guarantees defendants a right to confront their accusers ―face to face.‖5. But what if that accuser has no face? Increasingly, computers have been.

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INTERFACING YOUR ACCUSER : COMPUTERIZED EVIDENCE AND THE CON FRONTATION CLAUSE FOLLOWING MELENDEZ – DIAZ I NTRODUCTION . . . to be confronted with t he witnesses against him . . . . 1 As the U.S. Supreme Court has recognized, this right was enshrined in the Constitution to protect Americans against the sort of ex parte prosecutions that characterized previous abuses of power, such a s the infamous Raleigh trial or the tyrannical rei gn of Queen Mary I, whose actions 2 Such practices were also one of the abuses complained of by the American colonists in the years leading up to the American Revolutio n. 3 Later, when the U.S. Constitution was ratified, Congress was obliged to include the Confrontation Clause in the Sixth Amendment to satisfy a ntifederalist concerns that the lack of such a provision might turn our constitutional regime into a tyranny. 4 T he Supreme Court has long held that the Confrontation Clause 5 But what if that accuser has no face? Increasingly, computers have been recognized not mere ly as repositories of data, bu t also as sources of 6 Several courts have held that 1 U.S. C ONST . amend. VI. 2 Crawford v. Washington, 541 U.S. 36, 43 44 (2004) (citing 1 J. S TEPHEN , H ISTORY OF THE C RIMINAL L AW OF E NGLAND 326 (1883); An Act Appointing an Order to Justice of the Peace for the Bailment of Prisoners, 1 & 2 Phil. & M. c.13 (1554); An Act to Take the Examination of Prisoners Suspected of Manslaughter or Felonye, 2 & 3 Phil. & M. c.10 (1555); 1 D AVID J ARDINE , C RIMINAL T RIALS 435, 520 (1832); Trial of Sir Walter Raleigh, in 2 T.B. H OWELL , S TATE T RIALS 15 16 (1603)) . 3 Id. at 47 48 (citing J. L IGHTFOOT ET AL ., A Memorial Concerning the Maladministrations of His Excellency Francis Nicholson , in 9 E NGLISH H ISTORICAL D OCUMENTS 25 3, 257 (David C. Douglas ed., 1955); John Adams, Draft of His Argument in Sewell v. Hancock (Oct. 1768 Mar. 1769), in 2 L EGAL P APERS OF J OHN A DAMS 194, 207 (L. Kinvin Wroth & Hiller B. Zobel eds., 1965)). 4 Id. at 48 49 (citing Objection of Abraham Holmes to Omission of Guaranteed Right of Confrontation (Jan. 30, 1787), in 2 D EBATES IN THE S EVERAL S TATES ON THE A DOPTION OF THE F EDERAL C ONSTITUTION 110 11 (Jonathan Elliot ed., 2d ed. 1836); R. L EE , L ETTER IV BY THE F EDERAL F ARMER (Oct. 15, 1787), reprinted in 1 T HE B ILL OF R IGHTS : A D OCUMENTARY H ISTORY 469, 473 (B. S chwartz ed., 1971)). 5 Id. at 57 (quoting Mattox v. United States, 156 U.S. 237, 244 (1895)). 6 E.g., United States v. Washington, 498 F.3d 225, 230 (4th Cir. 2007), cert. denied , 129 S. Ct. 28 56 (2009) (holding that computer – run blood – alcohol analysis does not implicate the Confrontation Clause because the machine – person and therefore cannot be testimonial).

