The KSC applied Melendez-Diaz and held that the certificates used under K.S.A. 22-3437 are testimonial and implicate the Confrontation Clause:
Therefore, we conclude that the KBI laboratory analyst's use of the language required by K.S.A. 53-601 and the form prescribed by K.S.A. 22-3437 along with the certificate's reference to those two statutes indicates the certificate was intended to be and was "functionally identical to live, in-court testimony, doing 'precisely what a witness does on direct examination'" and was "'"made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."' As such, the KBI laboratory analyst's certificate was testimonial, giving rise to Laturner's rights under the Confrontation Clause. Consequently, absent a showing that the KBI analyst was unavailable to testify at trial and that Laturner had a prior opportunity to cross-examine the analyst, Laturner was entitled to be confronted with the analyst at trial unless that right was waived.
The KSC then had to consider whether the statute was unconstitutional. Melendez-Diaz itself recognized that states might pass legislation that requires pretrial notice of a desire to have the state's witness appear at trial and that waiver could be construed from failure to provide such statutory notice. But K.S.A. 22-3437 requires more than notice--it required an "objection that the conclusions of the certificate, including the composition, quality or quantity of the substance submitted to the laboratory for analysis or the alcohol content of a blood or breath sample will be contested at trial."
This requirement had been upheld by the KSC in 1999 in State v. Crow (discussed in this previous blog post on this case). The KSC reviewed Crow and its bases and concluded they were no longer viable after Crawford and Melendez-Diaz:
This reasoning, grounded on the Roberts test, was undercut by Crawford. As explained in Melendez-Diaz, it does not matter how reliable the evidence may be; a defendant still has a right to cross-examine the witness.
The KSC then reviewed other jurisdictions' resoloution of the issue and concluded that Crow could not survive:
The purpose of cross-examination, in part, is to explore weaknesses in the reliability of a witness' testimony and, when that witness is a laboratory analyst, in the results of forensic tests. Demanding that a defendant determine the nature of an objection to the reliability of the tests before questioning the witness imposes a difficult burden. Yet, this burden would have to be met to satisfy the Crow requirement that the objection have an indicia of merit, and merely stating an intent to attack reliability of the report would fall short. Moreover, the justification for imposing the requirement that there be an indicia of merit–i.e., the belief that a confrontation right only arose if the hearsay evidence did not have particularized guarantees of trustworthiness–is no longer valid in light of Crawford. We, therefore, abrogate and overrule the holding in Crow and conclude that decision imposes an improper hurdle in the assertion of a defendant's rights under the Confrontation Clause as interpreted in Crawford and subsequent decisions.
Finally, the KSC considered whether the statute could be saved in any part. Untimately, the KSC held that it could sever the portions of K.S.A. 22-3437 that require anything more than a Confrontation Clause objection to invoke the protection of the Confrontation Clause. Because the statute, as applied to Mr. Laturner including the offending language, was unconstitutional, the KSC reversed and remanded for a new trial either excluding the improper hearsay or providing confrontation.
As an aside, the KSC did recognize that the SCOTUS is hearing a case this term related to the reach of notice-and-demand statutes. Here is coverage of that case at the Confrontation Blog. The KSC agreed with Rachel that because of the differences between K.S.A. 22-3437 and the statute at issue in Briscoe, that decision would not impact today's decision in Kansas.