MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2018	ME	17	
Docket:	   Aro-17-166	
Argued:	   November	14,	2017	
Decided:	  January	25,	2018	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                   STATE	OF	MAINE	
                                           	
                                          v.	
                                           	
                                    MACIE	N.	JONES	
	
	
GORMAN,	J.	

	      [¶1]		Macie	N.	Jones	appeals	from	a	judgment	of	conviction	for	unlawful	

trafficking	 of	 a	 schedule	 W	 drug	 (Class	 B),	 17-A	 M.R.S.	 §§	 1102(1)(A),	

1103(1-A)(A)	 (2017),	 entered	 by	 the	 trial	 court	 (Aroostook	 County,	

Stewart,	J.)	 after	 a	 jury	 trial.	 	 Jones	 argues	 that	 17-A	M.R.S.	 §	1112	 (2017)	 is	

facially	 unconstitutional	 and	 that	 the	 court’s	 admission	 of	 a	 lab	 certificate	 in	

lieu	 of	 live	 witness	 testimony	 pursuant	 to	 that	 statute	 was	 a	 violation	 of	 her	

right	 of	 confrontation.	 	 We	 conclude	 that	 section	 1112	 is	 facially	

constitutional,	and	we	affirm	the	judgment.	

                                    I.		BACKGROUND	

       [¶2]		Viewing	the	evidence	presented	at	trial	in	the	light	most	favorable	

to	the	State,	the	jury	rationally	could	have	found	the	following	facts	beyond	a	
2	

reasonable	doubt.		See	State	v.	Cummings,	2017	ME	143,	¶	12,	166	A.3d	996.		

On	 December	 16,	 2015,	 an	 agent	 with	 the	 Maine	 Drug	 Enforcement	 Agency	

arranged	 to	 use	 a	 confidential	 informant	 to	 make	 a	 controlled	 purchase	 of	

methamphetamine	from	a	man	who	was	the	subject	of	an	investigation.		The	

purchase	took	place	in	Jones’s	vehicle,	where	Jones	was	present.		During	the	

transaction,	 Jones	 made	 various	 incriminating	 statements	 regarding	 her	

involvement	 in	 producing	 and	 selling	 methamphetamine,	 including	 that	 the	

drug	 the	 informant	 was	 purchasing	 was	 “better	 than	 anything	 we’ve	 made.”		

Jones	 later	 admitted	 to	 law	 enforcement	 that	 she	 had	 been	 involved	 with	

obtaining	the	ingredients	for	and	producing	methamphetamine.		

	     [¶3]	 	 Jones	 was	 indicted	 for	 unlawful	 trafficking	 of	 a	 schedule	 W	 drug	

(methamphetamine)	(Class	B),	17-A	M.R.S.	§§	1102(1)(A),	1103(1-A)(A).		She	

pleaded	not	guilty	to	the	charge.		

	     [¶4]	 	 The	 court	 conducted	 a	 jury	 trial	 on	 February	 3,	 2017.	 	 In	 its	

witness	list	provided	before	trial,	the	State	named	a	forensic	chemist	as	one	of	

the	witnesses	it	“may	call”	at	trial.		At	trial,	the	State	instead	sought	admission	

of	 the	 chemist’s	 certificate	 stating	 that	 a	 drug	 analysis	 established	 that	 the	

substance	the	informant	purchased	on	December	16,	2015,	was	in	fact	136.1	

milligrams	 of	 methamphetamine.	 	 The	 court	 admitted	 the	 certificate	 over	
                                                                                           3	

Jones’s	 objection,	 reasoning	 that	 Jones	 had	 not	 provided	 ten	 days’	 notice	 of	

her	 request	 for	 live	 testimony	 of	 the	 chemist	 in	 accordance	 with	 17-A	M.R.S.	

§	1112.		

	       [¶5]	 	 The	 jury	 found	 Jones	 guilty	 of	 the	 offense.	 	 The	 court	 entered	 a	

judgment	on	the	verdict,	sentencing	Jones	to	forty-two	months	in	prison	with	

all	 but	 fifteen	 months	 suspended;	 two	 years	 of	 probation;	 and	 $635	 in	 fines,	

restitution,	and	fees.		Jones	appeals.			

                                           II.		DISCUSSION	

        [¶6]	 	 The	 sole	 matter	 at	 issue	 is	 the	 court’s	 admission	 of	 the	 lab	

certificate	identifying	the	substance	exchanged	in	the	controlled	purchase	as	

methamphetamine.	 	 The	 court	 admitted	 the	 lab	 certificate	 in	 lieu	 of	 the	

chemist’s	 testimony	 pursuant	 to	 17-A	 M.R.S.	 §	 1112,	 which	 provides	 that	 a	

drug	analysis	certificate	“is	admissible	in	evidence	in	a	court	of	the	State,	and	

gives	 rise	 to	 a	 permissible	 inference	 .	 .	 .	 that	 the	 composition,	 quality	 and	

quantity	of	the	drug	or	substance	are	as	stated	in	the	certificate,	unless,	within	

10	 days[’]	 written	 notice	 to	 the	 prosecution,	 the	 defendant	 requests	 that	 a	

qualified	 witness”	 provide	 live	 testimony	 of	 those	 facts.1	 	 17-A	 M.R.S.	


    1		Title	17-A	M.R.S.	§	1112	(2017)	provides,	in	its	entirety,	as	follows:	

    	
        §	1112.	Analysis	of	scheduled	drugs		
    	
4	

§	1112(1);	 see	 State	 v.	 Navarro,	 621	 A.2d	 408,	 412	 (Me.	 1993)	 (“Once	 the	

defendant	 requests	 a	 qualified	 witness,	 the	 certificate	 is	 neither	 admissible	

nor	prima	facie	evidence	of	the	composition,	quality,	and	quantity	of	the	drug	

or	 substance	 stated	 therein.	 	 Once	 the	 request	 is	 made,	 the	 State	 has	 the	

burden	of	producing	a	witness	who	can	testify	as	to	the	analysis	procedures	

and	results.”	(citation	omitted)	(quotation	marks	omitted)).		Jones	agrees	that	

she	did	not	request,	within	ten	days	before	trial,	that	the	State	produce	a	live	

witness	 to	 identify	 the	 drug,	 and	 therefore	 does	 not	 appear	 to	 challenge	 the	

State’s	 or	 the	 court’s	 compliance	 with	 section	 1112.	 	 Rather,	 Jones	 contends	

that	 section	 1112	 is	 facially	 unconstitutional	 in	 that	 it	 violates	 the	

Confrontation	 Clause	 as	 interpreted	 by	 the	 United	 States	 Supreme	 Court	 in	




         					1.		A	laboratory	that	receives	a	drug	or	substance	from	a	law	enforcement	officer	
         or	agency	for	analysis	as	a	scheduled	drug	shall,	if	it	is	capable	of	so	doing,	analyze	
         the	 same	 as	 requested	 by	 a	 method	 designed	 to	 accurately	 determine	 the	
         composition	 of	 the	 substance,	 including	 by	 chemical	 means,	 visual	 examination,	 or	
         both,	and	shall	issue	a	certificate	stating	the	results	of	the	analysis.	The	certificate,	
         when	duly	signed	and	sworn	to	by	a	person	certified	as	qualified	for	this	purpose	by	
         the	Department	of	Health	and	Human	Services	under	certification	standards	set	by	
         that	department,	is	admissible	in	evidence	in	a	court	of	the	State,	and	gives	rise	to	a	
         permissible	 inference	 under	 the	 Maine	 Rules	 of	 Evidence,	 Rule	 303	 that	 the	
         composition,	 quality	 and	 quantity	 of	 the	 drug	 or	 substance	 are	 as	 stated	 in	 the	
         certificate,	unless,	within	10	days[’]	written	notice	to	the	prosecution,	the	defendant	
         requests	that	a	qualified	witness	testify	as	to	the	composition,	quality	and	quantity.		
     	