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REGENT UNIVERSITY LAW REVIEW [Vol. 23: 213 214 Clause. 7 Nonetheless, most c Often, what comes out of a computer is dependent upon what is fed into it by a technician. 8 The purported objectivity of the process does n ot exempt it from confrontation: the Supreme Court recently held that 9 The question thus becomes: When do statements by machines cease to be statements of the machines themselves, and instead become the statements of their operators? At what point does man overtake machi ne? And when the testify to the result? Such questions must be addressed carefully for they bring with them the danger of, on the one hand, greatly inflating the costs of law enforcemen t 10 or, on the other hand, failing to sufficiently protect one of the most ancient and fundamental human rights. 11 This Note argue s that, when dealing with mechanized evidence, the Confrontation Clause requires testimony from the one whose intelligence and r easoning produced the conclusion, as long as this entity was an actual person and not merely a machine. Part I of this Note provide s an overview of the evolution of the determining what constitutes a , concluding with a brief analysis of the current state of the law following Melendez – Diaz v. Massachusetts . 12 Part II of this Note address es the question of when computerized evidence is testimonial by analyzing the threshold question of when such 7 Id. at 231 (citing 4 M UELLER & K IRKPATRIC K , F EDERAL E VIDENCE § 380 (2d ed. Confrontation Clause). 8 E.g. , id. at 23 2 33 (Michael, J., dissenting). 9 Melendez – Diaz v. Massachusetts, 129 S. Ct. 2527, 2532, 2536 (2009). 10 See id. at 2549 50 (Kennedy, J., dissenting); see also Brief for the State of Indiana, et al. as Amici Curiae Supporting Respondent at 6 11, Briscoe v. Virginia, 130 S. Ct. 1316 (2010) (No. 07 – 11191) (discussing the cost of implementing Melendez – Diaz ); Tim McGlone, High Court Ruling Throws Sand into Wheels of Justice , V IRGINIAN – P ILOT , Jan. 9, 2010 at 1, 10 (same). 11 See Crawford v. Washington, 541 U.S. 36, 43 50 (2004) (tracing the origins and history of the right of confrontation from Roman law to the founding of the United States); see also Deuteronomy 17:7, Matthew 18:15 16, Acts 25:16 (declaring a conf rontation right un der ancient Hebrew, Christian, and Roman law, respectively). 12 129 S. Ct. 2527 (2009).

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2010] INTERFACING YOUR ACCUSER 215 Confrontation Clause. 13 For this discussion, it will be helpful to draw on existing analyses as to when computerized evidence constitutes a statement, although most such analyses have been done in the context of the hearsay rule. When computerized data does implicate the Confrontation Clause, Part III of this Note address es the question of who may testify to admit the results of computer – aided analysis in the wake of the Supreme Melendez – Diaz . This section discusses attempts to admit the final printout into evidence and attempts by e xperts to use the computerized data as a basis for their opinions. In the months following Melendez – Diaz , the lower courts adopted a variety of approaches in applying the holding of that case. 14 Part III discuss es those approaches and propose s a coherent te st for determining whose testimony is I. D EFINING ESTIMONIAL T HE R OAD TO M ELENDEZ – D IAZ The current interpretation of the Confrontation Clause was first formulated in a concurrence b y Justice Thomas in White v. Illinois . 15 In White , the majority held that the Confrontation Clause is not implicated 16 Though the Court made it clear that it was not rendering t he Confrontation Clause redundant with the hearsay rule, 17 it did base its Confrontation Clause analysis on the notion that the 18 In that case, the United States, a s amicus curiae , had argued that the analysis of a statement under the 13 See, e.g., statements ning of the Crawford , 541 U.S. at 51)). 14 See People v. Gutierrez, 99 Cal. Rptr. 3d 369, 376 377 n.3 (Ct. App. 2009) (discussing the various attempts by the California appellate courts to reassess state pre cedent in light of Melendez – Diaz ), review granted , depublished by 220 P.3d 239 (Cal. 2009). Compare State v. Mobley, 684 S.E.2d 508, 511 (N.C. Ct. App. 2009) (permitting an expert to testify as to the results of tests performed by others as long as she pro vides her own criticisms of those results based on her own interpretation of the data), review denied , 692 S.E.2d 393 (N.C. 2010), with State v. Willis, 213 P.3d 1286, 1288 89 (Or. Ct. App. 2009) (holding that both the Oregon constitution and the U.S. Cons titution require , 236 P.3d 714 (Or. 2010), and Shiver v. State, 900 So. 2d 615, 618 (Fla. Dist. Ct. App. 2005) (holding that testimony by re Confrontation Clause when the work the report was based on was done by another). 15 502 U.S. 346, 358 (1992) (Thomas, J., c o ncurring). 16 Id. at 353. 17 Id. at 352 (quoting Idaho v. Wright, 497 U.S. 805, 814 (1990)). 18 Id. at 352 53 (quoting California v. Green, 399 U.S. 149, 155 (1970)).

