
The following factors are relevant to an analysis under the primary purpose test.
"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 police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution."
In Michigan v. Bryant, 562 U.S. 344, 363-366 (2011), the Supreme Court held that "whether an emergency exists and is ongoing is a highly context-dependent inquiry" and explained that "'a conversation which begins as an interrogation to determine the need for emergency assistance' can 'evolve into testimonial statements,'" and "[a] conversation that begins with a prosecutorial purpose may nevertheless devolve into nontestimonial statements if an unexpected emergency arises."
In Commonwealth v. Beatrice, 460 Mass. 255, 259-260 (2011), and Commonwealth v. Smith, 460 Mass. 385, 392-393 (2011), both decided after Michigan v. Bryant, the Supreme Judicial Court identified a nonexhaustive list of factors relevant to determining whether an ongoing emergency exists at the time a declarant makes statements to a law enforcement agent:
- whether an armed assailant poses a substantial threat to the public at large, the victim, or the responding officers;
- the type of weapon that has been employed;
- the severity of the victim's injuries;
- the formality of the interrogation;
- the involved parties' statements and actions; and
- whether the victim's safety is at substantial imminent risk.
See Beatrice, 460 Mass. at 260-262; Smith, 460 Mass. at 393-394. See also Commonwealth v. Middlemiss, 465 Mass. 627, 635-636 (2013) (applying Beatrice factors to statements shooting victim made to 911 operator).
In Michigan v. Bryant, 562 U.S. 344, 366 (2011), the Supreme Court additionally explained that "whether an ongoing emergency exists is simply one factor-[although] an important factor-that informs the ultimate inquiry regarding the 'primary purpose' of an interrogation." "[T]here may be other circumstances, aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony." Id. at 358.
The statements of a declarant and the actions of both the declarant and interrogators also provide objective evidence of the interrogation's primary purpose. Id. at 367. The Supreme Court explained that looking to the content of both the questions and the answers is an important factor in the primary purpose test because both interrogators and declarants may have mixed motives. Id. Police officers' dual responsibilities as both first responders and criminal investigators may lead them to act with different motives simultaneously or in quick succession. Id. Likewise, during an ongoing emergency, victims may make statements they think will help end the threat to their safety but may not envision these statements being used for prosecution. Id. Alternatively, a severely injured victim may lack the ability to have any purpose at all in answering questions. Id. The inquiry is still objective, however, and it focuses on the understanding and purpose of a reasonable victim in the actual victim's circumstances, which prominently include the victim's physical state. Id.
In Melendez-Diaz v. Massachusetts, 557 U.S. 305, 306-309 (2009), the Supreme Court explicitly rejected the idea that an analyst's testimony was the only way to prove the chemical composition of a substance. In Commonwealth v. MacDonald, 459 Mass. 148 (2011), the Supreme Judicial Court stated as follows:
"Melendez-Diaz stands for the proposition that if a certificate of drug analysis is used, it must be accompanied by the testimony of an analyst so that the defendant's right to confrontation is preserved. However, nowhere does the decision state that where . . . a prosecutor uses the opinion testimony of an expert to establish the composition of a drug, that testimony requires corroboration.... A prosecutor's decision to proceed without a certificate of drug analysis does not violate the holding in Melendez-Diaz."
Id. at 155-156.
In Commonwealth v. Zeininger, 459 Mass. 775 (2011), the Supreme Judicial Court held that statements contained in an annual certification and accompanying diagnostic records, attesting to the proper functioning of a breath-testing machine used to test the defendant's blood alcohol content, were not testimonial, and that the defendant's confrontation rights were not violated by the admission of the certification and records without the live testimony of the technician who had performed the certification test on the machine. Id. at 788-789. The critical distinction that "ma[de] all the difference" was that the certificate of analysis in Melendez-Diaz resembled "the type of 'ex parte in-court testimony or its functional equivalent' at the nucleus of the confrontation clause" because it was particularized and performed in aid of a prosecution seeking to prove the commission of a past act, while the Office of Alcohol Testing certification records were generalized and performed prospectively in primary aid of the administration of a regulatory program. Id., quoting Crawford, 541 U.S. at 51-52.
