Bullcoming and Cold Cases: Reconciling the Confrontation Clause with DNA Evidence


In Crawford v. Washington,[1] the Supreme Court radically transformed Confrontation Clause doctrine.[2] Immediately after Crawford, commentators predicted dire consequences for criminal prosecutions.[3] These predictions have been renewed after each refinement of Crawford’s doctrine.[4] So far, however, the sky has not fallen, because prosecutors and courts have managed to reconcile Crawford’s robust confrontation rights with the practical imperatives of criminal prosecution.[5]

This Essay argues that the Court’s recent decision in Bullcoming v. New Mexico[6] threatens the uneasy balance between prosecutorial needs and the Crawford line. Specifically, Bullcoming could be used to exclude DNA database evidence in prosecuting cold cases.[7] DNA evidence has been used in criminal prosecutions for only a few decades, but it has revolutionized criminal justice during that time.[8] DNA evidence has been particularly important for prosecuting rape cases,[9] which historically have low conviction rates.[10] Prosecutors should therefore be concerned that they might lose an essential tool for prosecuting rape cases and seeking justice for victims. Defense attorneys have a stake, too. When prosecutors lose access to DNA evidence, they are more likely to turn to less reliable eyewitness testimony and circumstantial evidence.[11]

I argue that state legislatures and Congress[12] can ensure that DNA evidence is available in cold-case prosecutions while simultaneously respecting defen­dants’ post-Crawford confrontation rights. Specifically, both state and federal policy makers should alter rules of evidence to include decades-old DNA database evidence under ancient document exceptions to hearsay rules.

This Essay proceeds in three parts. Part I explains the Crawford line’s Confrontation Clause doctrine. Part II discusses the Court’s most recent Confrontation Clause decision, Bullcoming v. New Mexico, and describes the problems that Bullcoming poses for using DNA evidence in cold cases. Part III argues for changing evidentiary rules to resolve the conflict between the Confrontation Clause and cold-case prosecutions.

I.       The Confrontation Clause: Crawford’s Revolution

The Confrontation Clause of the Sixth Amendment guarantees to criminal defendants the right “to be confronted with the witnesses against [them].”[13] The thorniest issue concerning the Confrontation Clause is its application to hearsay: When does the Clause prohibit the introduction of out-of-court statements against a criminal defendant?[14] The Court comprehensively treated that question for the first time in Ohio v. Roberts.[15] Roberts established a reliability test for Confrontation Clause challenges,[16] but the Roberts approach was widely criticized as vague and inadequate to protect defendants’ rights.[17]

Crawford v. Washington overturned Roberts[18] and built a new Confrontation Clause doctrine upon an originalist analysis of the Sixth Amendment.[19] The Crawford opinion began by noting that the Confrontation Clause applies only to “witnesses” against the accused.[20] Thus, hearsay raises Confrontation Clause concerns only when a hearsay declarant acts as a witness. At the time of the Framing, a witness was defined as a person who “b[ore] testimony.”[21] The Confrontation Clause therefore applies to hearsay only when the declarant bears testimony—or as the Court put it, when the hearsay statement is “testimonial.”[22] Under Crawford, the government may introduce testimonial hearsay against criminal defendants only where the declarant testifies during the trial or hearing, or where the defendant had a prior opportunity to cross-examine an unavailable declarant.[23]

The Crawford Court did not comprehensively define testimonial statements,[24] but it did provide some guidance to lower courts. Testimonial statements almost certainly include “ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine or similar pretrial statements … .”[25] Although the Court has subsequently elaborated on the definition of testimonial statements,[26] the category remains very much in flux.[27]

Lower courts faced an immediate challenge in applying Crawford to forensic analyses. Although courts were divided on the issue,[28] a majority of states found that laboratory reports and certificates of analysis were not testimonial statements under Crawford.[29] In Melendez-Diaz v. Massachusetts,[30] the Supreme Court sided with the minority of states, holding that “affidavits reporting the results of forensic analysis” were testimonial.[31]

In Melendez-Diaz, the prosecution sought to introduce a laboratory analysis showing that a substance possessed by the defendant was cocaine.[32] The evidence took the form of “certificates of analysis”—sworn statements reporting the results of laboratory tests—introduced without a witness.[33] Melendez-Diaz rejected several arguments for classifying forensic analyses as nontestimonial: that forensic analyses are not “accusatory” but merely descriptive,[34] that laboratory analysts are not “conventional” witnesses against the accused that the Framers would have recognized,[35] and that forensic analyses are less prone to manipulation or deceit than other testimony.[36] With its broad reasoning, Melendez-Diaz swept most forensic analyses into the ambit of the Confrontation Clause.[37]