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REGENT UNIVERSITY LAW REVIEW [Vol. 23: 213 216 Confrontation Clause should be based upon its similarity to the ex parte affidavits that the Clause was intended to prevent, but the Court held day to warrant reexamination 19 Justice Thomas, joined by Justice Scalia, argued that the Court should have accepted the United approach. 20 Lacking dispositive guidance from the text itself, 21 Justice Thomas examined the abuses that the Confrontation Clause was intended to prevent. Justice Thomas noted that in 16th – century England, interrogations were commonly held prior to trial, out of the presence of the defendant. 22 He further rejected the – established princ iple that the Confrontation Clause does 23 Instead, Justice Thomas proposed that, in ad they are contained in formalized testimonial materials, such as 24 To Justice Thomas, this view would both prevent the abuses that the Confrontation 25 desti ned to become the law of the land. Twelve years later, in Crawford v. Washington , Justices Thomas and Scalia were able to convert three justices, and also persuade two new justices who had been appointed in the interim, to their view of the Confrontation C lause, reversing the majority in White . 26 In his majority opinion, Justice Scalia reprised and exten ded the historical discussion found in in White , 27 coupling it with his own textual analysis, as follows: The Confrontation Clause guarantees defendants a right to be confronted 28 19 Id . at 353. 20 Id. at 358 (Thomas, J., concurring). 21 Id. at 359. 22 Id. at 361 (quoting 1 J. S TEPHEN , supra note 2 , at 221). 23 Id. at 363 (quoting Ohio v. Roberts, 448 U.S. 56, 66 (1980)). 24 Id. at 365. 25 Id . 26 Compare White , 502 U.S. 346, 352 53 (1992) (a 7 – 2 decision with Justices Scalia and Thomas d issenting) with Crawford v. Washington, 541 U.S. 36, 61 (2004) (a 7 – 2 decision with Justices Scalia and Thomas in the majority). 27 Crawford , 541 U.S. at 43 50. 28 Id. at 51.

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2010] INTERFACING YOUR ACCUSER 217 29 Therefore, defendants have a right to be 30 Justice Scalia then solemn declaration or affirmation made for the purpose of establishing or 31 and proceeded to lis t three more detailed : (1) in – court testimony or its functional equivalent that is, material such as affidavits, custodial examinations, prior testimony that the defendant was una ble to cross – examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially 32 ( extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony , or confessions 33 and statements that we re made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. 34 Justice Scalia declined to choose among these definitions, holding that the application of any of the three would result in the same outcome in the current case, 35 a decision that would cause quite a bit of confusion in the years to come. 36 His majority opin the defendant ha[s] had . . . a prior opportunity for cross – 37 Two years after their triumph in Crawford , the Scalia – Thomas alliance developed a small rift. That year, the Court granted certiorari in a pair of Confrontation Clause cases requiring a more precise definition 38 These cases were consolida ted by the Court as Davis v. 29 Id. (citing 2 N OAH W EBSTER , A N A MERICAN D ICTIONARY OF THE E NGLISH L ANGUAGE 114 (1828)). 30 See id. 31 Id. at 51 (alteration in original) (citing 2 W EBSTER , supra note 29 , at 91). 32 Id. (citing Brief for Petitioner at 23, Crawford , 541 U.S. 36 (No. 02 – 9410)). 33 Id. at 51 52 (omission in original) (citing White v. Illinois, 502 U.S. 346, 365 (1992) (Thomas, J., c oncurring)). 34 Id. at 52 (citing Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae at 3, Crawford , 541 U.S. 36 (No. 02 – 9410)). 35 Id . 36 See, e.g., Davis v. Washington, 547 U.S. 813, 822 (2006). 37 Crawford , 541 U.S. at 53 54. Justice Scalia also declined to overturn the dying declaration exception, although he indicated that it could not be justified on anything more than a sui generis historical basis. Id. at 56 n.6. 38 Davis , 547 U.S. at 817.

