I. IntroductionFederal and state prosecutors have increasingly re-

sorted to using forensic expert testimony against defen-dants in white collar criminal cases. Forensic account-

ants testify in cases involving fi-nancial fraud, including securi-ties, tax and money launderingviolations. In environmentalprosecutions, the government en-gages geologists, chemists, andmicroscopists to gather and ana-lyze evidence of spills and releasesof hazardous pollutants andchemicals. Prosecutors use foren-sic computer experts to prove ahost of computer-related crimes,such as Internet fraud, unlawfulaccess, and identity theft. They al-so recover electronic data and tes-tify on spoliation of evidence inobstruction of justice cases. Inboth white and blue collar cases,however, the prosecution hassought to admit evidence fromnontestifying forensic expertsthrough surrogate witnesses,summary witnesses, other ex-perts, and even documents to pre-vent the defense from cross-ex-amining the experts.

Beginning in 2009, theSupreme Court issued a trilogy ofopinions examining the reach ofthe Confrontation Clause of theSixth Amendment in cases inwhich the prosecution sought toadmit evidence and opinions ofnontestifying forensic experts toprove essential elements of thecrimes charged. The rulings intwo of the cases — Melendez-Diazv. Massachusetts and Bullcoming v.New Mexico1 — have paved a newpath for the defense to challengethe admission of evidence andopinions of nontestifying forensic

experts. The third case, Williams v. Illinois, 2 resulted in aplurality opinion favoring the prosecution, but has lim-ited precedential impact because a sharply dividedCourt could not agree on the basis for the result and theruling may be limited to bench trials. While the trilogyof cases involved traditional blue collar crimes, whitecollar practitioners nonetheless can rely on the holdingsof Melendez-Diaz and Bullcoming in cases when theprosecution attempts to admit expert testimonythrough the back door.

This article first examines the trilogy ofConfrontation Clause cases in detail. It next discussessimilar Confrontation Clause issues that arose in tworecent white collar prosecutions, and how they wereaddressed at trial. The first case, United States v. W.R.Grace, was a high-profile environmental prosecutioncharging W.R. Grace and several company executiveswith violating the knowing endangerment provision of

BY T HOMAS C . F RONG I L LO , C A RO L I N E K . S I MON S , J A C LYN

E S S I NG E R , AND MAT TH EW KNOWL E S

The ReinvigoratedConfrontation Clause A New Basis to Challenge theAdmission of Evidence FromNontestifying Forensic Experts In White Collar Prosecutions

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the Clean Air Act and defrauding theUnited States. The Grace verdict, anacross-the-board acquittal of all defen-dants, occurred less than two monthsbefore the Court decided Melendez-Diaz, the first case of the trilogy. Thesecond case, United States v. Ignasiak,was a health care fraud prosecution inwhich a physician was charged with ille-gally dispensing controlled substances topatients. The Eleventh Circuit’s opinionin Ignasiak, reversing the defendant’sconvictions, was issued shortly after theCourt decided Bullcoming, the secondcase in the trilogy. Through the frame-work of these cases, the article then pro-vides some practical suggestions on howwhite collar practitioners may rely onthe reinvigorated Confrontation Clauseto preclude the admission of certainforensic evidence of nontestifying wit-nesses at trial.

II. The Supreme Court’s CurrentFormulation of theConfrontation ClauseThe Confrontation Clause of the

Sixth Amendment provides that “[i]n allcriminal prosecutions, the accused shallenjoy the right … to be confronted withthe witnesses against him.”3 It guaran-tees a defendant’s right to confrontthose who bear testimony against him.4

This “bedrock procedural guarantee”applies to federal and state prosecu-tions.5 While the text of theConfrontation Clause could plausiblybe read to apply only to “witnessesagainst” the defendant who testify attrial, the Court has rejected that limita-tion, and held that the ConfrontationClause also applies to certain out-of-court statements offered at trial.6

However, “not all hearsay implicates theSixth Amendment’s core concerns.”7

A. Crawford v. WashingtonThe Court’s current interpretation

of the scope of the Confrontation Clauseis set forth in its seminal decisionCrawford v. Washington.8 UnderCrawford, criminal defendants have aconstitutional right to cross-examinewitnesses who make “testimonial” state-ments against them.9 Testimonial state-ments are admissible only if (1) thedefendant has the opportunity to cross-examine the declarant or (2) the declar-ant is unavailable but the defendant hadan adequate prior opportunity to cross-examine the declarant.10 The admission

of nontestimonial statements does notviolate the Sixth Amendment.11

Crawfordmade clear that the admis-sibility of hearsay statements againstcriminal defendants depends mainly onwhether a statement is “testimonial.”12

While the Court held that statementstaken by police officers during interroga-tions are testimonial,13 it declined toframe a comprehensive definition of a“testimonial” statement.14 The Court,however, recognized that “various for-mulations” of a “core class” of “testimo-nial” statements exist, including the fol-lowing three categories:

(1) ex parte in-court testimonyor its functional equivalent,including affidavits, custodialexaminations, prior testimonythat the defendant was unableto cross-examine or similar pre-trial statements that declarantswould reasonably expect to beused prosecutorially;

(2) extrajudicial statementscontained in formalized testi-monial materials such as affi-davits, depositions, prior testi-mony or confessions, and

(3) statements made under cir-cumstances that would lead anobjective witness reasonably tobelieve that the statementswould be available for use at alater trial.15

After Crawford, numerous lowercourts wrestled with the issue whether aparticular statement was “testimonial.” Inits recent Confrontation Clause trilogy,the Court addressed the issue of testimo-nial statements in the context of theadmission of opinions and evidencefrom nontestifying forensic experts.

B. The Court’s RecentConfrontation Clause Trilogy

1. Melendez-Diaz v.Massachusetts: AdmissionOf Nontestifying ForensicExpert’s Report ThroughAn Affidavit Violates theConfrontation Clause

Five years after Crawford, the Courtdecided Melendez-Diaz v.Massachusetts.16 The issue in Melendez-Diaz was whether laboratory reportsand certificates of analysis prepared inconnection with a narcotics investiga-

tion were testimonial under Crawford,thereby implicating the defendant’sSixth Amendment confrontation rights.Up until Melendez-Diaz, lower courtswere divided on this issue,17 with the ma-jority holding that such reports andanalyses were nontestimonial.18 In Me-lendez-Diaz, the Court embraced theminority position, holding that “affi-davits reporting the results of forensicanalysis” were testimonial.19

Luis Melendez-Diaz was convictedof distributing and trafficking cocaine.As allowed by Massachusetts law, theprosecution offered in evidence three“certificates of analysis” that describedthe results of the forensic analysis of thesubstance seized from Melendez-Diazand its weight. The certificates weresigned under oath by the state laboratoryanalysts. Defense counsel objected to theadmission of the certificates, arguingthat, under Crawford and theConfrontation Clause, the certificateswere testimonial and analysts wererequired to testify in person. The Courtgranted certiorari to determine whetherthe certificates were testimonial, render-ing the affiants “witnesses” subject to thedefendant’s right of confrontation.