         					2.	 	 Transfers	 of	 drugs	 and	 substances	 to	 and	 from	 a	 laboratory	 for	 purposes	 of	
         analysis	 under	 this	 chapter	 may	 be	 by	 certified	 or	 registered	 mail,	 and	 when	 so	
         made	shall	be	deemed	to	comply	with	all	the	requirements	regarding	the	continuity	
         of	custody	of	physical	evidence.	
                                                                                                             5	

Melendez-Diaz	 v.	 Massachusetts,	 557	 U.S.	 305	 (2009).	 	 See	 U.S.	 Const.	 amend.	

VI.		

        [¶7]	 	 We	 review	 de	 novo	 the	 constitutionality	 of	 a	 statute,	 Doe	 v.	

Williams,	 2013	 ME	 24,	 ¶	 11,	 61	 A.3d	 718,	 giving	 the	 statute	 a	 “heavy	

presumption	 of	 constitutionality,”	 	 League	 of	 Women	 Voters	 v.	 Sec’y	 of	 State,	

683	 A.2d	 769,	 771	 (Me.	 1996).	 	 As	 the	 party	 challenging	 the	 facial	

constitutionality	 of	 the	 statute,	 it	 is	 Jones’s	 burden	 to	 establish,	 beyond	 a	

reasonable	doubt,	that	there	is	“no	set	of	circumstances”	in	which	the	statute	

may	 operate	 in	 a	 constitutional	 manner.	 	 Guardianship	 of	 Chamberlain,	 2015	

ME	76,	¶	10,	118	A.3d	229	(quotation	marks	omitted);	 see	League	of	Women	

Voters,	683	A.2d	at	771-72.	

A.	     Confrontation	Clause	Rights	

        [¶8]	 	 The	 Confrontation	 Clause—applicable	 to	 the	 states	 through	 the	

Fourteenth	 Amendment—requires	 that	 “[i]n	 all	 criminal	 prosecutions,	 the	

accused	shall	enjoy	the	right	.	.	.	to	be	confronted	with	the	witnesses	against	

him.”2		U.S.	Const.	amends.	VI,	XIV;	see	Melendez-Diaz,	557	U.S.	at	309;	State	v.	

Murphy,	2010	ME	28,	¶	9,	991	A.2d	35.		The	Supreme	Court	has	characterized	

the	 Confrontation	 Clause	 as	 a	 “procedural	 rather	 than	 a	 substantive	


   2	 	 The	 Maine	 Constitution	 similarly	 provides	 that	 “[i]n	 all	 criminal	 prosecutions,	 the	 accused	

shall	have	a	right	.	.	.	[t]o	be	confronted	by	the	witnesses	against	the	accused.”		Me.	Const.	art.	I,	§	6.	
6	

guarantee,”	 stating,	 “It	 commands,	 not	 that	 evidence	 be	 reliable,	 but	 that	

reliability	 be	 assessed	 in	 a	 particular	 manner:	 by	 testing	 in	 the	 crucible	 of	

cross-examination.”	 	 Crawford	 v.	 Washington,	 541	 U.S.	 36,	 61	 (2004);	 see	

Murphy,	2010	ME	28,	¶	11,	991	A.2d	35.		To	that	end,	the	Confrontation	Clause	

prohibits	 the	 “admission	 of	 testimonial	 statements	 of	 a	 witness	 who	 did	 not	

appear	at	trial	unless	he	was	unavailable	to	testify,	and	the	defendant	had	had	

a	prior	opportunity	for	cross-examination.”		Crawford,	541	U.S.	at	53-54.	

       [¶9]	 	 The	 Supreme	 Court	 has	 further	 clarified	 what	 is	 “testimonial”	

according	to	the	nature	and	purpose	of	the	evidence,	defining	“testimony”	as	

any	 “solemn	 declaration	 or	 affirmation	 made	 for	 the	 purpose	 of	 establishing	

or	 proving	 some	 fact.”	 	 Id.	 at	 51	 (quotation	 marks	 omitted).	 	 Thus,	 the	 “core	

class	of	testimonial	statements”	includes	(1)	“ex	parte	in-court	testimony	or	its	

functional	 equivalent”	 such	 as	 “affidavits,	 custodial	 examinations,	 prior	

testimony	that	the	defendant	was	unable	to	cross-examine,	or	similar	pretrial	

statements	 that	 declarants	 would	 reasonably	 expect	 to	 be	 used	

prosecutorially”;	 (2)	 “extrajudicial	 statements	 contained	 in	 formalized	

testimonial	 materials,	 such	 as	 affidavits,	 depositions,	 prior	 testimony,	 or	

confessions”;	and	(3)	“statements	that	were	made	under	circumstances	which	

would	 lead	 an	 objective	 witness	 reasonably	 to	 believe	 that	 the	 statement	
                                                                                             7	

would	 be	 available	 for	 use	 at	 a	 later	 trial.”	 	 Id.	 at	 51-52	 (alteration	 omitted)	

(quotation	marks	omitted).				

        [¶10]	 	 In	 Melendez-Diaz,	 the	 Supreme	 Court	 considered	 the	

Confrontation	 Clause	 implications	 of	 a	 Massachusetts	 statute	 that	 allowed	

prosecutors	 to	 have	 admitted	 in	 evidence	 a	 certificate	 of	 the	 lab	 analysis	

identifying	the	quality,	quantity,	and	type	of	drugs	in	lieu	of	the	live	testimony	

of	the	chemist	who	performed	that	analysis.		557	U.S.	at	308-09.		In	that	case,	

the	defendant	was	charged	with	distributing	and	trafficking	in	cocaine.		Id.	at	

308.	 	 At	 trial,	 the	 prosecution	 offered	 three	 “certificates	 of	 analysis”	 from	

forensic	analysts	at	the	state	laboratory,	identifying	as	cocaine	the	substance	

found	 in	 the	 defendant’s	 possession	 during	 a	 search.	 	 Id.	 (quotation	 marks	

omitted).		In	accordance	with	the	statute,	the	court	admitted	the	certificates	as	

prima	facie	evidence	of	the	composition,	quality,	and	quantity	of	the	substance	

analyzed.		Id.	at	308-09.		The	defendant	was	convicted	of	the	offenses	without	

any	live	testimony	as	to	the	type	and	quantity	of	drugs	seized	from	him.		Id.	at	

309.	

        [¶11]	 	 The	 Supreme	 Court	 determined	 that	 the	 certificates—sworn	 to	

before	 a	 notary	 public—were	 “quite	 plainly	 affidavits,”	 and	 therefore	

constituted	testimonial	statements	subject	to	Confrontation	Clause	protection.		
8	

Id.	at	308,	310.		The	Court	therefore	concluded	that,	as	with	any	other	forms	of	

testimony,	“[a]bsent	a	showing	that	the	analysts	were	unavailable	to	testify	at	

trial	and	that	[the	defendant]	had	a	prior	opportunity	to	cross-examine	them,	

[the	defendant]	was	entitled	to	be	confronted	with	the	analysts	at	trial.”		Id.	at	

311	 (quotation	 marks	 omitted).	 	 On	 that	 basis,	 the	 Supreme	 Court	 reversed	

the	defendant’s	conviction	and	remanded	for	a	new	trial.		Id.	at	329.			