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REGENT UNIVERSITY LAW REVIEW [Vol. 23: 213 218 Washington . 39 – statements: Statements are nontestimonial when made in the course of police interrogation u nder circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, a nd that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution . 40 This rule has been interpreted as establishing a purpose – based approach to determine whether a statement is testimoni al, specifically: Did the circumstances indicate that the statement would be used for prosecution? 41 Thus, the Court seems to have adopted the third of the three definitions proposed in Crawford , although the other two continue to be cited by the Court. 42 He re, Justices Scalia and Thomas parted ways. In his partial concurrence, Justice Thomas maintained the same rule he had adhered to since White : The Confrontation Clause is implicated by extrajudicial statements stimonial 43 Justice Thomas unpredictable. 44 from the definition adopted by the majority in that it replaces the recent stage of develop ment in Melendez – Diaz v. Massachusetts . Melendez – Diaz evidence by forensic analysts to identify a substance found in the 45 I n a 5 – 4 decision , the Court held that the certificates were testimonial. 46 Writing for the majority , Justice 39 Id. at 813. 40 Id. at 822 (emphasis added). 41 E.g. , Melendez – Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 (2009) (quoting Crawford , 541 U.S. at 52). 42 Id. at 2531 (quoting Crawford , 541 U.S. at 51 52). 43 Davis , 547 U.S. at 836 37 (Thomas, J., concurring in part and disse nting in part) (quoting White v. Illinois, 502 U.S. 346, 365 (1992) (Thomas, J., concurring)). 44 Id. at 834. 45 Melendez – Diaz , 129 S. Ct. at 2530 31. 46 Id. at 2532. While two members of the narrow majority, Justices Stevens and Souter, have since left th e Court, Melendez – Diaz replacement by Justice Sotomayor in Briscoe v. Virginia , 130 S. Ct. 1316 (2010) (per

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REGENT UNIVERSITY LAW REVIEW [Vol. 23: 213 220 with the majority because the certificat es in question constituted affidavits. 53 Note that whereas in Davis , Justices Scalia and Thomas seemed to espouse different standards here, the majority opi nion incorporates both. 54 Indeed, in the majority opinion, declaration [ s ] of fact written down and sworn to by the declarant before an officer aut horized to administer oaths, 55 and Justice Thomas cites this as his basis for joining the majority. 56 This raises an interesting wrinkle in current jurisprudence: while solemnity is not generally required for a statement that is testimonia l, if the scientific report, it is uncertain whether it must be formalized to be testimonial , as there is no case in which a majority of justices have held that such reports can be testimonial without being formalized. Of course, if such a report is submitted directly, it is likely to be formalized, if only for authentication purposes. 57 Nevertheless, in situations in which the report is not actually testimony, this w rinkle in Confrontation Clause jurisprudence could 58 II. W HEN IS C OMPUTERIZED E VIDENCE T ESTIMONIAL ? A. Who is the Speaker?: Some Guidance from Hearsay Analysis Before determining whether computerized evidence constitutes a testimo nial statement, one must determine whet her it constitutes a statement at all. Several courts have held that certain types of 53 Id. at 2543 (Thomas, J., concurring) (quoting White v. Illinois, 502 U.S. 346, 365 (1992) (Thomas, J., concurring)). 54 Id. at 2532 (noting that t sole purpose 55 Id. (alteration in original) (quoting B LACK S L AW D ICTIONARY 62 (8th ed. 2004)). 56 Id. at 2543 (Thomas, J., concurring) (q uoting id. at 2532). 57 See, e.g. , id. at 2532 (noting that the certificates of analysis submitted in that cas e 58 People v. Vargas, 100 Cal. Rptr. 3d 578, 587 (Ct. App. 2009), review denied , No. S178100, 2010 Cal. LEXIS 1451 (2010); see People v. Rutterschmidt, 98 Cal. Rptr. 3d 390, Melendez – Diaz from being applied to nonformalized reports) (quoting Melendez – Diaz , 129 S. Ct. at 2543 (Thomas, J., concurring)), review granted , depublished by 220 P.3d 239 (Cal. 2009); see also People v. Dungo, 98 Cal. Rptr . 3d 702, 710 11 (Ct. App. 2009) (holding an autopsy report to be testimonial because it met both the formality test and the purpose test) (quoting Melendez – Diaz , 129 S. Ct. at 2532), review granted , depublished by 220 P.3d 240 (Cal. 2009).

