Between Substance and Procedure: A Role for States' Interests in the Scope of the Confrontation Clause

This Note considers the constitutionality of state statutes establishing procedures that a criminal defendant must fulfill in order to assert his Sixth Amendment right to confront laboratory analysts who have prepared forensic reports introduced into evidence against him. These statutes—commonly known as “notice-and-demand” statutes—have become increasingly important in light of the Supreme Court’s recent decision in Melendez-Diaz v. Massachusetts, holding that in order to introduce a laboratory report into evidence, the prosecution must make the technician who prepared the report available at trial for the purpose of cross-examination. This opinion is the most recent in a line of cases, beginning with Crawford v. Washington, which have interpreted the Confrontation Clause to require courts to apply a bright line rule rather than a more flexible “reliability” standard when determining whether a particular statement triggers a defendant’s confrontation right. Critically, the doctrinal analysis driving the Court’s opinion in Melendez-Diaz did not permit the Court to take into account the significant implications of its holding for state forensic laboratories and criminal justice systems. Building on dicta in Melendez-Diaz suggesting that at least some notice-and-demand statutes are constitutional, this Note argues that the Court should take states’ interests into account when assessing the validity of these statutes. Finally, this Note urges the Court to recognize the important connection between substance and procedure, and to develop a framework for determining which state-imposed procedures impermissibly undercut the strong right to confrontation first established in Crawford and most recently confirmed in Melendez-Diaz.