	       [¶12]	 	 We	 have	 not	 had	 occasion	 to	 consider,	 in	 the	 wake	 of	

Melendez-Diaz,	 the	 admission	 of	 a	 lab	 certificate	 identifying	 a	 controlled	

substance.3	 	 We	 now	 conclude	 that,	 in	 terms	 of	 its	 testimonial	 nature,	 the	

certificate	 at	 issue	 here	 is	 legally	 indistinguishable	 from	 that	 analyzed	 in	


    3		We	have	distinguished	Melendez-Diaz	v.	Massachusetts,	557	U.S.	305	(2009),	in	several	matters	

in	 which	 we	 concluded	 that	 the	 evidence	 at	 issue	 was	 not	 testimonial.	 	 State	 v.	 Woodbury,	
2011	ME	25,	 ¶¶	 1-3,	 13	A.3d	 1204	 (Secretary	 of	 State	 certificates	 containing	 information	 about	
driver’s	license	suspensions	or	revocations);	State	v.	Gilman,	2010	ME	35,	¶¶	7,	29-31,	993	A.2d	14	
(same);	 State	 v.	 Murphy,	 2010	 ME	 28,	 ¶¶	 1,	 21-26,	 991	A.2d	 35	 (same);	 see	 State	 v.	 Kimball,	 2015	
ME	67,	¶¶	22-30,	117	A.3d	585	(9-1-1	recordings	and	statements	to	emergency	medical	personnel);	
State	v.	Abdi,	2015	ME	23,	¶¶	23-26,	112	A.3d	360	(housing	forms);	State	v.	Ducasse,	2010	ME	117,	
¶¶	4-5,	 13,	 8	A.3d	 1252	 (a	 blood-alcohol	 kit	 manufacturer’s	 certificate	 of	 compliance	 as	 to	
manufacturing	 specifications);	 see	 also	 State	 v.	 Mercier,	 2014	 ME	 28,	 ¶¶	 9-14,	 87	A.3d	 700	 (live	
testimony	 of	 a	 medical	 examiner);	 State	 v.	 Mitchell,	 2010	 ME	 73,	 ¶¶	13,	 18,	 20,	 40-47,	 4	A.3d	478	
(same).	
    	
       In	 another	 case,	 we	 considered	 Maine’s	 second	 notice-and-demand	 statute,	 29-A	 M.R.S.	
§	2431(1),	(2)(D)	(2017),	which	allows	the	admission	of	a	blood,	urine,	or	breath	test	result	in	the	
context	 of	 motor	 vehicle	 offenses	 unless	 the	 defendant	 requests	 a	 live	 witness	 at	 least	 ten	 days	
before	trial.		State	v.	Tozier,	2015	ME	57,	¶¶	7-21,	115	A.3d	1240.		We	interpreted	the	results	of	a	
self-contained	 breath-alcohol	 testing	 apparatus	 known	 as	 an	 “Intoxilyzer”	 as	 nontestimonial	
because	they	did	not	involve	“laboratory	work	and	conclusions	of	an	analyst	in	lieu	of	the	analyst’s	
actual	testimony”:	“Unlike	such	a	report	drafted	by	a	laboratory	analyst	who	operates	sophisticated	
scientific	 testing	 equipment,	 .	 .	 .	 the	 only	 actions	 reflected	 in	 a	 certificate	 generated	 by	 a	
self-contained	 breath-alcohol	 machine	 are	 the	 internal	 actions	 of	 the	 machine	 itself.”	 	 Id.	 ¶¶	 2,	
21-22.	
                                                                                           9	

Melendez-Diaz.	 	 It	 identifies,	 after	 testing,	 that	 the	 substance	 obtained	 in	 the	

controlled	 purchase	 was	 136.1	 milligrams	 of	 methamphetamine.	 	 It	 is	 also	

signed	and	attested	to	by	a	State-certified	chemist,	who	prepared	the	analysis	

at	the	request	of	the	Maine	Drug	Enforcement	Agency.		In	short,	it	is	the	type	

of	certificate—or,	more	precisely,	affidavit—that	the	Supreme	Court	declared	

is	testimonial	in	Melendez-Diaz.		557	U.S.	at	310;	see	State	v.	Tozier,	2015	ME	

57,	 ¶	 20,	 115	 A.3d	 1240	 (“Confrontation	 Clause	 jurisprudence	 is	 concerned	

with	 the	 absence	 of	 those	 witnesses	 whose	 actions	 played	 a	 role	 in	 the	

generation	 of	 test	 results.”).	 	 Because	 it	 is	 testimonial,	 its	 admission	 triggers	

the	 protection	 of	 the	 Confrontation	 Clause,	 which	 requires	 that	 the	 attesting	

person—the	 State	 chemist—must	 have	 been	 both	 unavailable	 and	 subject	 to	

prior	 cross-examination	 by	 Jones.	 	 See	 Melendez-Diaz,	 557	 U.S.	 at	 309-10.		

Here,	there	is	no	suggestion	in	the	record	that	the	chemist	was	unavailable	or	

subject	to	prior	cross-examination	by	Jones.			

B.	    Waiver	of	Right	of	Confrontation	

       [¶13]	 	 That	 Jones	 has	 a	 constitutional	 right,	 as	 spelled	 out	 in	

Melendez-Diaz,	 to	 confront	 the	 State’s	 chemist	 at	 trial	 is	 not	 the	 end	 of	 the	

inquiry,	 however.	 	 As	 the	 Supreme	 Court	 and	 we	 have	 recognized	 on	

numerous	 occasions,	 a	 defendant	 may	 waive	 any	 right,	 including	 one	 of	
10	

constitutional	 dimension.	 	 See,	 e.g.,	 Maryland	 v.	 Shatzer,	 559	 U.S.	 98,	 104	

(2010);	Johnson	v.	Zerbst,	304	U.S.	458,	464	(1938);	State	v.	Hill,	2014	ME	16,	

¶	5,	 86	 A.3d	 628;	 State	 v.	 Ericson,	 2011	 ME	 28,	 ¶	 15,	 13	 A.3d	 777.	 	 “Waiver	

occurs	 when	 a	 defendant	 voluntarily,	 knowingly,	 and	 intentionally	

relinquishes	or	abandons	a	known	right.”		State	v.	True,	2017	ME	2,	¶	14,	153	

A.3d	 106;	 see	 Shatzer,	 559	U.S.	 at	 104.	 	 Nevertheless,	 a	 waiver	 of	 a	

constitutional	 right	 need	 not	 be	 express	 in	 the	 record,	 State	 v.	 Murphy,	

2015	ME	 62,	 ¶	 21,	 124	 A.3d	 647,	 and	 may	 instead	 be	 inferred	 based	 on	 the	

defendant’s	conduct	given	the	totality	of	the	circumstances,	Ericson,	2011	ME	

28,	 ¶	 16,	 13	 A.3d	 777.	 	 See	 Melendez-Diaz,	 557	 U.S.	 at	 325-26	 &	 n.10	

(mentioning	“forfeit[ure]	by	silence”);	State	v.	Watson,	2006	ME	80,	¶	27,	900	

A.2d	702	(“As	with	the	right	to	jury	trial,	the	right	to	counsel	may	be	waived	

by	 a	 defendant’s	 inaction.”);	 State	 v.	 Caulfield,	 722	 N.W.2d	 304,	 311	 (Minn.	

2016)	 (“[C]onfrontation	 rights	 are	 not	 among	 those	 .	 .	 .	 that	 require	 an	

affirmative	 waiver	 in	 writing	 or	 on	 the	 record.”).	 	 A	 defendant	 is	 also	 not	

relieved	 from	 complying	 with	 “established	 rules	 of	 procedure	 and	 evidence	

designed	 to	 assure	 both	 fairness	 and	 reliability	 in	 the	 ascertainment	 of	 guilt	

and	 innocence”	 just	 because	 there	 is	 a	 constitutional	 right	 at	 stake.	 	 Ericson,	

2011	ME	28,	¶	17,	13	A.3d	777	(quotation	marks	omitted).	
                                                                                       11	

      [¶14]	 	 To	 verify	 that	 a	 defendant	 did	 voluntarily,	 knowingly,	 and	

intentionally	 relinquish	 a	 right,	 we	 review	 any	 express	 or	 implicit	 factual	

findings	 regarding	 such	 waiver	 for	 clear	 error,	 and	 we	 review	 de	 novo	 the	

legal	 conclusion	 based	 on	 those	 facts.	 	 Hill,	 2014	 ME	 16,	 ¶	 5,	 86	A.3d	 628.		

Although	 it	 did	 not	 phrase	 it	 as	 such,	 the	 court	 in	 this	 matter	 essentially	

concluded	that	Jones	waived	her	right	to	confront	the	State	chemist	when	she	

failed	to	request	a	live	witness	at	least	ten	days	before	trial.		Because	there	is	

no	 factual	 dispute	 that	 Jones	 did	 not	 make	 any	 such	 request,	 the	 only	 issue	

before	 us	 is	 the	 legal	 conclusion	 that	 her	 failure	 to	 do	 so	 constitutes	 a	

voluntary,	knowing,	and	intentional	waiver.		