In a 5-4 opinion authored by JusticeScalia,20 the Court agreed with thedefense and reversed the convictions.21

The Court held that “[t]here is littledoubt” that the certificates were in actu-ality affidavits and thus testimonial innature, pointing out that Crawfordmen-tioned affidavits twice in its descriptionof the “core class of testimonial state-ments.”22 In the Court’s view, the certifi-cates were “functionally identical to live,in-court testimony, doing ‘precisely whata witness does on direct examination.’”23

The Court determined that the “sole pur-pose of the affidavits was to provide‘prima facie evidence of the composi-tion, quality, and the net weight’ of theanalyzed substance.”24 “Absent a showingthat the analysts were unavailable to tes-tify at trial and that the [defendant] hada prior opportunity to cross-examinethem,” the Court held that the defendant“was entitled to ‘be confronted with’ theanalysts at trial.”25

The majority opinion rejected sev-eral arguments raised by the prosecu-tion and the dissent. First, the prosecu-tion argued that the analysts were notsubject to confrontation because theywere not “accusatory” witnesses, as theydid not accuse the defendant of wrong-doing.26 The Court disagreed, conclud-ing that the analysts “certainly providedtestimony against” the defendant —that is, they provided evidence proving

that the substance seized was cocaine,which was an essential element of thecrime — and thus triggered the SixthAmendment’s guarantee of the defen-dant’s right “to be confronted with thewitnesses against him.”27

The prosecution and the dissentnext argued that the analysts should notbe subject to confrontation because theywere not “conventional” witnesses of thetype “whose ex parte testimony was mostnotoriously used at the trial of Sir WalterRaleigh.”28 The Court similarly statedthat the purported distinctions betweenthe analysts and so-called “convention-al” witnesses did not survive scrutiny.29

The Court then addressed the pros-ecution’s contention that there is a dif-ference, for Confrontation Clause pur-poses, between testimony recountinghistorical events, which is prone to dis-tortion and manipulation, and testimo-ny that is the result of neutral, scientifictesting, such as that of the analysts.30 TheCourt rejected the premise of the argu-ment: that the “neutral scientific testing”was either neutral or reliable.31 TheCourt observed that a study conductedby the National Academy of Sciencesdiscussed the pressure on forensic scien-tists to sacrifice appropriate methodolo-gy for the sake of expediency.32 TheCourt further commented that a foren-sic analyst responding to law enforce-ment also may feel pressure or have anincentive to alter evidence in a mannerfavorable to the prosecution.33

Confrontation, the Court emphasized,was a means of (1) assuring accurateforensic analysis, (2) deterring fraudu-lent analysis, (3) identifying fraudulentand incompetent analysts, and (4) high-lighting deficiencies in the evidence.34 Inthe Court’s view, “there is little reason tobelieve that confrontation will be uselessin testing analysts’ honesty, proficiency,and methodology — the features thatare commonly the focus in the cross-examination of experts.”35

The prosecution further argued thatthe analysts’ affidavits were admissiblebecause they were akin to official andbusiness records admissible at commonlaw.36 The Court disagreed, holding thatthe affidavits were specifically producedfor use at a defendant’s criminal trial,thus making them fundamentally differ-ent from business records under Fed. R.Evid. 803(6).37 Thus, the analysts’ state-ments — much like police reports, forthe very same reason — were subject toconfrontation.38

In a sharp dissent, Justice Kennedywrote that the Court’s “wooden appli-cation” of Crawford and Davis would

dramatically increase the number ofcourt appearances of witnesses involvedin the testing of drugs in each case,including various analysts, laboratorytechnicians, laboratory directors andthose involved in the chain of custody.39

As a result of the Court’s ruling, the dis-sent predicted that “uncertainty anddisruption” would ensue along with“heavy societal costs,” all of which grantan unjustified “windfall to defen-dants.”40 In an equally pointed response,the majority stressed that it had noauthority to adopt a relaxed interpreta-tion of the Confrontation Clause, justas it had no authority to relax the bur-dens added onto the prosecution by theright to trial by jury and the privilegeagainst self-incrimination.41 The Courtdeclared that the “best indication thatthe sky will not fall after today’s deci-sion is that it has not done so already,”observing that many states previouslyhad adopted the rule announced by theCourt in Melendez-Diaz.42 The Courtconcluded that “there is little reason tobelieve that our decision today willcommence the parade of horriblesrespondent and the dissent predict.”43

In his concurring opinion, JusticeThomas stated that he wrote separatelyto continue to emphasize his view thatthe Confrontation Clause is implicatedby extrajudicial statements only whenthey are contained in formalized testi-monial materials, such as affidavits, dep-ositions, prior testimony and confes-sions.44 While the concurrence by JusticeThomas was brief, his position on thisissue laid the foundation for his decidingvote in favor of the plurality’s outcomein Williams v. Illinois.45

2. Bullcoming v. New Mexico:Use of a Surrogate WitnessTo Admit a NontestifyingExpert’s Report ViolatesThe Confrontation Clause

Just two years after Melendez-Diaz,the Court decided Bullcoming v. NewMexico,46 the second case in the trilogy.In Bullcoming, the prosecution attempt-ed to admit a blood-alcohol reportagainst Donald Bullcoming on chargesof driving under the influence. However,instead of calling Curtis Caylor, the ana-lyst who conducted the blood-alcoholtesting, the prosecution introducedCaylor’s report though another state lab-oratory scientist, Gerasimos Razatos,who had neither observed nor reviewedCaylor’s analysis. Defense counselobjected, arguing that the admission ofthe report would violate the defendant’sconfrontation rights. The trial court

admitted the report, and Bullcomingwas convicted.

While the case was pending onappeal, the Court decided Melendez-Diaz. Despite the apparent applicabilityof Melendez-Diaz, the New MexicoSupreme Court nevertheless upheld thetrial court’s admission of the report fortwo reasons.47 First, the court character-ized Caylor as a “mere scrivener” whosimply transcribed the results generatedby the gas chromatograph machine.48

Second, the court determined that whilethe second scientist, Razatos, did notparticipate in the blood testing, he wasqualified as an expert with respect to gaschromatography and was available forcross-examination.49 The Court grantedcertiorari to address the question: “Doesthe Confrontation Clause permit theprosecution to introduce a forensic lab-oratory report containing a testimonialcertification, made in order to prove afact at a criminal trial, through the in-court testimony of an analyst who didnot sign the certification or personallyperform or observe the performance ofthe test reported in the certification?”50

Writing for a 5-4 majority, JusticeGinsburg reversed the New MexicoSupreme Court’s affirmation of the con-viction, holding that the trial court’sadmission of Caylor’s report through thein-court testimony of another state lab-oratory scientist violated Bullcoming’sSixth Amendment confrontation right.51

In doing so, the Court asserted thatCrawford and Melendez-Diaz weighedheavily in Bullcoming’s favor becausethe state neither asserted that Caylor wasunavailable nor provided Bullcomingthe opportunity to cross-examineCaylor, thereby triggering Bullcoming’sconfrontation rights.52

Rejecting both lines of the NewMexico Supreme Court’s reasoning, theCourt first determined that Caylor wasnot a “mere scrivener,” but rather madepercipient observations, certified theintegrity of the blood sample and theaccuracy of the chain of custody of thesample, and performed the blood-alco-hol test in adherence to a precise proto-col.53 The Court noted that Caylor’srepresentations about these actionswere prime subjects for cross-examina-tion.54 Moreover, the Court reiteratedthat the purported reliability of an ana-lyst’s testimonial report drawn frommachine-produced data did not over-come the Sixth Amendment bar, a pointsettled in Crawford.55 In that regard, theCourt stressed that “analysts who writereports that the prosecution introducesmust be made available for confronta-

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tion even if they possess ‘the scientificacumen of Mme. Curie and the veracityof Mother Teresa.’”56

The Court then held that theappearance by Razatos did not satisfy theConfrontation Clause because the “sur-rogate testimony of the kind that Razatoswas equipped to give could not conveywhat Caylor knew or observed about theevents his certification concerned, i.e.,the particular test and testing process heemployed.”57 The Court stated thatRazatos had no knowledge of why Caylorhad been placed on unpaid leave, andthat Bullcoming was unable to ask ques-tions designed to reveal whether Caylor’sincompetence, evasiveness, or dishonestymay have caused his removal.58 TheCourt held that “the Clause does not tol-erate dispensing with confrontation sim-ply because the court believes that ques-tioning one witness about another’s testi-monial statements provides a fair enoughopportunity for cross-examination.”59