In Bullcoming v. New Mexico, 564 U.S. 647 (2011), the United States Supreme Court decided five to four that a blood alcohol analysis report, which certified that the defendant's blood alcohol concentration was well above the threshold for aggravated driving while intoxicated under New Mexico law, and which was introduced at trial through the testimony of an analyst who had not performed the certification, was testimonial within the meaning of the confrontation clause. The Supreme Court found that the laboratory report in Bullcoming resembled those in Melendez-Diaz "[i]n all material respects." Id. at 664.
In Commonwealth v. Parenteau, 460 Mass. 1 (2011), the Commonwealth introduced in evidence a certificate from the Registry of Motor Vehicles attesting that a notice of license suspension or revocation was mailed to the defendant; the Commonwealth did not present any testimony from a witness on behalf of the registry. The Supreme Judicial Court held that the certificate was testimonial in nature and that its admission without testimony from the preparers violated the confrontation clause. Id. at 8-9. The court explained that one "must examine carefully the purpose for which [a document is] created" when "determining the admissibility of a particular business record." Id. at 10. In Parenteau, the business record was created two months after the criminal complaint was issued and therefore was "plainly" created to establish an element of the statutory offense at trial. Id. at 8. Importantly, the court noted that "[i]f such a record had been created at the time the notice was mailed and preserved by the registry as part of the administration of its regular business affairs, then it would have been admissible at trial." Id. at 10. See also Commonwealth v. Ellis, 79 Mass. App. Ct. 330(2011).
The admission of a properly completed and returned G. L. c. 209A return of service absent the testimony of the officer who completed it does not violate a defendant's confrontation clause rights. Commonwealth v. Shangkuan, 78 Mass. App. Ct. 827, 833-834, 837(2011) ("[T]he primary purpose for which the return of service in this case was created is to serve the routine administrative functions of the court system, ensuring that the defendant received the fair notice to which he is statutorily and constitutionally entitled . . ., establishing a time and manner of notice for purposes of determining when the order expires or is subject to renewal, and assuring the plaintiff that the target of the order knows of its existence. The return of service here was not created for the purpose of establishing or proving some fact at a potential future criminal trial."). See also Commonwealth v. Bigley, 85 Mass. App. Ct. 507, 515-516(2014) (defendant's Registry of Motor Vehicles record may be admitted without testimony as it is an automatically generated list regularly maintained by registry in the administration of its regular business affairs); Commonwealth v. Fox, 81 Mass. App. Ct. 244, 246(2012) (sexual offender registry records are admissible as business records without violation of confrontation clause because they are not created to prove fact at trial). In Commonwealth v. Carr, 464 Mass. 855, 876 (2013), the Supreme Judicial Court held that a statement by the medical examiner in the death certificate that the victim's death was the result of a "gunshot wound of the head with fracture of the skull and perforation of the brain" was testimonial based on the obvious purpose for which it will be used in the case of a homicide and the statutory duties of the medical examiner. Id. at 876.
In Commonwealth v. Barbosa, 457 Mass. 773, 785-787 (2010), cert. denied, 563 U.S. 990 (2011), the Supreme Judicial Court held that Melendez-Diaz does not "purport to alter the rules governing expert testimony" and does not, therefore, forbid one expert from testifying and offering an opinion on the basis of an examination of tests performed and data collected by others, so long as the witness does not testify to the details of the hearsay on direct examination. See also Commonwealth v. Phim, 462 Mass. 470, 479 (2012), and Commonwealth v. Greineder, 458 Mass. 207, 235-239 (2010), vacated and remanded in light of Williams v. Illinois, 567 U.S. 50 (2012).