Melendez-Diaz led to a new question concerning the Confrontation Clause: If forensic analyses are considered testimonial statements, who exactly bears the testimony contained in a forensic analysis? Put another way, who is the witness with whom a defendant must be confronted when the evidence at issue is a laboratory report? With traditional hearsay, the declarant is usually obvious. For example, if a recorded 9-1-1 call is hearsay, the declarant is the 9-1-1 caller. Yet laboratory results may contain statements from many different parties: a serologist who collects and classifies samples, several parties who perform different tests on a sample, different parties to calibrate and test the equipment, more parties who record the results, and perhaps a supervisor who oversees and certifies the analysis. As the dissent in Melendez-Diaz argued, requiring all of those parties to testify would hamstring the prosecution.[38] If, however, the Confrontation Clause were satisfied by the testimony of any one of those parties, then the confrontation guarantee would provide no assurance that a defendant could meaningfully cross-examine the witness responsible for handling a specific stage of the forensic analysis. The majority noted, in dicta, that many of the scientists would be involved in a forensic analysis only as part of the “chain of custody,” and so those scientists’ testimony would go to the weight, rather than the admissibility, of forensic results.[39] The Court returned to the “who” question in 2011.

II.     Bullcoming and the Cold-Case Problem

The Supreme Court used Bullcoming v. New Mexico to answer the question raised by Melendez-Diaz: Can the prosecution introduce a forensic laboratory report through the surrogate testimony of a scientist who did not certify or observe the tests without violating the Confrontation Clause?

Donald Bullcoming was arrested and charged with driving while intoxicated after he was involved in an automobile collision.[40] A local hospital drew a sample of Bullcoming’s blood, and the same was taken to a state laboratory for analysis.[41] Curtis Caylor, an analyst at the laboratory, tested the blood and concluded that Bullcoming’s blood-alcohol level was 0.21 grams per deciliter, which is above the minimum level required for charging aggravated DWI.[42] Caylor was later placed on administrative leave and did not testify at Bullcoming’s trial.[43] In Caylor’s place, the state offered the testimony of another analyst from the state laboratory who was familiar with the testing procedures and the science of blood-alcohol testing, but who had not participated in testing Bullcoming’s blood sample.[44]

Bullcoming rejected the state’s “surrogate testimony” as insufficient to satisfy the Confrontation Clause.[45] The Court reasoned that that Bullcoming could not adequately explore lies or mistakes in the testing unless he could cross‑examine Caylor.[46] Moreover, the Court found it irrelevant that the report used against Bullcoming was unsworn.[47] Although Melendez-Diaz had specifically addressed a sworn affidavit certifying test results, the Court noted that limiting the Confrontation Clause to formal sworn statements “would make the right to confrontation easily erasable.”[48] Thus, where forensic analyses are concerned, the Court held that “the analysts who write reports that the prosecution introduces must be made available for confrontation … .”[49]

Although the Bullcoming Court acknowledged that its holding would burden future prosecutions, it offered several reasons that the burden would be relatively small. First, states could use notice-and-demand statutes when defendants seek to confront certifying analysts rather than surrogate analysts.[50] Second, sample preservation would facilitate retesting by a new analyst if the original analyst was unavailable to testify.[51] Finally, analysts would rarely need to testify because most criminal cases do not proceed to trial.[52]

Yet in the context of cold cases built on DNA database evidence, Bullcoming may have more troubling consequences than the majority realized. Cold cases are problematic because the scientist or scientists who “sign[ed] the certification or perform[ed] or observe[d] the test”[53] may be dead or unknown. The only evidence left may be a report, since the original DNA evidence might have been destroyed or degraded because of improper storage. Thus the state could not only be unable to satisfy Bullcoming’s requirement that the defendant be confronted with the analyst who performed the tests but also unable to retest the original sample. When the certifying analyst is dead or unknown, a smart defense attorney will demand a trial and exercise the client’s confrontation right, knowing that the state cannot meet its burden under Bullcoming by offering the testimony of a surrogate analyst.[54]

The cold-case problem has already presented itself. In Derr v. State, the Maryland Court of Appeals reversed the 2004 conviction of Norman Derr for a rape committed in 1984.[55] The state relied at trial on a 2002 profile of DNA collected after the rape.[56] The profile was based on a 1985 serological report by an unidentified biologist identifying and classifying physical evidence recovered from the rape.[57] The Derr court concluded that Derr’s Confrontation Clause rights had been violated because the unknown biologist and the analyst who created the 2002 profile did not testify.[58]

In some pre-Bullcoming cases, courts admitted DNA evidence to prosecute cold cases on grounds that are no longer valid after Bullcoming.[59] In some post‑Bullcoming prosecutions, cold-case convictions have been reversed, although the state may be able to retry at least some of the charges by presenting the testimony of the involved analysts.[60] Cold cases, in other words, occur with some regularity, and the circumstances that occurred in Derr will probably recur in the future. States and the federal government will need to create policies that admit DNA evidence in some cases while respecting defendants’ confrontation rights.