Justice Sotomayor authored a signif-icant concurring opinion. In highlight-ing the testimonial nature of the expertreport and articulating the limited reachof the Court’s ruling, Justice Sotomayorprovided several potential paths for anontestifying expert’s report to escapethe reach of the Confrontation Clause.And in doing so, the concurrence estab-lished the foundation for the pluralityholding in Williams v. Illinois.60 JusticeSotomayor wrote that to determinewhether a statement is testimonial, acourt must decide whether it has “‘a pri-mary purpose of creating an out-of-court substitute for trial testimony.’”61 Inthis case, she concluded that the blood-alcohol report and Caylor’s certificationmet the test.62

Justice Sotomayor then went on toidentify four scenarios that were notpresent in Bullcoming, ostensibly to sug-gest that Bullcoming may not control theoutcome of a future case should any ofthese scenarios appear.63 The four alter-native fact patterns that JusticeSotomayor found were not present inBullcoming were (1) the state suggestingthat an alternate purpose existed for theblood-alcohol report; (2) the testifyingwitness being a supervisor, reviewer orsomeone with a personal connection tothe scientific test at issue; (3) the stateasking an expert witness for his inde-pendent opinion about underlying testi-monial reports that were not admitted inevidence; or (4) the state introducingonly machine-generated results, such as aprintout from a gas chromatograph.64

However, Justice Sotomayor concludedthat “[t]his case does not present, and

thus the Court’s opinion does notaddress, any of these factual scenarios.”65

3. Williams v. Illinois: ExpertWitness’s Reliance on aNontestifying ExpertWitness’s Forensic ReportDid Not Violate theConfrontation Clause

Justice Sotomayor’s concurrence inBullcoming foreshadowed several unset-tled boundaries regarding the reach ofthe Confrontation Clause. In particular,her concurrence raised the issue whetherthe prosecution could introduce a non-testifying expert’s report through anoth-er expert witness’s independent opinion.This was precisely the issue that theCourt adjudicated in the third case of thetrilogy, Williams v. Illinois.66 In Williams,the former dissenters in Melendez-Diazand Bullcoming now formed the core ofthe plurality decision upholding theadmission of evidence from a nontestify-ing expert’s report as consistent with theSixth Amendment concerns addressed inMelendez-Diaz and Bullcoming.

In Williams, the defendant wascharged with the abduction and rape of ayoung woman in Chicago. After the inci-dent, doctors took a blood sample andvaginal swabs from the victim for a sexu-al assault kit. The Illinois State Police sentthe kit to Cellmark DiagnosticsLaboratory for DNA testing. Cellmarkprepared a report containing a maleDNA profile produced from semen takenfrom the swabs. At that time, SandyWilliams was not a suspect. A forensicspecialist at the State Police lab, SandraLambatos, later conducted a computersearch to determine whether theCellmark profile matched any entries inthe state DNA database. The computershowed a match to a profile produced bythe lab from a blood sample that hadbeen taken from Williams after an arrestin 2000 on unrelated charges.

At a bench trial before a state judge,the state called three forensic experts tolink Williams to the crime through hisDNA. The first expert testified that hisanalysis of the rape kit indicated thepresence of DNA evidence. The secondexpert testified concerning how she cre-ated a DNA profile from Williams’blood after his arrest for the unrelatedoffense. Finally, over the defense’s objec-tion, the third expert, Lambatos, testi-fied that there was a computer matchbetween the DNA profile returned byCellmark from the rape kit and theDNA profile from the defendant’sblood.67 The Cellmark report itself wasnever introduced into evidence.

On cross-examination, Lambatosconfirmed that she did not conduct orobserve any of the testing on the swabs,and that her testimony relied onCellmark’s analysis. The defense thenmoved to strike her testimony regardingthe testing done by Cellmark on theground that it violated the ConfrontationClause. The state, in opposition, arguedthat the evidence was admissible underIllinois Rule of Evidence 703, which per-mits an expert to disclose the facts onwhich the expert’s opinion is based. Thetrial court denied the defense’s motion,and convicted Williams.

The Court’s plurality decision,written by Justice Alito on behalf of thefour dissenters in Melendez-Diaz andBullcoming, affirmed the conviction ontwo bases: (1) the statements inCellmark’s report were not offered fortheir truth, but rather in the context ofdisclosing the underlying facts ofanother expert’s opinion; and (2) evenif Cellmark’s report were introducedinto evidence, it was nontestimonialand was not subject to theConfrontation Clause.68

As to the first ground, Justice Alitowrote that “[i]t has long been acceptedthat an expert witness may voice an opin-

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ion based on facts concerning the eventsat issue in a particular case even if theexpert lacks firsthand knowledge of thosefacts.”69 Like Fed. R. Evid. 703, the Courtobserved, the equivalent Illinois rule per-mits “an expert [to] base an opinion onfacts that are ‘made known to the expertat or before the hearing[.]’”70 But suchreliance, the Court noted, “does not con-stitute admissible evidence of this under-lying information.”71 Significantly, theCourt explained that under both the fed-eral and Illinois rules, “in jury trials …expert[s] [are prohibited] from disclos-ing such inadmissible evidence.”72 Sinceno such restriction existed in bench tri-als, Justice Alito observed, the judge pre-sumably understood the limited reasonfor the disclosure of the underlyinginformation and did not rely on thatinformation for an improper purpose.73

The plurality opinion stressed that,under Crawford, the ConfrontationClause “‘does not bar the use of testimo-nial statements for purposes other thanestablishing the truth of the matterasserted.’”74 Thus, the plurality opinionconcluded that Lambatos did not testifyto the truth of any matter concerningCellmark, as she made no reference tothe Cellmark report other than the DNAprofile it contained, and did not testifyto anything that was done at theCellmark lab.75

The plurality acknowledged that acontroversial aspect of Lambatos’ testi-mony was her assertion that theCellmark DNA profile was “generated[from] the male DNA profile found insemen from the vaginal swabs of [thevictim].”76 The plurality remarked that aconfrontation challenge to the admissionof this evidence would have had force ina jury trial, as the jury may have erro-neously accepted Lambatos’ testimony asproof that the Cellmark profile wasderived from the sample obtained fromthe victim’s rape kit.77 However, the plu-rality concluded, the danger was simplynot present in a bench trial due to “theacumen of the trial judge,” who wouldunderstand that Lambatos’ statementwas not offered for its truth, but merelymade as a premise of the prosecutor’squestion.78 In Justice Alito’s view, thedecision in Williams was “entirely consis-tent” with the holdings of Melendez-Diazand Bullcoming.79 In both of the earliercases, Justice Alito noted, the forensicreports were introduced into evidence toprove the truth of what they asserted.80

Justice Alito’s second basis foraffirming the conviction was that theCellmark report was nontestimonialbecause it was not prepared for the pri-

mary purpose of accusing a targetedindividual; instead, it was prepared to“catch a dangerous rapist who was still atlarge[.]”81 Given this, there was no“prospect of fabrication” or reason todistrust the report.82 Justice Thomas con-curred with the plurality on thisground.83 In his view, Cellmark’s report“lacked the requisite ‘formality andsolemnity’ to be considered ‘testimonial’for the purposes of the ConfrontationClause.”84 Justice Thomas, however,notably adopted the “dissent’s view of theplurality’s flawed analysis.”85