      [¶15]	 	 In	 Melendez-Diaz,	 the	 Supreme	 Court	 recognized	 so-called	

“notice-and-demand	 statutes”	 as	 a	 means	 by	 which	 a	 defendant	 may	 waive	

Confrontation	 Clause	 rights.	 	 557	 U.S.	 at	 326.	 	 The	 Court	 characterized	

notice-and-demand	 statutes,	 “[i]n	 their	 simplest	 form,	 [to]	 require	 the	

prosecution	to	provide	notice	to	the	defendant	of	its	intent	to	use	an	analyst’s	

report	as	evidence	at	trial,	after	which	the	defendant	is	given	a	period	of	time	

in	which	he	may	object	to	the	admission	of	the	evidence	absent	the	analyst’s	

appearance	 live	 at	 trial.”	 	 Id.	 	 The	 Supreme	 Court	 approved	 the	 use	 of	 such	

notice-and-demand	 statutes,	 reasoning	 that	 states	 are	 “free	 to	 adopt	
12	

procedural	rules	governing	objections,”	such	statutes	maintain	the	burden	on	

the	defendant	to	raise	a	timely	Confrontation	Clause	objection,	and	“[t]here	is	

no	 conceivable	 reason”	 why	 a	 defendant	 cannot	 be	 required	 to	 exercise	 her	

Confrontation	Clause	rights	in	advance	of	trial.		Id.	at	327	&	n.12.			

      [¶16]	 	 The	 State	 contends	 that	 section	 1112	 constitutes	 just	 such	 a	

statute,	 but	 Jones	 argues	 that	 the	 provision	 does	 not	 constitute	 the	 type	 of	

notice-and-demand	 statute	 that	 the	 Supreme	 Court	 sanctioned	 as	 a	

constitutional	means	for	enforcing	a	defendant’s	waiver	of	her	Confrontation	

Clause	rights	because	it	does	not	require	the	State	to	inform	a	defendant	of	its	

intent	to	offer	a	certificate	at	trial	in	lieu	of	live	testimony.		

      [¶17]	 	 Although	 the	 Supreme	 Court	 did	 not	 purport	 to	 sanction	 every	

possible	form	of	notice-and-demand	statute,	it	did	cite	the	notice-and-demand	

statutes	 of	 Georgia,	 Ohio,	 and	 Texas	 as	 examples	 of	 provisions	 that	 comply	

with	 Confrontation	 Clause	 requirements.	 	 Id.	 at	 326,	 327	 n.12;	 see	 Ga.	 Code	

Ann.	 §	35-3-154.1	 (LEXIS	 through	 2017	 Regular	 Sess.	 of	 the	 Gen.	 Assemb.);	

Ohio	Rev.	Code	Ann.	§	2925.51	(LEXIS	through	legis.	passed	by	the	132nd	Gen.	

Assemb.);	Tex.	Code	Crim.	Proc.	Ann.	art.	38.41	(LEXIS	through	2017	Regular	
                                                                                                     13	

Sess.	and	1st	C.S.,	85th	Leg.).		We	review	each	of	these	three	statutes	deemed	

constitutional	by	the	Supreme	Court,	and	we	compare	them	to	section	1112.4	

      [¶18]	 	 Georgia’s	 statute	 provides	 that	 the	 prosecutor	 must	 serve	 the	

defendant	 with	 a	 copy	 of	 a	 lab	 report	 “prior	 to”	 trial.	 	 Ga.	 Code	 Ann.	

§	35-3-154.1(c)-(d).	 	 If	 the	 defendant	 objects	 in	 writing	 at	 least	 ten	 days	

before	trial,	the	court	“shall	require”	the	witness	to	testify	in	person	and	the	

prosecution	 may	 not	 use	 the	 report	 as	 prima	 facie	 evidence	 of	 its	 contents.		

Ga.	Code	Ann.	§	35-3-154.1(e).	

      [¶19]	 	 Ohio’s	 notice-and-demand	 statute	 also	 provides	 that	 the	

prosecution	must	serve	the	defendant	with	a	copy	of	the	report	“prior	to”	trial.		

Ohio	Rev.	Code	Ann.	§	2925.51(B).		If	the	defendant	serves	on	the	prosecution	

a	demand	for	live	testimony	within	seven	days	after	receipt	of	the	report,	the	

report	may	not	be	used	as	prima	facie	evidence	of	its	contents.		Ohio	Rev.	Code	

Ann.	§	2925.51(C).			

      [¶20]	 	 Similarly,	 Texas’s	 notice-and-demand	 statute	 provides	 that	 the	

prosecution	must	file	the	certificate	of	analysis	with	the	court	and	serve	it	on	




  4		The	complete	text	of	each	of	the	three	statutes	is	reproduced	in	Appendix	A	to	this	opinion.	

  	
14	

the	 defendant	 at	 least	 twenty	 days	 before	 trial.5	 	 Tex.	 Code	 Crim.	 Proc.	 Ann.	

art.	38.41,	§	4.		The	certificate	is	not	admissible	if	the	defendant	files	a	written	

objection	to	the	use	of	the	certificate	at	least	ten	days	before	trial.		Tex.	Code	

Crim.	Proc.	Ann.	art.	38.41,	§	4.	

	       [¶21]	 	 In	 terms	 of	 notice,	 all	 three	 statutes	 share	 the	 requirement	 that	

the	 prosecutor	 provide	 the	 defendant	 with	 a	 copy	 of	 the	 certificate	 before	

trial.6	 	 All	 three	 statutes	 require	 the	 prosecution	 to	 provide	 notice	 of	 the	

existence	and	contents	of	the	report,	and	to	serve	the	report	on	the	defendant	

or	 her	 counsel	 before	 trial,	 but	 none	 specifically	 requires	 the	 prosecution	 to	

notify	the	defendant	that	it	intends	to	use	the	report	in	lieu	of	live	testimony	




    5		Texas’s	notice-and-demand	statute	has	been	amended	since	Melendez-Diaz	was	issued	in	2009,	

but	 those	 amendments	 do	 not	 affect	 the	 analysis	 undertaken	 in	 Melendez-Diaz	 or	 in	 the	 instant	
matter.		See	2013	Tex.	Gen.	Laws	78	(West)	(effective	May	18,	2013).	
   	
   6		Each	of	the	statutes	also	contains	minimum	requirements	for	the	contents	of	the	report—e.g.,	

the	name	of	the	analyst,	that	the	laboratory	is	accredited,	a	summary	of	the	analyst’s	education	and	
experience,	 and	 a	 description	 of	 the	 procedures	 used.	 	 Ga.	 Code	 Ann.	 §	 35-3-154.1(b)	 (LEXIS	
through	2017	Regular	Sess.	of	the	Gen.	Assemb.);	Ohio	Rev.	Code	Ann.	§	2925.51(A)	(LEXIS	through	
legis.	 passed	 by	 the	 132nd	 Gen.	 Assemb.);	 Tex.	 Code	 Crim.	 Proc.	 Ann.	 art.	 38.41,	 §§	 3,	 5	 (LEXIS	
through	2017	Regular	Sess.	and	1st	C.S.,	85th	Leg.).		The	Supreme	Court	gave	no	hint,	however,	that	
the	 contents	 of	 the	 report	 itself	 are	 relevant	 to	 a	 Confrontation	 Clause	 analysis	 beyond	 the	
determination	of	whether	the	report	is	testimonial.		See	Melendez-Diaz,	557	U.S.	at	310,	326-28.		In	
any	event,	17-A	M.R.S.	§	1112	shares	the	requirements	that	the	certificate	be	signed	and	sworn	to	
by	a	person	qualified	to	issue	such	results	according	to	Department	of	Health	and	Human	Services	
certification	standards,	and	that	the	analysis	was	conducted	using	“a	method	designed	to	accurately	
determine	 the	 composition	 of	 the	 substance.”	 	 Section	 1112	 is	 therefore	 indistinguishable	 on	 this	
basis.			
   	