III.    Policy Solutions to the Cold-Case Problem

    Expert Testimony: The Williams v. Illinois Solution

Justice Sotomayor’s concurrence in Bullcoming called attention to an important factual nuance of the case. In Bullcoming, the state directly introduced Caylor’s report through the testimony of another analyst.[61] But Justice Sotomayor claimed that the result might have been different had the state instead offered the expert opinion of a different analyst based on Caylor’s report without introducing the testimonial report itself as evidence.[62]

Less than two weeks after deciding Bullcoming, the Court granted certiorari in Williams v. Illinois,[63] a case that squarely presents the issue that Justice Sotomayor raised in Bullcoming. Sandy Williams was convicted of aggravated sexual assault, aggravated kidnapping, and aggravated robbery.[64] The prosecution, following the approach that Justice Sotomayor would later describe in Bullcoming, attempted to prove that Williams’s DNA matched DNA recovered from the rape victim by using expert opinion testimony.[65] Rather than directly introducing the DNA profile generated from the rape victim, which had been prepared by a third‑party analyst, the state offered only the opinion of its expert witness that Williams’s DNA matched the profile.[66]

In Williams, the Court will decide the constitutionality of the prosecution’s expert testimony approach to forensic laboratory reports. Williams has argued that the Confrontation Clause is violated when the government in a criminal case introduces testimonial hearsay through the opinion of an expert who did not participate in the forensic analysis.[67] The State of Illinois has argued that the formalities of the Illinois Rules of Evidence should be respected: Because an expert witness does not reiterate or testify to the underlying forensic analysis, but instead offers an independent opinion about a laboratory report, the expert’s testimony does not violate the Confrontation Clause.[68] If the Court sides with Williams, which seems likely,[69] then the cold-case problem remains because the original laboratory analyst would have to testify to the results of any forensic analysis. Prosecutors will have to find ways other than expert opinion testimony to introduce DNA database evidence in cold cases.

Even a victory for Illinois could be problematic. The Court will probably not issue a sweeping holding that categorically permits testimonial DNA profiles to form the basis of expert opinion testimony. Instead, the Court would probably follow other Crawford-line cases favoring fact-intensive inquiries.[70] For example, testimonial forensic analyses could form the basis of expert opinion testimony without violating the Confrontation Clause only where those opinions depend entirely on machine outputs without human interpretation.[71] Under those circumstances, most DNA database evidence might be excluded. In rejecting a similar expert testimony argument in Derr, the Maryland Court of Appeals explained that the testifying analyst “relied on the serological examiner’s conclusion that sperm cells were present.”[72] Because the expert’s conclusions were not based on “raw data … which have not yet been subject to scientific testing,” her testimony was inadmissible under the Confrontation Clause.[73]

A different problem will emerge if Illinois prevails in a broad ruling. For example, the Court might create a forensic analysis exception to the Confrontation Clause,[74] or allow any scientific report to serve as the basis of expert opinion testimony.[75] A broad ruling would create a substantial loophole in Crawford’s confrontation right. Prosecutors would be able to introduce any forensic analysis without triggering the Confrontation Clause.[76] Defendants would lose the opportunity to cross-examine forensic analysts and expose bias, lack of qualifications, and manipulation of testing, even where those analysts could be produced to testify at trial. Policy makers concerned about protecting defendants’ rights could respond to such a holding by restricting the admissibility of DNA evidence or requiring analysts to testify in person. In doing so, policy makers would once again return to the question of how to make good use of powerful DNA evidence while also respecting the animating concerns of the Confrontation Clause.

    An Alternative Approach: The Ancient Document Exception

Policy makers should amend the ancient document exception to hearsay rules, which exists in the evidence rules of all fifty states and the federal government,[77] to apply to sufficiently old DNA evidence. By sufficiently old, I mean evidence analyzed at least a decade before the trial, and possibly earlier than that, as with the ancient document exception to the federal rules.[78] Amending the ancient document exception would allow prosecutors to use essential DNA evidence in cold cases without opening a general loophole in the Confrontation Clause. This approach is consistent with the Court’s originalist reasoning in Crawford and with the policy rationales underlying the Confrontation Clause.

Ancient document exceptions decline to exclude as hearsay statements contained in old documents—usually twenty to thirty years old.[79] The ancient document exception has a lengthy historical pedigree. It has been justified by the twin underpinnings of most hearsay exceptions: necessity and reliability. One court has referred to the ancient document exception as a “child[] of necessity” because the witnesses who could testify to the claims of an ancient document are probably “dead, or inaccessible.”[80] At the same time, statements in ancient documents may be more reliable than live testimony as “the passage of time tolls the memory and removes [orally transmitted statements] from the context in which they are made.”[81] Moreover, ancient documents are less likely to suffer from problems of “lack of candor, distortion … or even deliberate falsehood” because they are generally not produced in preparation for litigation.[82] Both the necessity and reliability justifications apply in the context of cold cases. The death or unknown identity of the original laboratory analyst makes it necessary to admit the documents without live testimony—otherwise forensic evidence might not be presented at all. At the same time, because forensic laboratory reports in cold cases are prepared before a suspect is ever arrested or indicted, there is no reason to fear prejudicial distortion or lack of candor by the analyst.