The theme of Justice Kagan’s dissentwas scathing but simple: “Under ourConfrontation Clause precedents, this isan open-and-shut case. The state …prosecuted Sandy Williams for rapebased in part on a DNA profile created inCellmark’s laboratory. Yet the state didnot give Williams a chance to questionthe analyst who produced that evi-dence”86 despite the fact that, for the dis-senters, “Lambatos’s testimony is func-tionally identical to the ‘surrogate testi-mony’ that New Mexico proffered inBullcoming. …”87 Likewise, the dissentrejected the plurality’s reliance on the“basis evidence” provision of Fed. R.Evid. 703, which Justice Kagan main-tained simply trumped form over sub-stance and dressed up a conclusion basedon an out-of-court statement in the guiseof science. Finally, the dissent rejected theassertion of the plurality and JusticeThomas that the Confrontation Clausedid not apply to the testimony because itwas nontestimonial. According to thedissent, Cellmark’s report was nontesti-monial because it was produced by amodern lab, noting that the same wastrue of the blood-alcohol report inBullcoming.88

A close look at Williams reveals thedeep division within the Court. JusticeKagan’s dissent, joined by Justice Scalia,Justice Ginsburg, and Justice Sotomayor,protested that the result of the case was“who knows what” and warned that“[t]he five justices who control the out-come of today’s case agree on very little”and have “left significant confusion intheir wake.”89 And indeed, while JusticeThomas voted with Chief JusticeRoberts, Justice Kennedy, Justice Breyerand Justice Alito to allow the admissionof the challenged expert testimony inthis case, he wrote separately in his con-currence that he actually “share[d] thedissent’s view of the plurality’s flawedanalysis,” writing that the plurality opin-ion “[made] little sense” and containedno logical, textual, nor historical justifi-cation.90 Thus, while five justices voted

for the ultimate judgment, anothermajority of the Court entirely rejectedthe reasoning justifying the judgmentitself. As Justice Kagan wrote, “no onecan tell in what way or to what extent”the precedents in Melendez-Diaz andBullcoming are altered “because no pro-posed limitation commands the supportof a majority.”91

4. Summary of theConfrontation Clause Trilogy

In Melendez-Diaz, Bullcoming, andWilliams, the Court attempted to clarifythe boundaries of a defendant’s con-frontation rights when faced with theadmission of opinions and evidencefrom nontestifying expert witnessesoffered by the prosecution through sur-rogate witnesses, other experts, and doc-uments. The decisions are sharply split,and the opinions and dissents are stri-dent in tone, with the Melendez-Diaz andBullcoming majorities ultimately findingthemselves in the dissent to a fractiousplurality opinion in Williams. Now thatthe dust has settled, Melendez-Diaz andBullcoming provide defense counsel witha basis to challenge the admission of evi-dence from nontestifying experts as wellas a ground to compel the prosecution tocall such witnesses during its case-in-chief, thereby providing the defense withthe opportunity to cross-examine. Yetdicta in Bullcoming and the pluralityopinion in Williams suggest safe harborsunder which the prosecution can stilloffer evidence from nontestifyingexperts, including through a differenttestifying expert under Fed. R. Evid. 703.However, the force of the Williams plu-rality may be narrowly confined to benchtrials, a fact that Justice Alito appeared toacknowledge. While Williams injecteduncertainty in the Court’s approach toresolving confrontation issues, it clearlysignaled that the battle within the Courtregarding the scope and application ofthe Confrontation Clause will continue.

III. Confrontation ClauseChallenges InvolvingForensic Experts In White CollarProsecutionsAs demonstrated by the trilogy,

most cases involving ConfrontationClause issues relating to forensic expertsconcern blue collar, as opposed to whitecollar, crimes: drug distribution inMelendez-Diaz, rape in Williams, and

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driving under the influence inBullcoming. But with the increased use offorensic experts in white collar cases,Confrontation Clause issues inevitablywill arise.

To date, there have been at least twosignificant white collar criminal cases inwhich the defense challenged the prose-cution’s admission of opinion and evi-dence from a nontestifying forensicexpert on the ground that it violated theConfrontation Clause. The first case, thelandmark environmental prosecution ofUnited States v. W.R. Grace,92 involvedthe government’s unsuccessful attemptto admit the opinions of several nontes-tifying forensic experts through summa-ry witnesses. Although the Court hadnot yet decided Melendez-Diaz, the dis-trict court declined to permit the gov-ernment to circumvent confrontation byoffering opinions of nontestifyingexperts through summary witnesses. Inthe second case, United States v.Ignasiak,93 the district judge permittedthe government to admit autopsyreports through a witness who had notperformed the autopsies, resulting in thedefendant’s conviction on charges ofunlawfully dispensing controlled sub-stances to patients. Relying on Melendez-Diaz and Bullcoming, the EleventhCircuit concluded that this violated thedefendant’s rights under theConfrontation Clause, and vacated theconviction.94 Grace and Ignasiak providedefense counsel in white collar caseswith guidance in addressingConfrontation Clause issues.

A. United States v. W.R. GraceWhile Melendez-Diaz was pending

before the Court, defense counsel in the“largest criminal environmental case inhistory” were grappling with a similar,but far more complex, ConfrontationClause issue in United States v. W.R.Grace. The Grace prosecution stemmedfrom Grace’s operation of a vermiculitemine outside of Libby, Mont. The ver-miculite was contaminated with variousfibrous minerals known as amphiboles,including two types of asbestos. Almosta decade after the mine was closed,national attention was called to the issueof the health of miners and their familymembers after a series of news articlesdescribed Libby as “a town left to die.”The articles reported that hundreds ofLincoln County residents had died orbecome ill from asbestos exposurecaused by Grace’s mining operations.The media accused the federal govern-

ment of having knowledge of theasbestos contamination in Libby fordecades, but doing nothing to protectthe residents.

Facing harsh public criticism, theEnvironmental Protection Agency (EPA)immediately dispatched a team to inves-tigate possible asbestos contamination inLibby caused by the mining operations.Within three months, the governmentcontemplated criminal proceedingsagainst Grace. During the ensuing multi-year investigation, EPA collected over100,000 air, soil, and dust samples fromthe Libby area to determine the presenceof asbestos that could be attributed to theGrace mine. Scores of government per-sonnel, consultants, and contractors par-ticipated in the sample collection. Thesamples were shipped to governmentlaboratories, where they were analyzedby a bevy of government experts, includ-ing geologists, mineralogists, chemists,and microscopists. Results of the sam-pling analyses were entered into a gov-ernment database that was compiled foruse at trial.

Over five years after the investiga-tion commenced, a federal grand juryreturned an indictment charging alldefendants with conspiracy to violatethe knowing endangerment provision ofthe Clean Air Act and conspiracy to

defraud the United States and obstruc-tion of justice. Prosecutors charged threedefendants with substantive counts ofknowing endangerment. Also, prosecu-tors charged Grace with obstruction ofjustice. To prove that the defendants hadviolated the knowing endangermentprovision of the Clean Air Act, the gov-ernment had the burden to prove,beyond a reasonable doubt, that theyhad knowingly released a “hazardous airpollutant” into the ambient air withknowledge that it would place anotherperson in imminent danger of death orserious bodily injury.95 Asbestos is a“hazardous air pollutant” under theClean Air Act.96

Before trial, the government dis-closed its intention to call Paul Peronard,the EPA on-site coordinator who led theLibby investigation, as an expert whowould testify that releases of asbestos inLibby from Grace’s mining operationsplaced Lincoln County residents inimminent danger of death or seriousbodily injury. To support his opinion,Peronard planned to rely on informationin the EPA’s sampling database.