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2010] INTERFACING YOUR ACCUSER 221 are not true statements, as true statements can be made only by persons. 59 – examination becomes nonsensical; the notion of a machine itself taking the witness stand for cross – examination approaches the realm of science fiction. 60 For the guarantees of the Confrontation Clause to mean anything, there must be a human witness against whom they can attach. Thus, any analysis of whether computerized evidence is testimonial must begin by distinguishing between non – statements by machines and statements by their technicians. Because much more work has been done on this subject in the realm of hearsay than in the realm of Confrontation Clause jurisprudence, it might be helpful to draw on the former in this analysis. 61 While the Supr eme Court has warned against conflating hearsay principles with Confrontation Clause jurisprudence, it has also acknowledged their overlap. 62 Meanwhile, lower courts have argued that there is no computerized evidence should differ between the hearsay rule and the Confrontation Clause. 63 Unfortunately, this argument is undermined somewhat hearsay rule has been altered in ways the Supreme Cour t might not tolerate for the Confrontation Clause. 64 Thus, one cannot say that the 59 See, e.g. , U nited States v. Washington, 498 F.3d 225, 230 (4th Cir. 2007), cert. denied, 129 S. Ct. 2856 (2009); People v. McNeeley, No. 283061, 2010 Mich. App. LEXIS 39, at *24 be confronted and cross – by a person is made explicit in hearsay analysis, F ED . R. E VID . 801(a), the Confrontation Clause definition of what constitutes a testimonial statement is not so specific on the matter. 60 – examine a gas chromatograph? Producing spectrographs, ovens, and centrifuges in court cert. denied , 129 S. Ct. 40 (2008); McNeeley , 2010 Mich. possibly be confronted or cross – examined, as an affiant, d eponent, or other type of witness p ert analyze its processes or re – run the analysis, but this would seem to be more a question of discovery and authentication than of confrontation. Se e Washington , 498 F.3d at 231; F ED . R. C IV . P. 34. 61 See United States v. Lamons, 532 F.3d 1251, 1263 (11th Cir. 2008) (computer – generated phone records), cert. denied, 129 S. Ct. 524 (2008); Washington , 498 F.3d at 230 n.1 (machine – generated blood – alcoho l analysis). 62 Melendez – Diaz v. Massachusetts, 129 S. Ct. 2527, 2539 (2009). 63 See Lamons , 532 F.3d at 1263; Washington , 498 F.3d at 230 n.1. 64 Compare G LEN W EISSENBERGER & J AMES J. D UANE , F EDERAL R ULES OF E VIDENCE : R ULES , L EGISLATIVE H ISTORY , C OMMENTAR Y AND A UTHORITY § 801.3 (6th ed.

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REGENT UNIVERSITY LAW REVIEW [Vol. 23: 213 222 analyzing the Confrontation Clause. Nevertheless, such analyses do provide a useful starting place for a di scussion of what constitutes a statement under the Confrontation Clause. Many courts have not questioned the proper classification of computerized evidence, instead relying on standard hearsay analysis, on the apparent assumption that any computerized data was a statement of the operator. 65 Those that have addressed the issue tend to draw a distinction between computer – generated evidence and computer – stored evidence. 66 Computer – generated evidence is evidence automatically generated by the computer: this is de computer and therefore not hearsay. 67 In contrast, computer – stored evidence is entered by a human, and is therefore a statement of that human. 68 A third category, not mentioned in the preceding dichotomy but potentially r elevant to the present discussion, is that of computer – enhanced evidence. 69 Those courts that draw a distinction between computer – generated and computer – stored evidence do so on the basis of human intervention, or lack thereof. 70 Evidence is computer – generat ed, and therefore not generation as to leave no doubt that [it is] wholly machine – generated for principles of reliability) (citing F ED . R. E VID . statement, because conduct not intended as a statement is not likely to involve 500; 7 AD. & E. 313, 341 (an earlier case applying the rule w ithout intent analysis)), with Crawford v. obviously reliable is akin to dispensing with jury trial because a defendant is obviously 65 Adam Wolfson, Note, of Computer – Generated Records as Hearsay , 104 M ICH . L. R EV . 151, 157 (2005). 66 For a good overview of the distinction between computer – generated and computer – stored data under the hearsay rule, and an argument as to why computer – generated evidence should not be considered hearsay, see id . at 157 158. 67 Lamons , 532 F.3d 1251, 1261 (11th Cir. 2008) (phone records); Washington , 498 F.3d at 230 31 (blood – alcohol analysis); United States v. Hamilton, 413 F.3d 1138, 1142 (10th Cir. 2005) (internet header automatically generated by uploading child pornography); United States v. Khorozian, 333 F.3d 498, 506 (3d Cir. 2003) (automatically generated fax header); People v. Holowko, 486 N.E.2d 877, 879 (Ill. 1985 ) (call tracers); State v. Armstead, 432 So. 2d 837, 840 (La. 1983) (phone records); see also Wolfson, supra note 65 , at 157 (collecting sources). 68 Wolfson, supra note 65 , at 158 (citing United States v. Duncan, 30 M.J. 1284, 1288 89 (N – M. Ct. Crim. App. 1990)). 69 E.g., State v. Swinton, 847 A.2d 921, 938 (Conn. 2004) (collecting cases distinguishing computer – enhanced evidence from computer – generated evidence); G REGORY P. J OSEPH , M ODERN V ISUAL E VIDENCE § 1.04[3][ c] (Release 50 2010). 70 E.g., Lamons , 532 F.3d at 1263 n.23, 1264 n.24 (citations omitted).