Changing the rules of evidence is important because some states limit the ancient document exception to certain types of documents.[83] In some states, the judiciary has further narrowed the scope of the ancient document exception.[84]

Admitting DNA evidence in cold cases through an ancient document exception is constitutionally acceptable. Crawford-line cases have recognized that certain testimonial statements are admissible despite the Confrontation Clause. Crawford embraced those exceptions because of historical pedigree—they were exceptions to the hearsay rules at the Founding.[85] Although the Court has not stated as much, the ancient document exception also dates to the time of the Framing.[86] Although historically the exception was most commonly used in resolving property disputes,[87] it was also applied to a wide variety of public and private documents.[88] Documents such as marriage certificates or wills that show the identity of children[89] are particularly important in relation to DNA because they embody the same characteristics of personal, identifying information. The views of the Framers are particularly significant because Crawford’s reasoning was so thoroughly originalist.[90] If admitting ancient documents did not offend the Framers’ understanding of the confrontation right, Crawford need not support excluding ancient documents under the Confrontation Clause.

Moreover, the rationales behind the ancient document exception dovetail with the policy rationales for the Confrontation Clause. Ancient documents are admissible because of the “affirmative nature of the want of bias of the declarant and of the trustworthiness of the declaration.”[91] The animating concern of the Confrontation Clause, and specifically behind Crawford’s distinction between testimonial and nontestimonial hearsay, is that statements made in anticipation of prosecution are vulnerable to manipulation and bias.[92] Only confrontation and cross-examination provide defendants with an opportunity to probe and expose that manipulation. But bias and manipulation are remote possibilities in cold cases and ancient documents, because a declarant does not know whom to falsely incriminate in order to give the prosecution an edge.

There are some legitimate responses to this proposal. First, one might argue that DNA evidence should not be used to revive old cases. But concerns about the elapsing of time are best addressed through changes to statutes of limitations. In many states, the statute of limitations might bar cold-case rape prosecutions.[93] If states do not prosecute cold cases, that decision should not be the product of chance circumstances, such as the death of an analyst or poor recordkeeping, which render reliable testimonial evidence inadmissible. Instead, prosecutorial decisions should depend on the considered judgments of policy makers that prosecutions ought not proceed after a certain amount of time has elapsed.

A second response is that even if cold-case DNA evidence is not tainted by bias, the analyst may have made inadvertent mistakes or used bad testing methods. It is difficult to see how cross-examination twenty or thirty years after the fact would expose any of these flaws. Lawyers may not know enough about scientific testing to cross-examine analysts, and the analysts themselves would probably have forgotten most of the details related to thirty-year-old testing.[94] The Court, however, believes that probing lab mistakes is an important end of confrontation and cross-examination.[95] Therefore, the constitutional legitimacy of an ancient document exception must rest on its historical pedigree. Dying declarations and statements forfeited by wrongdoing are, on average, at least as likely to be unreliable as laboratory results. Yet the Court has held that reliability problems are not fatal for those exceptions. The same reasoning should hold true for ancient documents.


When forensic analysis is used as evidence, Bullcoming has interpreted the Confrontation Clause to require the testimony of the analyst who conducted the testing.

In the few months since Bullcoming, at least one conviction that relied on older DNA evidence has already been reversed.[96] With the breadth of Bullcoming’s holding, other cold-case prosecutions may be at risk. Bullcoming’s prohibition on surrogate testimony for forensic analyses creates a usually tolerable burden on prosecutions. For cold cases, however, the burden can be insurmountable because analysts may be dead or unknown and samples may be destroyed or degraded.

State and federal legislatures can respond to the cold-case problem by changing state and federal rules of evidence to explicitly include older DNA profiles under the ancient document hearsay exception. That change would ensure that in many cold cases DNA evidence could be introduced without violating the Confrontation Clause. Unlike the expert opinion testimony solution in Williams, the ancient document approach would apply only to a narrow subset of cases and satisfy the spirit of the Confrontation Clause. The ancient document approach provides an important mechanism for reconciling the Confrontation Clause with the imperatives of modern criminal prosecution.

[1].         541 U.S. 36 (2004).

[2].         See United States v. Brito, 427 F.3d 53, 55 (1st Cir. 2005) (“Crawford … effected a sea change in the jurisprudence of the Confrontation Clause.”); Anderson v. Jackson, 567 F. Supp. 2d 973, 982 (E.D. Mich. 2008) (characterizing Crawford’s interpretation of the Confrontation Clause as a “radical transformation”). A minority of scholars claims that Crawford’s doctrinal shift has less practical bite than is generally assumed. E.g., Charles F. Baird, The Confrontation Clause: Why Crawford v. Washington Does Nothing More Than Maintain the Status Quo, 47 S. Tex. L. Rev. 305, 320-24 (2005) (arguing that Crawford “guarantees the status quo—the continued admission of statements that the Confrontation Clause was meant to exclude,” because it fails to define “testimonial statements” while vesting discretion in judges to decide which statements reach the jury).

[3].         See, e.g., Tom Lininger, Prosecuting Batterers After Crawford, 91 Va. L. Rev. 747, 749-50 (2005) (citing evidence that prosecutions of domestic violence suffered greatly in the aftermath of Crawford).