The defense filed a motion in limineto preclude Peronard from relying onthe sampling data, arguing that the sam-pling reports prepared by EPA scientistswere “testimonial” evidence and subject

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to the Confrontation Clause.97 Thedefense maintained that the samplingdatabase was prepared for use againstGrace in litigation, including the crimi-nal action.98 More importantly, thedefense asserted, the sampling informa-tion contained the expert opinions ofmultiple EPA scientists and contractorsfrom the field and in the lab.99 The analy-sis and ultimate conclusion that a fibercontained asbestos was dependent uponthe analysts’ skill, judgment, and discre-tion; the Confrontation Clause guaran-teed the defendants’ right to challengethis application of discretion throughcross-examination.100 Under theConfrontation Clause, the defenseargued that the government wasrequired to call each EPA scientistinvolved in compiling the information.101

The motion also identified a funda-mental flaw with the government’s sam-pling data, which further demonstratedthe need for cross-examination of theexperts who analyzed the samples.Whether the amphibole fibers from themining operation constituted asbestoswas a hotly disputed issue at trial.According to the U.S. Geological Survey(USGS), which worked in conjunctionwith the EPA at the Libby site, 95 percentof the amphiboles from the samples werewinchite and richterite, neither of whichhas ever been classified as asbestos.102 TheUSGS concluded that less than six per-cent of the amphiboles were recognizedforms of asbestos.103 The motion assertedthat the government failed to differenti-ate the various amphibole fibers in itssampling data. As a result, the defenseargued, the government could not provethe proportion of amphiboles in thesamples that were “hazardous air pollu-tants” under the Clean Air Act.Consequently, the government also couldnot prove (1) the release of asbestos, (2)the amount of any asbestos released, and(3) a causal connection between therelease of asbestos and imminent dangerof death or serious bodily injury toanother person. Thus, scrutiny of theresults of the sampling analyses had adirect impact on whether the govern-ment could prove several essential ele-ments of the knowing endangermentcharges under the Clean Air Act.Recognizing this crucial weakness intheir case, the government sought to pre-clude the defense from cross-examiningthe experts who performed the samplinganalyses by having Peronard — who hadbecome an active spokesperson and localcelebrity hero for the EPA’s actions inLibby — introduce and rely on the infor-mation in the EPA sampling database.

Chief Judge Donald Molloy of theDistrict of Montana permitted thedefense to conduct an extensive voir direexamination of Peronard at trial toaddress whether he would be permittedto testify as an expert on endangermentand to rely on the information in thesampling database. Defense counselforcefully argued that the ConfrontationClause prohibited Peronard from provid-ing a “phantom analysis” of the samples,and that the government was required tocall the experts who had conducted thesampling analyses so that they could becross-examined.104 After the voir dire,Judge Molloy concluded that Peronardwas “not a scientist in any of the relevantfields,” and that his opinion, based onstudies done by toxicologists, epidemiol-ogists or other scientists, was “not a sci-entific opinion under [Federal] Rule [ofEvidence] 702.”105 Judge Molloy ruledthat “[t]he government is not allowed tooffer Mr. Peronard as a conduit throughwhich to synthesize all of the govern-ment’s various scientific testimony andto offer an over-arching opinion on thequestion of endangerment.”106 JudgeMolloy added that “the Constitution andthe Rules of Evidence required that wenot put evidence in by summary witness-es.”107 Judge Molloy made clear thatPeronard could not rely on the samplingdata.108 While similar to the situation inMelendez-Diaz, the issues raised in Graceforeshadowed those that the Courtwould later wrestle with in Bullcomingand Williams involving the prosecution’suse of surrogate witnesses or other expertwitnesses to admit the opinions of non-testifying experts.

Undaunted by the Judge Molloy’sruling, the government later attemptedto admit the sampling reports by callingan EPA chemist, Mary Goldade, to testifyas a summary witness. Goldade oversawthe laboratories where the samples wereanalyzed, performing field and laborato-ry audits; she did not personally analyzeany samples.109 Defense counsel arguedthat the government was “attempting toget around calling an expert who actual-ly looked at the samples under a micro-scope. …”110 Judge Molloy agreed, rulingthat Goldade also could not testify aboutsample results. Judge Molloy’s ruling wasin line with the Court’s subsequentopinion in Bullcoming, though JusticeSotomayor’s concurrence suggested thatthe government may have been able toadmit the contents of the samplingreports had it called Goldade as anexpert witness.111

In yet a final attempt to admit thesampling data and reports, the govern-

ment offered them in evidence as busi-ness records under Fed. R. Evid. 803(6).Just as the Court in Melendez-Diazrejected the respondent’s argument thatthe certificates qualified as businessrecords, Judge Molloy excluded the sam-pling data and report, ruling that theydid not meet the business records excep-tion because the sampling was done forpurposes of litigation. Judge Molloyruled that “[i]n the absence of a properlydisclosed expert to testify as to the sam-pling procedure … the evidence is notadmissible.”112

During this three-month trial, thegovernment never called a single expertwitness to testify about the samplingdata. The defense successfully arguedthat the sampling reports were testimo-nial and subject to confrontation underthe Sixth Amendment. Even without thebenefit of the Court’s decision inMelendez-Diaz, the defense successfullyprecluded the government’s attempts touse laboratory reports to prove severalessential elements of the Clean Air Act. Inthe end, all defendants were acquitted.

B. United States v. IgnasiakThe defendant in Ignasiak was a

Florida physician charged with healthcare fraud and multiple counts of dis-pensing controlled substances in viola-tion of the Controlled Substances Act.The government’s theory of the case forboth sets of charges was that the defen-dant had prescribed unnecessary orexcessive quantities of controlled sub-stances without a legitimate medical pur-pose and outside the usual course of pro-fessional practices.

Dr. Andrea Minyard, the chief med-ical examiner and records custodian forthe Office of the Medical Examiner, was akey witness at trial for the prosecution.During Dr. Minyard’s testimony, the gov-ernment admitted autopsy reports forseven of the defendant’s patients whowere not referenced in the indictment. Ineach instance, the autopsy reports con-cluded that the cause of death was phar-maceutical drug overdoses. Althoughtwo medical examiners testified aboutthe autopsies that they had performed,Dr. Minyard testified about the other fiveautopsies performed by nontestifyingmedical examiners, including testimonythat each medical examiner had conclud-ed that the cause of death was drug over-dose for each patient. In addition, Dr.Minyard testified that she agreed withthe conclusions of the nontestifyingmedical examiners regarding the cause ofdeath. The defendant objected to the

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admission of the autopsy reports duringDr. Minyard’s testimony on the groundthat it violated the Confrontation Clause.The district court overruled the objec-tion and appears to have admitted theautopsy reports as business recordsunder Fed. R. Evid. 806(6).113

On appeal, the Eleventh Circuitreversed the convictions, holding that theadmission of the autopsy reports violatedthe Confrontation Clause.114 Relying onboth Melendez-Diaz and Bullcoming, thecourt determined that the autopsyreports were testimonial evidence.115 Inthat regard, the court further reasonedthat the autopsy reports were madeunder circumstances that would lead anobjective witness to believe that theywould be used at trial.116 The court com-mented that the observational data andconclusions in the autopsy reports werethe product of skill, methodology andthe judgment of highly trained examin-ers, and were not made by mere scriven-ers reporting machine-generated rawdata.117 The court concluded that Dr.Minyard’s testimony was not a “constitu-tionally adequate surrogate for the actualmedical examiner who performed theautopsy.” 118 Although she was qualified asan expert, there was no evidence that sheobserved the autopsies.119 The courtemphasized that Dr. Minyard exacerbat-ed the Confrontation Clause violation byexpressing her own agreement with thenontestifying medical examiner’s conclu-sions regarding the cause of death, andthat the error was not harmless.120

IV. Practice Tips forWhite CollarPractitionersWhite collar defense lawyers need to

understand the scope of the rulings inMelendez-Diaz, Bullcoming andWilliams, as two of these decisions pro-vide the defense with a basis to precludethe prosecution from admitting damag-ing testimony of forensic experts in amanner that shields them from cross-examination. In addition, defense coun-sel in white collar cases seeking toexclude forensic reports from nontesti-fying experts should consider the possi-ble use of the following strategies andtactics.

