Hastings Constitutional Law Quarterly


Crawford v. Washington revitalized the Confrontation Clause by addressing the admissibility of testimonial hearsay by declarants whom defendants never previously had the opportunity to cross-examine. Courts continue to review Confrontation Clause challenges in a variety of contexts. How should courts determine the admissibility of forensic analyses introduced through witnesses who were not personally involved with them?

Most recently in California, the state supreme court decided People v. Dungo and People v. Lopez, limiting Confrontation Clause protection to testimonial hearsay statements contained in forensic analyses, which were made (1) with formality, and (2) for the primary purpose of criminal prosecution. As one of the first critical examinations of these two new cases, this article suggests that the California Supreme Court has overemphasized the requirement of a statement's formality and failed to adhere to United States Supreme Court precedent, as well as its own prior precedent.

Part of the problem stems from the California Supreme Court's reliance on the Supreme Court's approach in its recent case of Williams v. Illinois, which offered little guidance for courts to follow. This article argues that Supreme Court precedent focuses on a statement's primary purpose in determining its admissibility, and calls for the need to safeguard the right of confrontation against the use of surrogate witnesses in the introduction of forensic evidence.