                                                                                                               15	

at	 trial.7	 	 Ga.	Code	 Ann.	 §	 35-3-154.1(c);	 Ohio	 Rev.	 Code	 Ann.	 §	 2925.51(B);	

Tex.	Code	Crim.	Proc.	Ann.	art.	38.41,	§	4.		Further,	Georgia	requires	service	on	

the	defendant	only	“prior	to”	trial,	even	though	it	also	requires	the	defendant	

to	 demand	 a	 live	 witness	 within	 a	 certain	 number	 of	 days	 (ten	 days)	 before	

trial.8	 	 Ga.	 Code	 Ann.	 §	 35-3-154.1(c),	 (e);	 see	 Ohio	 Rev.	 Code	 Ann.	

§	2925.51(B)	(requiring	service	on	the	defendant	“prior	to”	trial).		

        [¶22]	 	 Unlike	 the	 notice-and-demand	 statutes	 of	 Georgia,	 Ohio,	 and	

Texas,	 section	 1112	 does	 not	 require	 the	 State	 to	 serve	 the	 defendant	 with	 a	

copy	 of	 the	 certificate	 of	 analysis,	 but	 another	 Maine	 provision—

M.R.U.	Crim.	P.	16—does	require	the	State	to	provide	a	copy	to	the	defendant.		

Rule	 16	 requires	 the	 State	 to	 provide	 automatic	 discovery	 to	 the	 defendant,	

including	“[a]ny	reports	or	statements	of	experts,	made	in	connection	with	the	

particular	 case,	 including	 results	 of	 .	 .	 .	 scientific	 tests,	 experiments,	 or	

comparisons.”		M.R.U.	Crim.	P.	16(a)(2)(G).		For	a	Class	B	offense	such	as	the	

    7	 	 All	 three	 comparison	 statutes	 set	 the	 timeline	 for	 service	 of	 the	 report	 according	 to	 the	

proximity	 to	 trial;	 Georgia	 requires	 that	 it	 must	 be	 served	 on	 the	 defendant	 “prior	 to	 the	 first	
proceeding	in	which	the	report	is	to	be	used	against	the	defendant,”	Ga.	Code	Ann.	§	35-3-154.1(c)	
(LEXIS	through	2017	Regular	Sess.	of	the	Gen.	Assemb.);	Ohio	requires	that	it	must	be	served	“prior	
to	 any	 proceeding	 in	 which	 the	 report	 is	 to	 be	 used	 against	 the	 accused,”	 Ohio	 Rev.	 Code	 Ann.	
§	2925.51(B)	(LEXIS	through	legis.	passed	by	the	132nd	Gen.	Assemb.);	and	Texas	requires	that	it	
must	 be	 served	 “[n]ot	 later	 than	 the	 20th	 day	 before	 the	 trial	 begins	 in	 a	 proceeding	 in	 which	 a	
certificate	of	analysis	under	this	article	is	to	be	introduced,”	Tex.	Code	Crim.	Proc.	Ann.	art.	38.41,	
§	4	(LEXIS	through	2017	Regular	Sess.	and	1st	C.S.,	85th	Leg.).	
    	
    8	 	 Texas	 requires	 the	 prosecution	 to	 serve	 the	 report	 on	 the	 defendant	 at	 least	 twenty	 days	

before	trial.		Tex.	Code	Crim.	Proc.	Ann.	art.	38.41,	§	4.	
    	
16	

one	 with	 which	 Jones	 was	 charged,	 the	 State	 must	 provide	 such	 materials	 at	

the	 initial	 appearance	 or	 arraignment,	 or	 within	 fourteen	 days	 after	 that	

material	 “comes	 within	 the	 possession	 or	 control	 of	 the	 attorney	 for	 the	

State.”9		M.R.U.	Crim.	P.	16(b)(1),	(3)-(5).			

        [¶23]		Although	it	is	true	that	section	1112	does	not	require	the	State	to	

notify	 the	 defendant	 that	 it	 intends	 to	 introduce	 the	 certificate	 in	 lieu	 of	 live	

testimony,	 neither	 do	 the	 notice-and-demand	 statutes	 of	 Georgia,	 Ohio,	 and	

Texas.		Defendant’s	argument	that	she	was	unaware	that	the	State	intended	to	

use	the	certificate,	despite	having	received	a	copy	of	it	in	discovery,	therefore	

provides	 no	 support	 for	 her	 contention	 that	 section	 1112	 is	 facially	

unconstitutional.		

        [¶24]	 	 Thus,	 section	 1112,	 in	 combination	 with	 Rule	 16,	 provides	 a	

defendant	 in	 Maine	 with	 precisely	 the	 same	 notice	 and	 within	 at	 least	 the	

same	time	constraints	as	the	Georgia	and	Ohio	statutes.10		


   9	 	 Jones	 does	 not	 argue	 that	 the	 State	 violated	 the	 automatic	 discovery	 requirements	 of	
M.R.U.	Crim.	P.	16.	
   	
   10		There	is	no	reason	to	distinguish	section	1112	from	the	others	we	discuss	based	on	the	fact	

that	 the	 notice	 requirement	 derives	 from	 rule	 rather	 than	 statute.	 	 In	 Colorado,	 for	 example,	 the	
notice-and-demand	 statute	 contains	 no	 mention	 of	 the	 notice	 the	 prosecutor	 is	 to	 provide	 the	
defendant	 regarding	 its	 use	 of	 a	 lab	 report	 at	 trial,	 but	 requires	 the	 defendant	 to	 request	 live	
testimony	 at	 least	 fourteen	 days	 before	 trial.	 	 Colo.	 Rev.	 Stat.	 §	 16-3-309(5)	 (LEXIS	 through	 71st	
Gen.	 Assemb.).	 	 The	 Colorado	 Supreme	 Court	 held	 that	 its	 statute	 was	 constitutional	
notwithstanding	 Melendez-Diaz,	 reasoning	 that	 “providing	 the	 defense	 with	 a	 forensic	 lab	 report	
through	discovery	is	sufficient	to	put	the	defendant	on	notice	that,	absent	a	specific	request	under	
[the	notice-and-demand	statute],	the	report	can	be	introduced	without	live	testimony.”		Cropper	v.	
                                                                                                                    17	

         [¶25]	 	 In	 terms	 of	 demand,	 Georgia	 and	 Texas	 share	 the	 requirement	

that	the	defendant	object	in	writing	to	the	admission	of	the	report	at	least	ten	

days	before	trial.11		Ga.	Code	Ann.	§	35-3-154.1(e);	Tex.	Code	Crim.	Proc.	Ann.	

art.	 38.41,	 §	 4.	 	 Maine’s	 demand	 provision	 is	 indistinguishable;	 section	 1112	

requires	 the	 defendant	 to	 provide	 at	 least	 ten	 days’	 written	 notice	 to	 the	

prosecution	 that	 she	 requests	 a	 live	 witness	 to	 testify	 regarding	 the	 analysis	

results.12		17-A	M.R.S.	§	1112(1).		


People,	 251	 P.3d	 434,	 434-37	 (Colo.	 	 2011).	 	 In	 Iowa	 as	 well,	 the	 notice-and-demand	 statute	
requires	that	the	county	attorney	must	provide	a	copy	of	any	such	lab	results	“whether	or	not	such	
findings	 are	 to	 be	 used	 in	 evidence	 against	 the	 accused	 person,”	 Iowa	 Code	 Ann.	 §	 691.4	 (LEXIS	
through	 legis.	 from	 the	 2017	 Regular	 Sess.	 of	 the	 87th	 Gen.	 Assemb.),	 just	 as	 M.R.U.	 Crim.	 P.	
16(a)(1)	 requires	 disclosure	 of	 such	 discovery	 without	 regard	 for	 its	 intended	 use	 at	 trial.		
Similarly,	 in	 South	 Carolina,	 the	 admissibility	 of	 lab	 reports	 is	 set	 out	 entirely	 by	 rule	 rather	 than	
statute.		S.C.	R.	Crim.	P.	6.	
    	