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2010] INTERFACING YOUR ACCUSER 223 71 Conversely, data that is entered by persons is merely computer – st ored, and is therefore subject to all of the requirements of the hearsay rule. 72 This distinction is based more on the reliability. 73 Indeed, even if computer – generated evidence is not directly subject to hearsay or Confrontation Clause restraints, it still requires authentication of the computer process, which could raise confrontation issues of its own. 74 A third possible category of c omputerized evidence is computer – enhanced evidence. 75 For example, suppose there is a burglary at a convenience store. The burglar is captured on a security camera, but the To rectify this problem, forensic analysts work to clarify the image of the 76 Such analysis can be done, and has been admitted by the courts as simply enhancing, rather than simulating, the video evidence. 77 At first glance, this may seem to be a good analog for certain types of computerized evidence that similarly require the computer processing of existing data. 78 Unfortunately, computer – enhanced evidence is generally addressed in terms of reliability and 71 Id. at 1263 n.23 (citing Khorozian , 333 F.3d at 506; United States v. Vela, 673 F.2d 86, 90 (5th Cir. 1982); Holowko , 486 N.E.2d at 879); accord Hamilton , 413 F .3d at 1142; Armstead , 432 So.2d at 839 40. 72 E.g., Lamons , 532 F.3d at 1264 n.24; Hamilton , 413 F.3d at 1142 n.4. 73 Khorozian , 333 F.3d at 506 07 (fax headers not hearsay even though they can be ngton, 498 F.3d 225, 231 (4th Cir. – generated information [are] addressed through the process of authentication and not by hearsay or Confrontation cert. denied , 129 S. Ct. 2856 (2009). 74 See, e.g. , Grant v. Commonwealth, 682 S.E.2d 84, 87 n.2, 88 89 (Va. Ct. App. 2009) (noting that the results of a breath test are non – testimonial because they come from a machine, but holding that the attestation clause was simi lar to an affidavit and required testimony by the operator who signed it). Compare State v. Bergin, 217 P.3d 1087, 1089 (Or. Ct. App. 2009) (certificates of accuracy for Intoxilyzers not testimonial because, unlike the certificates in Melendez – Diaz , they a re not under oath, do not directly prove an element of the crime, and are prepared with no guarantee that they will ever be used at trial), with United States v. Clark, No. 09 – 10067, 2009 U.S. Dist. LEXIS 100760, at *1 2 (C.D. Ill. Oct. 27, 2009) (certification of drug – sniffing dog requires testimony of his trainer under the Confrontation Clause). 75 E.g., State v. Swinton, 847 A.2d 921, 938 (Conn. 2004) (citations omitted); J OSEPH , supra note 69 , § 1.04[3][c]. 76 See Commonwealth v. Auker, 681 A.2d 1305, 1313 (Pa. 1996), for a similar scenario. 77 E.g., id. subject matt 78 For example, such simple data – processing was present in the blood – alcohol analysis in United States v. Washington, 498 F.3d 225, 228 (4th Cir. 2007), cert. denied, 129 S. Ct . 2856 (2009).

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