[4].         See, e.g., Tom Jackman & Rosalind S. Helderman, Kaine Calls Session To Amend Laws on Trial Testimony, Wash. Post, July 23, 2009, at B1 (describing Virginia Governor Tim Kaine’s fear that without legislative action addressing Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), which had applied Crawford to forensic laboratory reports, criminals “charged with very serious crimes [will be] able to escape conviction on technicalities”).

[5].         See Danae VanSickle Grace, The Sky Is Not Falling: How the Anticlimactic Application of Melendez-Diaz v. Massachusetts to Oklahoma’s Laboratory Report Procedures Allows Room for Improvement, 63 Okla. L. Rev. 383, 383 (2011) (noting that Melendez-Diaz provided states with a “roadmap” to avoid being hamstrung by its stringent confrontation right protection).

[6].         131 S. Ct. 2705 (2011).

[7].         See infra Part II. Other authors have recognized the potential conflict between the Confrontation Clause and the use of DNA evidence in prosecuting cold cases. See Oliver M. Gold, Note, Trimming Confrontation’s Claws: Navigating the Uncertain Jurisprudential Topography of the Post-Melendez-Diaz Confrontation Clause, 43 Loy. L.A. L. Rev. 1438 (2010); David G. Savage, Criminal Defendants Find an Unlikely Friend in Justice Scalia, L.A. Times (Nov. 24, 2011), http://articles.latimes
.com/2011/nov/24/nation/la-na-court-scalia-20111125 (noting the cold-case problem in passing); Richard D. Friedman, “Pure Cold Case” Prosecutions & The Confrontation Clause: What Does the Future Hold?, Confrontation Blog (Jan. 26, 2011, 1:42 AM), http://confrontationright.blogspot.com/2011/01/pure-cold-case

[8].         Craig M. Cooley, Advancing DNA Technology and Evolving Standards of Decency: Do Capital Prisoners Have an Eighth Amendment Right to Post-Conviction DNA Testing in Light of Osborne?, 4 Charleston L. Rev. 569, 617 (2010) (“DNA testing has revolutionized the criminal justice system by exonerating the innocent and incriminating the guilty.”).

[9].         Richard Lempert, Some Caveats Concerning DNA as Criminal Identification Evidence: With Thanks to the Reverend Bayes, 13 Cardozo L. Rev. 303, 334 (1991) (noting that DNA evidence is “especially” valuable for solving rape cases).

[10].      See William H.J. Hubbard, Civil Settlement During Rape Prosecutions, 66 U. Chi. L. Rev. 1231, 1233 (1999) (noting “extremely low rates of conviction for rape”).

[11].      See Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 60 (2008) (noting that of 200 convicts later exonerated by DNA evidence, “[t]he vast majority … (79%) were convicted based on eyewitness testimony”).

[12].      Throughout, I alternately refer to policy makers and legislatures. The Federal Rules of Evidence are prescribed by the Supreme Court under a specified procedure. See 28 U.S.C. §§ 2072-2074 (2006). The rules can also be independently amended by Congress. States may have different procedures for amending evidentiary rules.

[13].      U.S. Const. amend. VI.

[14].      Richard D. Friedman, Confrontation: The Search for Basic Principles, 86 Geo. L.J. 1011, 1011-12 (1988) (“For the most part, however, the boundaries of the confrontation right as applied to trial witnesses are tolerably clear. The more pervasive perplexity arises [when] … the declarant herself does not testify at trial.”). The Confrontation Clause is generally understood to provide several rights regarding witnesses who do testify at trial. See Coy v. Iowa, 487 U.S. 1012, 1016 (1988) (noting that the Confrontation Clause provides a right to a “face-to-face meeting with witnesses appearing before the trier of fact”); Douglas v. Alabama, 380 U.S. 415, 418 (1965) (noting that “a primary interest secured by [the Confrontation Clause] is the right of cross-examination”).

[15].      448 U.S. 56 (1980). See George Fisher, Evidence 567 (2d ed. 2008) (noting that, before Roberts, the Supreme Court “issued a number of ad hoc judgments to resolve particular controversies, but made little attempt to synthesize the Confrontation Clause’s impact on the admission of hearsay. The Court first undertook this task in earnest in Ohio v. Roberts.” (citation omitted)).

[16].      See Roberts, 448 U.S. at 66.

[17].      See, e.g., Friedman, supra note 14, at 1022 (stating that the Roberts approach to Confrontation Clause analysis “devalues the Confrontation Clause, treating it as a constitutionalization of amorphous and mystifying evidentiary doctrine”); Randolph N. Jonakait, Restoring the Confrontation Clause to the Sixth Amendment, 35 UCLA L. Rev. 557, 622 (1988) (stating that under the Roberts line, “evidence law now controls the content of the confrontation clause, and the clause now offers an accused little protection”).

[18].      Whorton v. Bockting, 549 U.S. 406, 413-19 (2007) (stating that Crawford overturned Roberts).