    11		Ohio	requires	that	the	accused	demand	a	live	witness	within	seven	days	after	receipt	of	the	

report.		Ohio	Rev.	Code	Ann.	§	2925.51(C)	(LEXIS	through	legis.	passed	by	the	132nd	Gen.	Assemb.).	
    	
    12	 	 The	 fact	 that	 the	 State	 identified	 a	 chemist	 on	 its	 witness	 list	 did	 not	 absolve	 Jones	 of	 her	

responsibility	to	assert	her	Confrontation	Clause	rights	in	a	timely	fashion.		See	Cropper,	251	P.3d	at	
437-48	&	nn.5-6	(“Regardless	of	any	representations	that	the	prosecution	made	that	the	technician	
would	 testify,	 [the	 defendant]	 had	 notice	 of	 the	 presence	 of	 the	 report	 and	 had	 an	 adequate	
opportunity	 to	 assert	 [the	 defendant’s]	 confrontation	 rights	 and	 request	 that	 the	 technician	 be	
present	for	cross-examination.”);	see	also	Jones	v.	State,	No.	CACR11-19,	2011	Ark.	App.	LEXIS	724,	
at	 **8	 (Ark.	 Ct.	 App.	 Nov.	 9,	 2011)	 (“Appellant	 cites	 no	 authority	 for	 his	 argument	 that	 he	 was	
excused	 from	 the	 notice	 requirement	 because	 the	 analyst	 appeared	 on	 the	 prosecution’s	 witness	
list.”).		Nevertheless,	to	avoid	the	need	for	a	defendant	in	every	case	to	make	a	prophylactic	request	
for	 a	 live	 witness,	 the	 best	 practice	 is	 for	 the	 State	 to	 inform	 the	 defendant	 at	 the	 dispositional	
conference	 whether	 it	 intends	 to	 call	 the	 chemist	 as	 a	 witness	 or	 rely	 on	 the	 lab	 certificate	 alone.		
See	 M.R.U.	 Crim.	 P.	 18.	 	 Further,	 although	 section	 1112	 contains	 no	 time	 frame	 for	 the	 State’s	
obligation	to	provide	the	certificate	to	the	defendant,	Rule	16	does.		The	State’s	failure	to	provide	
the	certificate	in	compliance	with	Rule	16	may	result	in	a	sanction	for	violation	of	the	discovery	rule	
or,	 at	 a	 minimum,	 a	 continuance	 of	 trial	 to	 allow	 the	 defendant	 to	 timely	 request	 that	 the	 State	
produce	a	witness.		See	M.R.U.	Crim.	P.	16(e);	State	v.	Carr,	2012	ME	136,	¶	9,	58	A.3d	1102;	see	also	
Iowa	Code	Ann.	§	691.4	(stating	that	if	the	county	attorney	does	not	provide	a	copy	of	the	report	at	
least	four	days	before	trial,	“such	fact	shall	be	grounds	for	a	continuance”).		
    	
18	

         [¶26]	 	 We	 conclude	 that	 section	 1112	 is	 legally	 indistinguishable	 from	

the	 notice-and-demand	 statutes	 that	 the	 Supreme	 Court	 in	 Melendez-Diaz	

specifically	 deemed	 constitutional	 on	 Confrontation	 Clause	 grounds.	 	 We	

therefore	 decline	 Jones’s	 request	 to	 declare	 section	 1112	 facially	

unconstitutional	 on	 this	 basis.13	 	 Jones’s	 failure	 to	 timely	 demand	 a	 live	

witness	 pursuant	 to	 section	 1112	 effected	 a	 voluntary,	 knowing,	 and	

intentional	 waiver	 of	 her	 known	 Confrontation	 Clause	 rights,	 and	 the	 court	


   13	 	 Nor	 are	 we	 persuaded	 by	 the	 State’s	 argument	 that	 a	 defendant	 waives	 her	 right	 of	
confrontation	 by	 failing	 to	 indicate	 that	 she	 has	 a	 “genuine	 intention	 to	 challenge	 the	 conclusions	
contained	in	the	report	of	an	analyst.”		Specifically,	the	State	points	out	that	Jones	“did	not	provide	
the	trial	court	with	an	offer	of	proof	that	the	drugs	in	questions	were	not	methamphetamine,	that	
the	State’s	chemist	was	not	competent,	used	flawed	science	to	test	the	drugs,	or	that	in	some	way	
the	live	testimony	of	the	chemist	would	be	expected	to	be	compromised.”	
   	
       This	 argument	 rests	 on	 a	 misreading	 of	 Melendez-Diaz.	 	 In	 its	 opinion,	 the	 Supreme	 Court	
expressly	 declined	 to	 discuss	 the	 constitutionality	 of	 notice-and-demand	 statutes	 that	 require	 a	
defendant’s	good	cause	for	demanding	a	live	witness.		557	U.S.	at	327	n.12.		The	Supreme	Court’s	
discussion	 of	 the	 Confrontation	 Clause	 is	 also	 devoid	 of	 any	 mention	 of	 the	 defendant’s	 duty	 to	
mount	an	actual	challenge	to	the	testimony	in	question.		See	id.	at	309-11;	see	also	State	v.	Laturner,	
218	P.3d	 23,	 32-40	 (Kan.	 2009)	 (invalidating	 that	 portion	 of	 Kansas’s	 former	 notice-and-demand	
statute	that	required	the	defendant	to	demonstrate	the	grounds	for	his	objection	to	the	admission	
of	a	certificate	in	lieu	of	live	testimony	and	his	intent	to	actually	cross-examine	the	witness	at	trial);	
City	of	 Reno	 v.	 Howard,	 318	 P.3d	 1063,	 1064	 (Nev.	 2014)	 (declaring	 that	 the	 Nevada	 statute’s	
“substantial-and-bona-fide-dispute	 requirement	 impermissibly	 burdens	 the	 right	 to	 confront	 the	
declarant”).		It	is	the	defendant’s	right	to	cross-examine,	not	her	actual	intent	to	do	so,	that	is	the	
crux	 of	 the	 Confrontation	 Clause.	 	 See	 Melendez-Diaz,	 557	 U.S.	 at	 309.	 	 Furthermore,	 section	 1112	
contains	 no	 requirement	 that	 the	 defendant	 demonstrate	 the	 nature	 or	 extent	 of	 her	 anticipated	
challenge	to	lab	analysis	results	to	justify	her	request	for	the	live	testimony	of	the	chemist,	and	we	
decline	to	impute	one	into	the	statute.			
   	
      Rather	than	making	enforcement	of	Confrontation	Clause	rights	dependent	on	the	defendant’s	
intent	to	mount	a	genuine	challenge	to	the	live	witness’s	testimony,	the	Supreme	Court	has	simply	
encouraged	 patience—“[W]e	 do	 not	 cast	 aspersions	 on	 trial	 judges,	 who	 we	 trust	 will	 not	 be	
antagonized	 by	 good-faith	 requests	 for	 analysts’	 appearance	 at	 trial”—and	 discouraged	
inefficiency—“We	simply	do	not	expect	defense	attorneys	to	believe	that	their	clients’	interests	(or	
their	 own)	 are	 furthered	 by	 objections	 to	 analysts’	 reports	 whose	 conclusions	 counsel	 have	 no	
intention	of	challenging.”		Id.	at	328	n.13.			
                                                                                   19	

therefore	did	not	err	by	allowing	the	State	to	introduce	at	trial	the	chemist’s	

certificate	in	lieu	of	live	testimony.			

         The	entry	is:	

                            Judgment	affirmed.		
	
	     	     	      	      	      	
	
John	W.	Tebbetts,	Esq.	(orally),	Presque	Isle,	for	appellant	Macie	Jones	
	
John	M.	Pluto,	Asst.	Dist.	Atty.	(orally),	Prosecutorial	District	No.	8,	Caribou,	for	
appellee	State	of	Maine	
	
	
Aroostook	County	Unified	Criminal	Docket	docket	number	CR-2016-106	
FOR	CLERK	REFERENCE	ONLY	
	                                	
20	

                                       APPENDIX	A	
	
                          Ga.	Code	Ann.	§	35-3-154.1		
             (LEXIS	through	2017	Regular	Sess.	of	the	Gen.	Assemb.)	
	