In Bullcoming v. New Mexico, 564 U.S. 647 (2011), the United States Supreme Court held five to four that admission in evidence of a blood alcohol analysis report, which certified that the defendant's blood alcohol concentration was well above the threshold for aggravated driving while intoxicated under New Mexico law, and which was introduced at trial through the testimony of an analyst who had not performed the certification, violated the confrontation clause. The Supreme Court found that the laboratory report in Bullcoming resembled those in Melendez-Diaz "[i]n all material respects." Id. at 664.
In Commonwealth v. Munoz, 461 Mass. 126, 132 (2011), vacated and remanded in light of Williams v. Illinois, 567 U.S. 50 (2012), the Supreme Judicial Court opined that Bullcoming did not call Barbosa into question. In Munoz, the court affirmed the distinction between a substitute analyst's permissible testimony as to independent opinions based on data generated by a nontestifying analyst and a substitute analyst's impermissible testimony as to the testing analyst's reports and conclusions.
Several days after the decision in Munoz, the United States Supreme Court held five to four that the testimony of a forensic specialist identifying a match between the defendant's blood sample and a DNA sample taken from the victim's vaginal swab was admissible even where the specialist did not work for the outside lab that had produced the DNA sample. Williams, 567 U.S. at 56. Writing for four Justices, Justice Alito found that the specialist's testimony regarding the DNA match was not admitted for its truth, but for the limited purpose of explaining the basis for her own independent expert opinion. Id. at 72. In the opinion of the same four Justices, the underlying DNA report was nontestimonial since it was prepared to catch an unknown rapist who was still at large, not for the primary purpose of accusing a targeted individual. Id. at 84. In a concurrence, Justice Thomas found no confrontation clause violation because the underlying DNA report lacked "the requisite 'formality and solemnity' to be considered 'testimonial' for purposes of the confrontation clause." Id. at 103 (Thomas, J., concurring). In dissent, Justice Kagan, joined by three other Justices, found the DNA report to be precisely the sort of testimonial evidence barred by the decisions in Melendez-Diaz and Bullcoming. Id. at 133-135, 140-141 (Kagan, J., dissenting).
In Commonwealth v. Greineder, 464 Mass. 580, 592-602 (2013), on remand from the United States Supreme Court, the Supreme Judicial Court affirmed its earlier ruling. In that case, the testifying DNA analyst was not the analyst who had performed the tests and written the report on which her opinion testimony was based, although she was the forensic laboratory director of the same company. The court reasoned that Massachusetts evidence law, which permits opinion testimony that is based on data that is hearsay, but prohibits the admission of such a hearsay basis on direct examination of the expert, provides the defendant with more protection than the confrontation clause as interpreted by the United States Supreme Court in Williams v. Illinois, 567 U.S. 50 (2012), especially where, as here, the expert was able to be meaningfully cross-examined on the reliability of the testing procedures that produced the data underlying her opinion.
Two years later, in Commonwealth v. Jones, 472 Mass. 707, 713-715 (2015), the Supreme Judicial Court reversed a conviction based on testimony of a DNA expert as to the location on the victim's body from which the DNA samples had been collected, where the DNA expert's knowledge of how the DNA samples had been gathered was derived from a form completed by the nurse who had collected the specimens from the victim's body. The court concluded that this violated two principles of Greineder: one, the expert may not testify to hearsay on direct examination, and two, the expert must have the capacity to be meaningfully cross-examined about the reliability of the underlying data.
See also G. L. c. 278, § 16D (courts may order the use of a "suitable alternative procedure" to take the testimony of a child witness, including recording on videotape or simultaneous electronic transmission, upon a finding that testifying in open court or before the defendant will likely traumatize the child witness).
Defendants do not waive their right, under the confrontation clause, to exclude testimonial hearsay, or otherwise open the door to its admission, merely by making it relevant to their defense. See Hemphill v. New York, 142 S. Ct. 681, 692 (2022) (by eliciting undisputed evidence that police had recovered ammunition of same caliber as murder weapon from another suspect's apartment, defendant did not waive his right to exclude other suspect's guilty plea allocution to possession of different caliber gun, which prosecution contended was necessary to correct a misleading impression, where other suspect was not available for cross-examination).