A. Early Request for Pretrial Discovery ofGovernment’s ExpertsAt the outset of a matter, defense

counsel should seek comprehensive dis-

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covery of all of the prosecution’s expertwitnesses, and specifically request dis-covery of nontestifying experts if theprosecution intends to rely on their opin-ions or any evidence prepared by them.Fed. R. Crim. P. 16(a)(1)(E) permits thedefense to obtain discovery of docu-ments, data, and things if they are mate-rial to the defense, or if the governmentintends to use the item in its case-in-chiefat trial.121 Upon notice that the prosecu-tion intends to rely on expert reports,defense counsel should request theunderlying documents and data, includ-ing documents relating to collection,chain of custody, methodology, andquality control.

Careful scrutiny of the discoveryproduced by the government may revealwhether the government is relying onopinions of nontestifying experts whohave not been identified, which can poseConfrontation Clause issues. Thisoccurred in the Grace case, where defensecounsel filed a successful motion to com-pel the government to produce docu-ments underlying its air and soil sam-pling, including results of tests per-formed, procedures used to collect andpreserve samples, and documents relat-ing to the chain of custody.122 Analysis ofthe discovery revealed that the EPA hadevidence that commingled nonregulatedand regulated fibers in its samplingreports. Armed with this information,defense attorneys were able to argue thatthe expert reports were not admissiblethrough a summary witness who couldnot be cross-examined on the actual test-ing that produced the questionableresults. Were it not for this, the prosecu-tion was fully prepared to admit the sam-pling results reflecting inflated “asbestos”figures, while shielding their forensicexperts from cross-examination.

B. Establish That theNontestifying Expert’sReport Was ‘Testimonial’:Primary Purpose And FormalityThe Court’s Confrontation Clause

trilogy deals with the applicability of theSixth Amendment in situations in whichthe government seeks to admit opinionsand conclusions of nontestifying expertsthrough affidavits, surrogate witnesses,and testifying experts. In each case, theCourt’s analysis began with the purposeof the nontestifying expert’s report. If lit-igation was the “primary purpose” forwhich the report was prepared, then itlikely will be deemed “testimonial.” In

most white collar criminal cases, thedefense should contend that all expertanalyses performed for the prosecutionafter the government has commenced aninvestigation were done for the purposeof litigation.

Thus, as in Grace, defense counselmay consider requesting a voir direexamination of the case agent and thesurrogate witness to establish the pur-pose of the opinions and evidence fromthe nontestifying expert. The examina-tion should also seek to establish whenthe expert was engaged, the timing of theinvestigation, and the methodologyemployed by the expert to provide a fac-tual basis to argue that the primary pur-pose of the nontestifying expert’s reportis testimonial.

C. Establish That thePurpose of theNontestifying Expert’sOpinions and Evidence Is to Prove an EssentialElement of the CrimeWhere applicable, defense counsel

should argue that the purpose of thenontestifying expert’s opinions and evi-dence is to prove an essential element ofthe crime. A central tenet of criminal lawis that the prosecution must prove eachand every element of the crime beyond areasonable doubt.123 If defense counselcan show that a nontestifying expert’sreport is necessary to the prosecution toprove an essential element of the crime,this should heighten the trial court’s con-cern that confrontation is warranted.

This has been a common threadthrough the Confrontation Clause casesdiscussed so far. For instance, the state inMelendez-Diaz had the burden of prov-ing, through the “certificates of analysis,”that the seized materials were controlledsubstances and that the amount of thesubstance satisfied the “trafficking” ele-ment.124 Similarly, in Bullcoming, thestate was required to prove that thedefendant was intoxicated while he wasdriving by showing that his blood-alco-hol level exceeded the legal limit.125 And,in Williams, the DNA evidence was cen-tral to proving the identity and criminalact of the perpetrator.126 Finally, in Grace,the government sought to use the non-testifying experts’ reports to prove therelease of a hazardous air pollutant andimminent danger, both of which areessential elements of the knowingendangerment crime. As the opinions inthe nontestifying expert’s reports arecentral to proving the prosecution’s case,

defense counsel must vigorously chal-lenge the prosecution’s attempt to admitcrucial evidence through the backdoorwithout cross-examination.

D. Challenge the PurportedNeutrality or MechanicalNature of NontestifyingExpert’s Report

A consistent concern of the dissent-ing justices throughout Melendez-Diazand Bullcoming was the “crushing bur-den” that the broadened SixthAmendment rights would impose on thestate.127 Such a burden was unjustified,the justices reasoned, where the expertwitnesses at issue were inherently likelyto be more objective, more accurate, andless adversarial to the defendant due totheir being removed from the crime andthe identity of the defendant, in additionto being bound by scientific protocols.128

Trial judges, already overburdenedwith full dockets, may be particularlyanxious to expedite their cases and thusfind the Melendez-Diaz dissenters’ dis-dain for this “formalistic” requirement ofconfrontation persuasive.129 Defensecounsel should not hesitate to use real-life examples of demonstrated miscon-duct, fraud, mistake, or impropriety byexperts with similar backgrounds to bol-ster their arguments that confrontationand cross-examination of the nontestify-ing expert will be necessary to proceed.

The recent and ongoing crime labscandal in Massachusetts, where onechemist is accused of violating testingand logging protocol in over 50,000drug samples across 34,000 cases, servesas a reminder that cross-examination ofthe forensic experts responsible for pro-viding evidence against defendants mayvery well unearth their weaknesses, ifnot their invalidity.130 On Aug. 30, 2012,approximately three years after theCourt issued Melendez-Diaz, Gov.Deval L. Patrick issued a public state-ment concerning the suspension of twosupervisors at a Massachusetts crimelab where a chemist was accused of mis-handling drug evidence.131 The allegedmishandling of evidence spanned theyears 2003 to 2012.132 In his pressrelease, Gov. Patrick found the possiblecorruption at the crime lab so disturb-ing that he directed the State Police toclose the lab:133

This is deeply troubling infor-mation. No breach this seriouscan or will be tolerated. TheState Police will continue their

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investigation to determinewhat happened and who isresponsible so that we can holdthose accountable. We have alsoreached out to DistrictAttorneys, the United StatesAttorney and the PublicDefenders’ Office to informthem and to enlist their help toensure the fair administrationof justice. Meanwhile, I havedirected the State Police toclose the lab until they canensure me, the judicial systemand the public of the integrityof its work.134

As a result of alleged misconduct ata state crime lab that may have resultedin prosecutions and convictions based ontainted evidence, an estimated 34,000cases are now being reviewed at consider-able cost, time, and effort.135 As of Sept.24, 2012, Massachusetts courts alreadyhad released at least a dozen defendantsfacing drug charges because the evidencein their cases had been compromised byan alleged rogue chemist in the statecrime lab. Counsel can use this and otherexamples to rebut the assumption in theMelendez-Diaz dissent that immunizingforensic experts from testimony andcross-examination causes little to noprejudice to the defendant.

E. Seek to Use Crawford,Melendez-Diaz, andBullcoming to ExcludeEvidence BeyondNontestifying ForensicExperts’ ReportsAfter the Court issued its decision

in Melendez-Diaz in June 2009, defensecounsel in several white collar prosecu-tions sought to rely on the opinion tochallenge the admission of a variety oftypes of evidence on confrontationgrounds. While victories for the defensehave been limited, defense counselnonetheless should consider how thereasoning of Crawford and its progenymay be successfully applied in situationsbeyond forensic expert reports.

