	Background

The Sixth Amendment to the United States Constitution includes fundamental procedural protections for criminal defendants, among them the guarantee that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." Historically, the U.S. Supreme Court interpreted the Confrontation Clause as being more or less compatible with evidentiary rules governing out-of-court statements. In 1979, in Ohio v. Roberts , the Court expressed the view that evidence that fit within a hearsay exception or had analogous "particularized guarantees of trustworthiness" would also "comport with the substance" of the Confrontation Clause; hearsay rules and the Confrontation Clause were generally designed to protect similar values and stemmed from the same roots. However, in a landmark 2004 decision, Crawford v. Washington, the Court overruled Roberts. The Crawford decision introduced a new standard for Confrontation Clause analysis: testimonial versus nontestimonial statements. In the U.S. Supreme Court's 2010-2011 term, two cases were handed down which are significant post- Crawford interpretations of the Clause. One case, Michigan v. Bryant , held that admitting into evidence a dying man's statements to police officers about his assailant did not violate the Confrontation Clause—not through the "dying declaration" exception, but because they were made to assist law enforcement officers in an "ongoing emergency" and were therefore "nontestimonial." The other, Bullcoming v. New Mexico , addressed the prosecution's use of forensic laboratory reports. It concluded that the Confrontation Clause requires the laboratory analyst who performed the test to appear at trial and confront the defendant in person. This report examines these decisions in the context of the Court's relatively new Confrontation Clause jurisprudence. It considers their implications for admissibility of evidence in criminal prosecutions. After an exhaustive survey of the right of confrontation from Roman times through the 17 th -century English common law and continental civil law, the Court concluded that the Framers of the Constitution intended that, where out-of-court testimonial evidence is at issue, the Sixth Amendment demands, at a minimum, that a witness be both unavailable at trial and that the defendant had a prior opportunity for cross-examination. The Court concluded that the Framers viewed "testimonial" evidence as including solemn declarations made for the purpose of establishing or proving some fact in a context that the declarant would reasonably expect to be used prosecutorially. 541 U.S., at 54.
The Sixth Amendment to the United States Constitution includes the guarantee that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him."
Historically, the U.S. Supreme Court interpreted the Confrontation Clause as being more or less compatible with evidentiary rules governing out-of-court statements. In 1979, in Ohio v. Roberts, 448 U.S. 56, the Court expressed the view that evidence that fit within a hearsay exception or had analogous "particularized guarantees of trustworthiness" would also "comport with the substance" of the Confrontation Clause; hearsay rules and the Confrontation Clause were generally designed to protect similar values and stemmed from the same roots.
However, in a landmark 2004 decision, Crawford v. Washington, 541 U.S. 36, the Court overruled Roberts. The Crawford decision introduced a new standard for Confrontation Clause analysis: testimonial versus nontestimonial statements. The Court concluded that the Framers of the Constitution intended that, where introduction of out-of-court testimonial evidence is at issue, the Sixth Amendment demands, at a minimum, that a witness be both unavailable and that the defendant had a prior opportunity for cross-examination. Testimonial evidence, though not fully defined by the Court, includes solemn declarations made for the purpose of establishing or proving some fact in a context that the declarant would reasonably expect to be used prosecutorially. When a court determines that an out-of-court statement is "testimonial," it may not be admitted into evidence under any traditional hearsay exceptions if the declarant is unavailable to testify, unless the defendant had a prior opportunity to cross-examine.
In the U.S. Supreme Court's 2010-2011 term, two cases were handed down which are significant post-Crawford interpretations of the Clause. One case, Michigan v. Bryant, 131 S. Ct. 1143 (2011), held that admitting into evidence a dying man's statements to police officers about his assailant did not violate the Confrontation Clause—not through the "dying declaration" exception to hearsay, but because they were made to assist law enforcement officers in an "ongoing emergency" and were therefore "nontestimonial." The other, Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011), addressed the prosecution's use of forensic laboratory reports. It concluded that the Confrontation Clause requires the laboratory analyst who performed the test to appear at trial and confront the defendant in person.
This report examines these decisions in the context of the Court's relatively new Confrontation Clause jurisprudence. It considers their implications for admissibility of evidence in criminal prosecutions.