Justice Scalia concluded with the following in relevant part: The arguments advanced to avoid this rather straightforward application of Crawford are rejected. Respondent’s claim that the analysts are not subject to confrontation because they are not “accusatory” witnesses finds no support in the Sixth Amendment’s text or in this Court’s case law. The affiants’ testimonial statements were not “nearly contemporaneous” with their observations, nor, if they had been, would that fact alter the statements’ testimonial character. There is no support for the proposition that witnesses who testify regarding facts other than those observed at the crime scene are exempt from confrontation. The absence of interrogation is irrelevant; a witness who volunteers his testimony is no less a witness for Sixth Amendment purposes. The affidavits do not qualify as traditional official or business records. The argument that the analysts should not be subject to confrontation because their statements result from neutral scientific testing is little more than an invitation to return to the since-overruled decision in Ohio v. Roberts, which held that evidence with “particularized guarantees of trustworthiness” was admissible without confrontation.
Petitioner’s power to subpoena the analysts is no substitute for the right of confrontation. Finally, the requirements of the Confrontation Clause may not be relaxed because they make the prosecution’s task burdensome. In any event, the practice in many States already accords with today’s decision, and the serious disruption predicted by respondent and the dissent has not materialized.
Permitting the admission of hearsay evidence with “particularized guarantees of trustworthiness” invites courts to find these particularized guarantees. Most evidentiary decisions are entitled to great deference on appeal. Trial courts would thus be encouraged to streamlines cases and not require the production of otherwise necessary witnesses. The adoption of the four-justice dissent’s position would therefore undermine our fundamental Sixth Amendment right to confront witnesses at trial. The related hearsay rules are still permitted to be relaxed to permit the introduction of “trustworthy evidence” at pretrial evidentiary hearings.