For example, in two cases defensecounsel relied on the ConfrontationClause to challenge the admission ofdocumentary evidence when the prose-cution sought to have evidence admit-ted by filing a certification of recordsmade by a document custodian underFed. R. Evid. 902(11). One was success-ful; the other was not. Fed. R. Evid. 902provides that “[e]xtrinsic evidence of

authenticity as a condition precedent toadmissibility is not required withrespect to” 12 categories of documents,including “certified domestic records ofregularly conducted business activity.”Fed. R. Evid. 902(11). Rule 902(11) setsforth the requirements of the declara-tion that must be prepared by a custodi-an or other qualified person to certifyrecords that are admissible as businessrecords under Fed. R. Evid. 803(6).

The court in State v. Alvarez-Amador136 reversed the defendant’s con-viction for identity theft on confronta-tion grounds. At trial, the state offered acertification from a custodian of recordsof the Social Security Administration(SSA), which stated that social securitynumbers furnished by the defendant didnot belong to him. A police officer testi-fied that he had asked the SSA to provideverification of the social security num-bers. On appeal, the court held thatunder Melendez-Diaz, the admission ofthe certification violated the defendant’sSixth Amendment right to confronta-tion.137 The court reasoned that the SSAcertification, which was prepared inresponse to a police officer’s request forinformation about the defendant, wasnot an admissible official record.138

V. ConclusionWith the increased use of forensic

evidence in white collar cases, con-frontation issues will arise. The Court’sdecisions in Melendez-Diaz andBullcoming have reinvigorated theConfrontation Clause and providedwhite collar practitioners with a soundbasis to challenge the prosecution’sadmission of forensic reports from non-testifying experts through the back door.White collar practitioners shouldexplore and test the unsettled bound-aries of the Confrontation Clause inappropriate cases.

Notes1. Melendez-Diaz v. Massachusetts, 557

U.S. 305 (2009); Bullcoming v. New Mexico,131 S. Ct. 2705 (2011).

2. Williams v. Illinois, 132 S. Ct. 2221(2012).

3. U.S. CONST. AMEND. VI.4. Crawford v. Washington, 541 U.S. 36,

51 (2004).5. Id. at 42. 6. Id. at 50-51.7. Id. at 51.8. Id. at 36.9. Id. at 51.10. Id. at 53-54; Davis v. Washington,

547 U.S. 813, 821 (2006).

11. Davis, 547 U.S. at 823-24.12. Crawford, 541 U.S. at 53-54. 13. Id. at 52.14. Id. at 68.15. Id. at 51-52.16. Melendez-Diaz v. Massachusetts,

557 U.S. 305 (2009). 17. Id. at 312-13.18. See Commonwealth v. Verde, 827

N.E.2d 701 (Mass. 2005), abrogated byMelendez-Diaz v. Massachusetts, 557 U.S.305 (2009); Commonwealth v. Williams, 69Va. Cir. 277 (Va. Cir. Ct. 2005).

19. Melendez-Diaz, 557 U.S. at 307, 311.20. Justice Scalia was joined by Justices

Stevens, Souter, Thomas, and Ginsburg.Justice Thomas also filed a concurring opin-ion. Justice Kennedy filed a dissenting opin-ion, and was joined by Chief JusticeRoberts, Justice Alito, and Justice Breyer.

21. Melendez-Diaz, 557 U.S. at 329.22. Id. at 310 (quotations omitted)

(“The documents at issue here, whiledenominated by Massachusetts law ‘certifi-cates,’ are quite plainly affidavits: ‘declara-tions of fact[s] written down and sworn toby the declarant before an officer author-ized to administer oaths.’”).

23. Id. at 310-11 (quoting Davis v.Washington, 547 U.S. 813, 830 (2006)).

24. Id. at 311 (quoting MASS. GEN. LAWSch. 111, § 13).

25. Id. (quoting Crawford v.Washington, 541 U.S. 36, 54 (2004)).

26. Id. at 313.27. Id.28. Id. at 315.29. Id.30. Id. at 317.31. Id. at 318.32. Melendez-Diaz, 557 U.S. at 318 (cit-

ing National Academy Report).33. Id.34. Id. at 318-19.35. Id. at 321.36. Id.37. Id.38. Id. The Court also summarily dis-

missed the prosecution’s assertion thatthere should be no Confrontation Clauseviolation because the defendant had theability to subpoena the analysts. Id. at 324.Noting that the power to subpoena wit-nesses was based on the CompulsoryProcess Clause, the Court opined that theCompulsory Process Clause is no substitutefor the right of confrontation, which impos-es a burden on the prosecution to presentits witnesses. Id.

39. Id. at 332-37 (Kennedy, J., dissenting). 40. Id. at 337, 343.41. Id. at 325 (majority opinion). 42. Id. at 325-26.43. Id. at 328.44. Id. at 329 (Thomas, J., concurring).

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45. See infra Section II.B.3 (discussingWilliams v. Illinois, 132 S. Ct. 2221 (2012)).

46. Bullcoming v. New Mexico, 131 S. Ct.2705 (2011).

47. Id. at 2712.48. Id. at 2713 (quotations omitted).49. Id.50. Id.51. Id.52. Id. at 2714.53. Id. at 2714-15.54. Id. at 2714.55. Id. at 2715.56. Id. (quoting Melendez-Diaz, 557 U.S.

at 319 n.6). 57. Id. at 2715.58. Id.59. Id. at 2716. The Court also rejected,

as foreclosed by Melendez-Diaz, the state’scontention that the blood-alcohol reportwas nontestimonial and did not implicatethe Confrontation Clause. Id. at 2717. TheCourt held that the laboratory reportresembled the certificates of analysis inMelendez-Diaz in all material respects. Id. Inboth cases, the police provided the seizedevidence to the state laboratory for analy-sis, and the analysts were required by law toassist the police. Id.

60. Id. at 2719 (Sotomayor, J., concur-ring).

61. Id. at 2720 (quoting Michigan v.Bryant, 131 S. Ct. 1143, 1155 (2011)).

62. Id.63. Id. at 2722. 64. Id.65. Id. at 2723.

66. Williams v. Illinois, 132 S. Ct. 2221(2012).

67. Id. at 2229-30 (plurality opinion)(quotations omitted).

68. Id. at 2228.69. Id. at 2233. 70. Id. at 2234 (quoting FED. RULE EVID.

703).71. Id.72. Id.73. Id.74. Id. at 2235 (quoting Crawford v.

Washington, 541 U.S. 36, 59-60, n.9 (2004)). 75. Id.76. Id. at 2236; see also id. at 2267

(Kagan, J., dissenting). 77. Id. at 2236 (plurality opinion).78. Id. at 2237.79. Id. at 2240. 80. Id.81. Id. at 2243.82. Id. at 2244 (quotations omitted).83. Id. at 2255 (Thomas, J., concurring).84. Id. (quoting Michigan v. Bryant, 131

S. Ct. 1143, 1167 (2011)).85. Id.86. Id. at 2265 (Kagan, J., dissenting). 87. Id. at 2267.88. Id. at 2272-75. 89. Id. at 2277 (Kagan, J., dissenting).90. Id. at 2255, 2263 (Thomas, J., con-

curring). 91. Id. at 2277 (Kagan, J., dissenting).92. United States v. W.R. Grace, et al., No.

9:05-CR-00007-DWM (D. Mont. Filed Feb. 7,2005).