§	35-3-154.1.	Admission	of	reports	from	state	crime	laboratory	
	
      (a)		A	copy	of	a	report	of	the	methods	and	findings	of	any	examination	
            or	analysis	conducted	by	an	employee	of	the	state	crime	laboratory	
            or	 an	 employee	 of	 a	 laboratory	 with	 which	 the	 state	 crime	
            laboratory	 has	 a	 contract	 for	 the	 provision	 of	 laboratory	 or	
            scientific	 examination	 or	 analysis,	 authenticated	 under	 oath,	 is	
            prima-facie	evidence	in	court	proceedings	in	this	state	of	the	facts	
            contained	therein.	
	
      (b)		The	report	shall	have	the	effect	as	if	the	person	who	performed	the	
            analysis	 or	 examination	 had	 personally	 testified	 and	 shall	 have	 an	
            affidavit	of	the	employee	stating:	
	
              (1)		That	he	or	she	is	certified	to	perform	the	requisite	analysis	or	
                   examination;	
              	
              (2)		His	or	her	experience	as	a	chemist	or	analyst	and	as	an	expert	
                   witness	testifying	in	court;	and	
              	
              (3)		That	he	or	she	conducted	the	tests	shown	on	the	report	using	
                   procedures	approved	by	the	bureau	and	the	report	accurately	
                   reflects	his	or	her	opinion	regarding	the	results.	
	
      (c)		 The	 prosecuting	 attorney	 shall	 serve	 a	 copy	 on	 the	 defendant’s	
            attorney	 of	 record,	 or	 on	 the	 defendant	 if	 pro	 se,	 prior	 to	 the	 first	
            proceeding	in	which	the	report	is	to	be	used	against	the	defendant.	
	
      (d)		Any	report	under	this	Code	section	shall	contain	notice	of	the	right	
            to	demand	the	testimony	of	the	person	signing	the	report.	
	
      (e)		 The	 defendant	 may	 object	 in	 writing	 any	 time	 after	 service	 of	 the	
            report,	but	at	least	ten	days	prior	to	trial,	to	the	introduction	of	the	
                                                                                          21	

            report.	If	objection	is	made,	the	judge	shall	require	the	employee	to	
            be	 present	 to	 testify.	 The	 state	 shall	 diligently	 investigate	 the	
            witness’s	 availability	 and	 report	 to	 the	 court.	 If	 the	 witness	 is	 not	
            available	on	a	timely	basis,	the	court	shall	grant	a	continuance.	
	
******************************************************************************	
                           Ohio	Rev.	Code	Ann.	§	2925.51		
           (LEXIS	through	legis.	passed	by	the	132nd	Gen.	Assemb.)	
	
§	2925.51	Laboratory	report	as	evidence;	requirements;	violation.	
	
      (A)		In	 any	 criminal	 prosecution	 for	 a	 violation	 of	 this	 chapter	 or	
           Chapter	 3719.	 of	 the	 Revised	 Code,	 a	 laboratory	 report	 from	 the	
           bureau	 of	 criminal	 identification	 and	 investigation,	 a	 laboratory	
           operated	 by	 another	 law	 enforcement	 agency,	 or	 a	 laboratory	
           established	 by	 or	 under	 the	 authority	 of	 an	 institution	 of	 higher	
           education	 that	 has	 its	 main	 campus	 in	 this	 state	 and	 that	 is	
           accredited	by	the	association	of	American	universities	or	the	north	
           central	association	of	colleges	and	secondary	schools,	primarily	for	
           the	 purpose	 of	 providing	 scientific	 services	 to	 law	 enforcement	
           agencies	and	signed	by	the	person	performing	the	analysis,	stating	
           that	the	substance	that	is	the	basis	of	the	alleged	offense	has	been	
           weighed	 and	 analyzed	 and	 stating	 the	 findings	 as	 to	 the	 content,	
           weight,	 and	 identity	 of	 the	 substance	 and	 that	 it	 contains	 any	
           amount	of	a	controlled	substance	and	the	number	and	description	
           of	unit	dosages,	is	prima-facie	evidence	of	the	content,	identity,	and	
           weight	 or	 the	 existence	 and	 number	 of	 unit	 dosages	 of	 the	
           substance.	 In	 any	 criminal	 prosecution	 for	 a	 violation	 of	 section	
           2925.041	 of	 the	 Revised	 Code	 or	 a	 violation	 of	 this	 chapter	 or	
           Chapter	3719.	of	the	Revised	Code	that	is	based	on	the	possession	
           of	 chemicals	 sufficient	 to	 produce	 a	 compound,	 mixture,	
           preparation,	 or	 substance	 included	 in	 schedule	 I,	 II,	 III,	 IV,	 or	 V,	 a	
           laboratory	 report	 from	 the	 bureau	 or	 from	 any	 laboratory	 that	 is	
           operated	or	established	as	described	in	this	division	that	is	signed	
           by	 the	 person	 performing	 the	 analysis,	 stating	 that	 the	 substances	
           that	 are	 the	 basis	 of	 the	 alleged	 offense	 have	 been	 weighed	 and	
           analyzed	 and	 stating	 the	 findings	 as	 to	 the	 content,	 weight,	 and	
22	

           identity	 of	 each	 of	 the	 substances,	 is	 prima-facie	 evidence	 of	 the	
           content,	identity,	and	weight	of	the	substances.	
      	
           Attached	to	that	report	shall	be	a	copy	of	a	notarized	statement	by	
           the	 signer	 of	 the	 report	 giving	 the	 name	 of	 the	 signer	 and	 stating	
           that	the	signer	is	an	employee	of	the	laboratory	issuing	the	report	
           and	 that	 performing	 the	 analysis	 is	 a	 part	 of	 the	 signer’s	 regular	
           duties,	and	giving	an	outline	of	the	signer’s	education,	training,	and	
           experience	for	performing	an	analysis	of	materials	included	under	
           this	section.	The	signer	shall	attest	that	scientifically	accepted	tests	
           were	 performed	 with	 due	 caution,	 and	 that	 the	 evidence	 was	
           handled	 in	 accordance	 with	 established	 and	 accepted	 procedures	
           while	in	the	custody	of	the	laboratory.	
	
      (B)		The	 prosecuting	 attorney	 shall	 serve	 a	 copy	 of	 the	 report	 on	 the	
           attorney	of	record	for	the	accused,	or	on	the	accused	if	the	accused	
           has	no	attorney,	prior	to	any	proceeding	in	which	the	report	is	to	be	
           used	 against	 the	 accused	 other	 than	 at	 a	 preliminary	 hearing	 or	
           grand	 jury	 proceeding	 where	 the	 report	 may	 be	 used	 without	
           having	been	previously	served	upon	the	accused.	
	
      (C)		The	 report	 shall	 not	 be	 prima-facie	 evidence	 of	 the	 contents,	
           identity,	and	weight	or	the	existence	and	number	of	unit	dosages	of	
           the	substance	if	the	accused	or	the	accused’s	attorney	demands	the	
           testimony	of	the	person	signing	the	report,	by	serving	the	demand	
           upon	the	prosecuting	attorney	within	seven	days	from	the	accused	
           or	 the	 accused’s	 attorney’s	 receipt	 of	 the	 report.	 The	 time	 may	 be	
           extended	by	a	trial	judge	in	the	interests	of	justice.	
	
      (D)		Any	report	issued	for	use	under	this	section	shall	contain	notice	of	
           the	 right	 of	 the	 accused	 to	 demand,	 and	 the	 manner	 in	 which	 the	
           accused	 shall	 demand,	 the	 testimony	 of	 the	 person	 signing	 the	
           report.	
	