[19].      See Crawford v. Washington, 541 U.S. 36, 43-50 (2004) (discussing English common law, colonial, and early American cases that support the Court’s testimonial framework); see also Laird C. Kirkpatrick, Nontestimonial Hearsay After Crawford, Davis and Bockting, 19 Regent U. L. Rev. 367, 382 (2007) (characterizing the Crawford opinion as a “model of originalist interpretation”).

[20].      Crawford, 541 U.S. at 51 (quoting 2 Noah Webster, An American Dictionary of the English Language (1828)).

[21].      Id. at 51 (quoting 2 Noah Webster, An American Dictionary of the English Language (1828)).

[22].      Id.

[23].      Id. at 59 n.9 (citing California v. Green, 399 U.S. 149 (1970)). To be precise, there are two additional circumstances in which testimonial hearsay is admissible against a criminal defendant: dying declarations, id. at 56 n.6 (noting that the Confrontation Clause may include a sui generis historical exception for dying declarations), and forfeiture by wrongdoing, Giles v. California, 554 U.S. 353 (2008).

[24].      Kirkpatrick, supra note 19, at 370.

[25].      Id. at 51 (quoting Brief for Petitioner at 23, Crawford v. Washington, 541 U.S. 36 (2004) (No. 02-9410)).

[26].      See Michigan v. Bryant, 131 S. Ct. 1143 (2011) (addressing the application of the Confrontation Clause to certain police interrogations); Davis v. Washington, 547 U.S. 813 (2006) (addressing the application of the Confrontation Clause to 9-1-1 calls and battery affidavits).

[27].      Courts continue to disagree about whether several categories of statements are testimonial, including statements made by children to government officials, compare State v. Bobadilla, 709 N.W.2d 243, 255 (Minn. 2006) (concluding that a child witness’s statements were nontestimonial in part because “it is doubtful that [the witness] was even capable of understanding that his statements would be used at a trial”), with People v. Sisavath, 13 Cal. Rptr. 3d 753, 758 n.3 (Cal. Ct. App. 2004) (“Conceivably, the Supreme Court’s reference to an ‘objective witness’ should be taken to mean an objective witness in the same category of persons as the actual witness—here, an objective four year old. But we do not think so.”), and autopsy reports, compare Martinez v. State, 311 S.W.3d 104, 111 (Tex. Ct. App. 2010) (holding that an autopsy report was testimonial because the “statutory basis giving rise to [the] duty to perform the autopsy was that the circumstances surrounding [the victim’s] death warranted the suspicion that the death was caused by unlawful means”), with Acevedo v. State, 255 S.W.3d 162, 173 (Tex. Ct. App. 2008) (stating in dicta that an autopsy report is “considered nontestimonial” because it “contains matters observed pursuant to a duty imposed by law” (internal quotation marks omitted)).

[28].      Compare Martin v. State, 936 So. 2d 1190 (Fla. Dist. Ct. App. 2006) (holding that a state laboratory report indicating that a seized substance was cocaine was testimonial), with Commonwealth v. Verde, 827 N.E.2d 701 (Mass. 2005) (holding that certificates of analysis for laboratory results are nontestimonial).

[29].      See Commonwealth v. Williams, 69 Va. Cir. 277 (2005) (noting that a “majority of state courts” have held certificates of analysis to be nontestimonial).

[30].      129 S. Ct. 2527 (2009).

[31].      Id. at 2530-32.

[32].      Id. at 2530-31.

[33].      Id. at 2531-32.

[34].      Id. at 2533-34.

[35].      Id. at 2534-35.

[36].      Id. at 2536-38.

[37].      See Commonwealth v. Melendez-Diaz, 950 N.E.2d 867, 873 n.9 (2011) (noting on appeal of the remanded case that the “sweep of Melendez-Diaz was quite broad”).

[38].      Melendez-Diaz, 129 S. Ct. at 2544-45 (Kennedy, J., dissenting).

[39].      Id. at 2532 n.1 (“[W]e do not hold … that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case.”).

[40].      Bullcoming v. New Mexico, 131 S. Ct. 2705, 2710 (2011).

[41].      Id.

[42].      Id. at 2710-11.

[43].      Id. at 2711-12.

[44].      Id. at 2712.

[45].      Id. at 2710-13.

[46].      Id. at 2714-16.

[47].      Id. at 2717.

[48].      Id.

[49].      Id. at 2715.

[50].      Id. at 2718.

[51].      Id.

[52].      Id. at 2718-19.

[53].      Id. at 2710.

[54].      See Derr v. State, 29 A.3d 533, 560 (Md. 2011) (Harrell, J., concurring in part and dissenting in part) (arguing that “the direction the Supreme Court has taken seems to inhibit significantly the Government’s ability to prosecute ‘cold cases’”).

[55].      Id. at 569. The court said that “Derr was charged with rape in the first degree, sexual assault in the first degree, assault with intent to commit rape, and two counts of a third degree sexual offense.” Id. at 537 n.4.

[56].      Id. at 537-39.

[57].      Id. at 537-38.

[58].      Id. at 536-37.