93. United States v. Ignasiak, 667 F.3d

1217 (11th Cir. 2012). 94. Id. at 1239.95. 42 U.S.C. § 7413(c)(5)(A).96. 42 U.S.C. § 7412(b)(1).97. Defendants W.R. Grace and Robert

J. Bettacchi’s Motion to Preclude PaulPeronard from Relying on theGovernment’s Sampling Data, United Statesv. W.R. Grace, et al., No. 9:05-CR-00007-DWM(D. Mont. Feb. 25, 2009) (No. 942).

98. Id. at 5-9.99. Id. at 6. 100. Id. at 6-7.101. Id. at 8-9.102. See United States v. W.R. Grace, 455

F. Supp. 2d 1122, 1124-25 (D. Mont. 2006).Following the enactment of the Clean AirAct of 1970, EPA issued regulations settingemissions standards for asbestos. Asbestos,Beryllium, and Mercury, 38 Fed.Reg. 8820,8826 (April 6, 1973) (to be codified at 40C.F.R. pt. 61). The regulations include a defi-nition of asbestos for purposes of § 7412 ofthe Clean Air Act. The definition, which iscodified at 40 C.F.R. § 61.141, states:“Asbestos means the asbestiform varietiesof serpentinite (chrysotile), riebeckite (cro-cidolite), cummingtonite-grunerite, antho-phyllite, and actinolite-tremolite.” Otherfederal agencies have adopted similar defi-nitions of asbestos that include the samesix forms of asbestos, including 29 C.F.R. § 1910.1001(b) (2012) (adopted by OSHA);30 C.F.R. § 71.702(a) (2008) (adopted byMSHA); 16 C.F.R. § 1304.3(b) (adopted byCPSC); and 40 C.F.R. § 763.163 (adopted byEPA). Congress similarly defines asbestos in

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the Asbestos Hazard and EmergencyResponse Act, 15 U.S.C. § 2642(3) (2002).None of these definitions include winchiteor richterite. In United States v. W.R. Grace,504 F.3d 745, 755 (9th Cir. 2007), the NinthCircuit endorsed a dictionary definition ofasbestos as a “‘grayish noncombustiblematerial’ that ‘consists primarily of impuremagnesium silicates.’” Neither winchite norrichterite is gray. See JOHN W. ANTHONY ET AL.,HANDBOOK OF MINERALOGY (2001) (winchite iscolorless, cobalt blue to bluish violet; rich-terite is brown, yellow, green, and brownishred).

103. See United States v. W.R. Grace, 455F. Supp. 2d at 1124-25.

104. Transcript of Trial 2/25/09 at 599,United States v. W.R. Grace, et al., No. 9:05-CR-00007-DWM (D. Mont. May 3, 2010) (No.1217).

105. Id. at 672.106 Id. Judge Molloy’s ruling was in

accord with the Court’s reasoning inMelendez-Diaz. In Melendez-Diaz, the Courtrecognized that “[c]onfrontation isdesigned to weed out not only the fraudu-lent analyst, but the incompetent one aswell. … [A]n analyst’s lack of proper trainingor deficiency in judgment may be disclosedin cross-examination.” 557 U.S. 305, 319-320(2009).

107. Trial Transcript 2/25/09, supra note104, at 672:23-25.

108. Trial Transcript 2/25/09, supra note104, at 673.

109. Transcript of Trial 4/13/09 at5167:10-13, United States v. W.R. Grace, et al.,No. 9:05-CR-00007-DWM (D. Mont. May 3,2010) (No. 1223).

110. Id. at 5165:22-24.111. In Bullcoming v. New Mexico, 131 S.

Ct. 2705 (2011), Justice Sotomayor acknowl-edged that “[i]t would have been a differentcase if … a supervisor who observed ananalyst conducting a test testified aboutthe result or a report about such results.” Id.at 2722 (Sotomayor, J., concurring).

112. Order Denying Motion for theAdmission of Summary Exhibits at 2, UnitedStates v. W.R. Grace, et al., No. 9:05-CR-00007-DWM (D. Mont. Apr. 28, 2009) (No. 1140).

113. United States v. Ignasiak, 667 F.3d1217, 1229 n.14 (11th Cir. 2012).

114. Id. at 1229-34.115. Id. at 1229-32.116. Id. at 1232. 117. Id.118. Id. at 1233.119. Id.120. Id. at 1234-37.121. FED. R. CRIM. P. 16(a)(1)(E)(i)-(ii).122. United States v. W.R. Grace, 233

F.R.D. 586 (D. Mont. 2005).123. In re Winship, 397 U.S. 358, 361

(1970).

124. Melendez-Diaz v. Massachusetts,557 U.S. 305, 307-09 (2009).

125. Bullcoming v. New Mexico, 131 S.Ct. 2705, 2709-10 (2011).

126. Williams, 132 S. Ct. at 2227-29.127. See, e.g., Melendez-Diaz, 557 U.S. at

342 (Alito, J., dissenting).128. Id. at 345-46.129. Id. at 341.130. See also Williams v. Illinois, 132 S.

Ct. 2221, 2264 (Kagan, J., dissenting).131. Press Release, Commonwealth of

Massachusetts Executive Department,Office of Governor Deval L. Patrick,Statement from Governor Patrick onForensic Lab Investigation (Aug. 30, 2012),available at http://www.mass.gov/governor/pressoffice/pressreleases/2012/2012830-statement-from-governor-patrick-on-forensic-lab-investigation.html.

132. Dave Wedge & Chris Cassidy, RepCalls for ‘Heads to Roll’ in Lab Scandal, BOSTONHERALD (Sept. 7, 2012), available athttp://www.bostonherald.com/news/regional /view.bg?articleid=1061158509.

133. See Press Release, Commonwealthof Massachusetts Executive Department,supra note 131.

134. Id.135. Milton J. Valencia, Mass. District

Attorneys Fret at Lapses Found at Drug Lab,BOSTON GLOBE (Sept. 6, 2012), available athttp://bostonglobe.com/metro/2012/09/05/district-attorneys-raise-concerns-with-governor-over-alleged-wrongdoing-state-crime-lab/oD1XoISRDPDvfyb0hvj82J/story.html.

136. State v. Alvarez-Amador, 232 P.3d

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About the AuthorsThomas C. Frongillo is a Principal in the

Commercial Litiga-tion Group at Fish &Richardson. A formerAssistant U.S. Attor-ney, he representsclients in high-stakeswhite collar criminalprosecutions, corpo-rate and regulatory

investigations, and complex commerciallitigation.

Thomas C. FrongilloFish & RichardsonOne Marina Park Drive Boston, MA 02210617-521-7050Fax 617-542-8906

frongillo@fr.com

An associate in the Complex CommercialLitigation Group atWeil, Gotshal &Manges, Caroline K.Simons has workedon patent, complexcommercial, andcompliance mattersfor numerous clients.She also has experi-

ence in a range of pro bono matters.

Caroline K. SimonsWeil, Gotshal & Manges 100 Federal Street Floor 34Boston, MA 02110617-772-8325Fax 617-772-8333

caroline.simons@weil.com

Jaclyn Essinger is an associate in the Litiga-tion Department ofWeil, Gotshal &Manges. She focusesher practice on com-plex commercial litiga-tion and white collarcriminal defense andinvestigation matters.

Jaclyn EssingerWeil, Gotshal & Manges 100 Federal Street Floor 34Boston, MA 02110617-772-8848Fax 617-772-8333

jaclyn.essinger@weil.com

Matthew Knowles is an associate at Weil,Gotshal & Manges. Hepractices in the Com-plex Commercial Liti-gation Group and theWhite Collar CriminalDefense Group.

Matthew KnowlesWeil, Gotshal & Manges 100 Federal Street Floor 34Boston, MA 02110617-772-8837Fax 617-772-8333

matthew.knowles@weil.com

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