[59].      See, e.g., Triplett v. Hudson, No. 3:09-CV-01281, 2011 WL 976575, at *2 (N.D. Ohio Mar. 17, 2011) (holding that the admission of DNA test results in a 2005 trial for a 1998 murder, without the testimony of “the forensic analyst who performed the tests,” did not violate clearly established federal law at the time the conviction became final); Ware v. State, No. CR-08-1177, 2011 WL 1088724, at *13 (Ala. Crim. App. Mar. 25, 2011) (holding that DNA evidence from a 1993 rape was properly admitted in a 2008 trial because the DNA profile report was “not in the form of an affidavit” and therefore nontestimonial).

[60].      See State v. Bolden, No. 11-237, 2011 WL 4578596 (La. Ct. App. Oct. 5, 2011) (reversing convictions for 1998 and 1999 rapes on the grounds that the analysts who tested and profiled DNA evidence from both crimes did not testify during the trial, in violation of the defendant’s confrontation right).

[61].      Bullcoming v. New Mexico, 131 S. Ct. 2705, 2711-12 (2011).

[62].      Id. at 2722 (Sotomayor, J., concurring in part).

[63].      See People v. Williams, 939 N.E.2d 268 (Ill. 2010), cert. granted, 131 S. Ct. 3090-91 (2011).

[64].      Williams, 939 N.E.2d at 269-270.

[65].      Id. at 277-82.

[66].      Id.

[67].      Brief for Petitioner at 10-11, Williams v. Illinois, No. 10-8505 (U.S. Aug. 31, 2011).

[68].      Brief for Respondent at 9-10, Williams v. Illinois, No. 10-8505 (U.S. Oct. 19, 2011).

[69].      See, e.g., Tom Goldstein, Argument Recap: A Solidifying Confrontation Clause Majority, SCOTUSBlog (Dec. 11, 2011, 8:54 PM), http://www.scotusblog.com/2011/12/
argument-recap-a-solidifying-confrontation-clause-majority/ (“[T]he tea leaves of the argument indicate Williams is going to win, either six to three or five to four.”).

[70].      Cf. People v. Kilday, 20 Cal. Rptr. 3d 161, 173 (Cal. Ct. App. 2004) (“The determination whether a statement obtained through police questioning in the field is testimonial requires a case-specific, fact-based inquiry.”), remanded, 169 P.3d 883 (Cal. 2007).

[71].      This was the approach followed by the majority in Derr. See Derr v. State, 29 A.3d 533, 553 (Md. 2011) (“The key distinction … is whether the testifying expert relies on raw data in forming his or her conclusions … .”). It is also possible that the Court could adopt the machine-output or raw-data rule while ruling in favor of Williams. See Richard D. Friedman, The Cellmark Report, and What It Shows, Confrontation Blog (Dec. 15, 2011, 12:43 AM), http://confrontationright
.blogspot.com/2011/12/cellmark-report-and-what-it-shows.html (arguing that the DNA report at issue in Williams “was not simply the product of a machine”).

[72].      Derr, 29 A.3d at 557.

[73].      Id. at 554.

[74].      See Richard D. Friedman, The Williams Argument, Confrontation Blog (Dec. 7, 2011, 11:52 PM), http://confrontationright.blogspot.com/2011/12/williams-argument.html (“Justice Breyer made it clear that he was thinking of working up an exception to the confrontation right in which … statements by accredited labs would be admissible so long as there was no reason to doubt the credibility of the particular technician involved.”); see also Transcript of Oral Argument at 11, Williams v. Illinois, No. 10-8505 (U.S. Dec. 7, 2011) (“[W]hat about saying this: that not only do we recognize the exception, but it isn’t a full exception; that if the defendant can show some reason to believe that either the laboratory is not properly accredited, it isn’t doing things properly; or that the individual technician has something personal or knows about—about the defendant that makes it suspect, immediately the presumption that the exception applies disappears, and the prosecutor has to call the—the witness.”) (question of Breyer, J.).

[75].      See Brief for Respondent at 11-17, Williams v. Illinois, No. 10-8505 (U.S. Oct. 19, 2011) (arguing that testimonial hearsay may serve as the basis of expert opinion testimony under Rule 703 or equivalent state rules of evidence without offending the Confrontation Clause).

[76].      See Brief for Petitioner at 33, Williams v. Illinois, No. 10-8505 (U.S. Aug. 31, 2011) (arguing that the prosecution’s expert testimony approach “inhibits a defendant’s ability to expose fraudulent or faulty analysis by depriving him of the opportunity to cross-examine the actual analyst, undermining this Court’s holdings in Crawford, Melendez-Diaz, and Bullcoming”); cf. United States v. Johnson, 587 F.3d 625, 635 (4th Cir. 2009) (“Allowing a witness simply to parrot ‘out-of-court testimonial statements of cooperating witnesses and confidential informants directly to the jury in the guise of expert opinion’ would provide an end run around Crawford.” (quoting United States v. Lombardozzi, 491 F.3d 61, 72 (2d Cir. 2007))).

[77].      See, e.g., Fed. R. Evid. 803(16); Ark. R. Evid. 803(16); Cal. Evid. Code. § 1331 (West 2011); Idaho R. Evid. 803(16); Utah R. Evid. 803(16).

[78].      See, e.g., Fed. R. Evid. 803(16) (applying the ancient document hearsay exception to certain documents more than twenty years old).

[79].      See, e.g., id.

[80].      Jordan v. McLure Lumber Co., 170 Ala. 289, 315 (1910).

[81].      Compton v. Davis Oil Co., 607 F. Supp. 1221, 1228-29 (D. Wyo. 1985).

[82].      Id. at 1229.

[83].      See, e.g., Cal. Evid. Code § 1331 (West 2011) (requiring that statements in ancient documents be “generally acted upon as true by persons having an interest in the matter”); see also State v. Continental Ins. Co., 88 Cal. Rptr. 3d 288, 328 (Cal. Ct. App.) (restrictively construing the requirements that ancient documents be “acted upon”), review granted, 203 P.3d 425 (Cal. 2009).

[84].      See, e.g., Continental Ins. Co., 88 Cal. Rptr 3d at 328 (interpreting the “acted upon” language of § 1331 to require actions in reliance to include actions taken outside the context of the litigation at issue).

[85].      See Giles v. California, 554 U.S. 353, 358-60 (2008) (recognizing that dying declaration and forfeiture by wrongdoing exceptions to the Confrontation Clause existed at the Founding); Crawford v. Washington, 541 U.S. 36, 56 n.6 (2004) (justifying a potential dying declaration exception to the Confrontation Clause by the existence of such an exception in criminal cases at the Founding).

[86].      See, e.g., Commonwealth v. Alburger, 1 Whart. 469 (Pa. 1836); Polk’s Lessee v. Minner, 1 Del. Cas. 24 (1794); Lessee of Thomas v. Horlocker, 1 U.S. 14 (Pa. 1766). In fact, the exception has its roots in English common law. See, e.g., Wright v. Sherrard, (1666) 83 Eng. Rep. (K.B.); 1 Keble 877; see also 4 John Henry Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law § 2137, at 555 (2d ed. 1923) (“For three centuries the rule has existed, unquestioned in its general validity, that an ancient document, under certain conditions, is to be taken as sufficiently evidenced, in regard to its genuineness of execution, to be submitted to the jury.”). An astute observer may note that these cases were civil, rather than criminal, cases. However, early American courts and English common law courts applied the same rules of evidence in civil and criminal cases. See United States v. Gooding, 25 U.S. 460, 469 (1827) (“In general the rules of evidence in criminal and civil cases are the same.”); Commonwealth v. Richards, 35 Mass. 434, 438 (1836) (“But the rules of evidence in civil and in criminal cases are generally the same.”); R. v. Watson, (1817) 171 Eng. Rep. (N.P.) 591; 2 Stark. 116. Other early American cases support the more general proposition that courts admitted hearsay evidence in criminal cases when nonhearsay evidence on the same point was unavailable. See, e.g., Overstreet v. State, 4 Miss. 328, 329 (1839) (noting the existence of “exceptions” to hearsay rules in a criminal case); State v. Jacobs, 1 Del. Cas. 109 (1796); State v. Baynard, 1 Del. Cas. 662, 663 (Del. Ct. of Oyer & Terminer 1794) (noting the existence of “many exceptions” to the general rule against hearsay).

[87].      See Note, The Use of Ancient Documents in Evidence, 26 Harv. L. Rev. 544, 546 (1913) (“[The] admission of hearsay in ancient documents occurs chiefly in connection with title to land … .”).

[88].      See Comment, Ancient Documents as an Exception to the Hearsay Rule, 33 Yale L.J. 412, 414-16 (1924) (listing applications of the ancient document exception).

[89].      Id. at 415-16.

[90].      See Kirkpatrick, supra note 19, at 382.

[91].      Joseph A. Wickes, Ancient Documents and Hearsay, 8 Tex. L. Rev. 451, 474 (1930).

[92].      See Crawford v. Washington, 541 U.S. 36, 67-68 (2004) (noting that the Confrontation Clause is an essential check against judicial and governmental manipulation of evidence in politically charged cases).

[93].      See Rape, Abuse, and Incest National Network, Statutes of Limitation for Prosecuting Rape and/or Sexual Assault (2003), available at http://www.relieffundforsexualassaultvictims.org/resources/statutesoflim… (listing and summarizing state statutes of limitations for rape and sexual assault).

[94].      See Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2548 (2009) (Kennedy, J., dissenting) (arguing that the Court’s holding will not “advance the purposes of the Confrontation Clause” in part because “an analyst [who] performs hundreds if not thousands of tests each year … will not remember a particular test or the link it had to the defendant.”).

[95].      See id. at 2537 (“Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well.”); see also Bullcoming v. New Mexico, 131 S. Ct. 2705, 2715 (2011) (“With Caylor on the stand, Bullcoming’s counsel could have asked questions designed to reveal whether incompetence, evasiveness, or dishonesty accounted for Caylor’s removal from his work station.” (emphasis added)).

[96].      Derr v. State, 29 A.3d 533 (Md. 2011).