      (E)		Any	 person	 who	 is	 accused	 of	 a	 violation	 of	 this	 chapter	 or	 of	
           Chapter	3719.	of	the	Revised	Code	is	entitled,	upon	written	request	
           made	 to	 the	 prosecuting	 attorney,	 to	 have	 a	 portion	 of	 the	
           substance	that	is,	or	of	each	of	the	substances	that	are,	the	basis	of	
                                                                                   23	

         the	 alleged	 violation	 preserved	 for	 the	 benefit	 of	 independent	
         analysis	 performed	 by	 a	 laboratory	 analyst	 employed	 by	 the	
         accused	 person,	 or,	 if	 the	 accused	 is	 indigent,	 by	 a	 qualified	
         laboratory	 analyst	 appointed	 by	 the	 court.	 Such	 portion	 shall	 be	 a	
         representative	sample	of	the	entire	substance	that	is,	or	of	each	of	
         the	substances	that	are,	the	basis	of	the	alleged	violation	and	shall	
         be	 of	 sufficient	 size,	 in	 the	 opinion	 of	 the	 court,	 to	 permit	 the	
         accused’s	analyst	to	make	a	thorough	scientific	analysis	concerning	
         the	 identity	 of	 the	 substance	 or	 substances.	 The	 prosecuting	
         attorney	 shall	 provide	 the	 accused’s	 analyst	 with	 the	 sample	
         portion	at	least	fourteen	days	prior	to	trial,	unless	the	trial	is	to	be	
         held	 in	 a	 court	 not	 of	 record	 or	 unless	 the	 accused	 person	 is	
         charged	with	a	minor	misdemeanor,	in	which	case	the	prosecuting	
         attorney	 shall	 provide	 the	 accused’s	 analyst	 with	 the	 sample	
         portion	at	least	three	days	prior	to	trial.	If	the	prosecuting	attorney	
         determines	 that	 such	 a	 sample	 portion	 cannot	 be	 preserved	 and	
         given	 to	 the	 accused’s	 analyst,	 the	 prosecuting	 attorney	 shall	 so	
         inform	the	accused	person	or	his	attorney.	In	such	a	circumstance,	
         the	 accused	 person	 is	 entitled,	 upon	 written	 request	 made	 to	 the	
         prosecuting	 attorney,	 to	 have	 the	 accused’s	 privately	 employed	 or	
         court	appointed	analyst	present	at	an	analysis	of	the	substance	that	
         is,	or	the	substances	that	are,	the	basis	of	the	alleged	violation,	and,	
         upon	 further	 written	 request,	 to	 receive	 copies	 of	 all	 recorded	
         scientific	data	that	result	from	the	analysis	and	that	can	be	used	by	
         an	 analyst	 in	 arriving	 at	 conclusions,	 findings,	 or	 opinions	
         concerning	 the	 identity	 of	 the	 substance	 or	 substances	 subject	 to	
         the	analysis.	
	
    (F)		In	addition	to	the	rights	provided	under	division	(E)	of	this	section,	
         any	 person	 who	 is	 accused	 of	 a	 violation	 of	 this	 chapter	 or	 of	
         Chapter	3719.	of	the	Revised	Code	that	involves	a	bulk	amount	of	a	
         controlled	substance,	or	any	multiple	thereof,	or	who	is	accused	of	a	
         violation	of	section	2925.11	of	the	Revised	Code,	other	than	a	minor	
         misdemeanor	 violation,	 that	 involves	 marihuana,	 is	 entitled,	 upon	
         written	 request	 made	 to	 the	 prosecuting	 attorney,	 to	 have	 a	
         laboratory	 analyst	 of	 the	 accused’s	 choice,	 or,	 if	 the	 accused	 is	
         indigent,	 a	 qualified	 laboratory	 analyst	 appointed	 by	 the	 court	
         present	at	a	measurement	or	weighing	of	the	substance	that	is	the	
24	

           basis	 of	 the	 alleged	 violation.	 Also,	 the	 accused	 person	 is	 entitled,	
           upon	 further	 written	 request,	 to	 receive	 copies	 of	 all	 recorded	
           scientific	 data	 that	 result	 from	 the	 measurement	 or	 weighing	 and	
           that	 can	 be	 used	 by	 an	 analyst	 in	 arriving	 at	 conclusions,	 findings,	
           or	opinions	concerning	the	weight,	volume,	or	number	of	unit	doses	
           of	the	substance	subject	to	the	measurement	or	weighing.	
	
******************************************************************************	
                        Tex.	Code	Crim.	Proc.	Ann.	art.	38.41		
          (LEXIS	through	2017	Regular	Sess.	and	1st	C.S.,	85th	Leg.)	
	
Art.	38.41.	Certificate	of	Analysis.	
	
      Sec.	 1.		A	 certificate	 of	 analysis	 that	 complies	 with	 this	 article	 is	
           admissible	 in	 evidence	 on	 behalf	 of	 the	 state	 or	 the	 defendant	 to	
           establish	 the	 results	 of	 a	 laboratory	 analysis	 of	 physical	 evidence	
           conducted	 by	 or	 for	 a	 law	 enforcement	 agency	 without	 the	
           necessity	of	the	analyst	personally	appearing	in	court.	
	
      Sec.	 2.		This	 article	 does	 not	 limit	 the	 right	 of	 a	 party	 to	 summon	 a	
           witness	or	to	introduce	admissible	evidence	relevant	to	the	results	
           of	the	analysis.	
	
      Sec.	 3.		A	 certificate	 of	 analysis	 under	 this	 article	 must	 contain	 the	
           following	information	certified	under	oath:	
	
           (1)		the	 names	 of	 the	 analyst	 and	 the	 laboratory	 employing	 the	
                   analyst;	
           	
           (2)		a	 statement	 that	 the	 laboratory	 employing	 the	 analyst	 is	
                   accredited	 by	 a	 nationally	 recognized	 board	 or	 association	
                   that	accredits	crime	laboratories;	
           	
           (3)		a	description	of	the	analyst’s	educational	background,	training,	
                   and	experience;	
           	
                                                                                    25	

         (4)		a	 statement	 that	 the	 analyst’s	 duties	 of	 employment	 included	
                the	 analysis	 of	 physical	 evidence	 for	 one	 or	 more	 law	
                enforcement	agencies;	
         	
         (5)		a	 description	 of	 the	 tests	 or	 procedures	 conducted	 by	 the	
                analyst;	
         	
         (6)		a	statement	that	the	tests	or	procedures	used	were	reliable	and	
                approved	by	the	laboratory	employing	the	analyst;	and	
         	
         (7)		the	results	of	the	analysis.	
	
    Sec.	 4.		Not	 later	 than	 the	 20th	 day	 before	 the	 trial	 begins	 in	 a	
         proceeding	in	which	a	certificate	of	analysis	under	this	article	is	to	
         be	 introduced,	 the	 certificate	 must	 be	 filed	 with	 the	 clerk	 of	 the	
         court	 and	 a	 copy	 must	 be	 provided	 by	 fax,	 secure	 electronic	 mail,	
         hand	 delivery,	 or	 certified	 mail,	 return	 receipt	 requested,	 to	 the	
         opposing	party.	The	certificate	is	not	admissible	under	Section	1	if,	
         not	 later	 than	 the	 10th	 day	 before	 the	 trial	 begins,	 the	 opposing	
         party	files	a	written	objection	to	the	use	of	the	certificate	with	the	
         clerk	of	the	court	and	provides	a	copy	of	the	objection	by	fax,	secure	
         electronic	 mail,	 hand	 delivery,	 or	 certified	 mail,	 return	 receipt	
         requested,	to	the	offering	party.	
    	
    Sec.	5.		A	certificate	of	analysis	is	sufficient	for	purposes	of	this	article	if	
         it	 uses	 the	 following	 form	 or	 if	 it	 otherwise	 substantially	 complies	
         with	this	article:	
	
                                 CERTIFICATE	OF	ANALYSIS	
	
            BEFORE	 ME,	 the	 undersigned	 authority,	 personally	
            appeared __________________,	 who	 being	 duly	 sworn,	 stated	 as	
            follows:	
            	
            My	 name	 is	 ___________________________.	 I	 am	 of	 sound	 mind,	 over	
            the	 age	 of	 18	 years,	 capable	 of	 making	 this	 affidavit,	 and	
            personally	acquainted	with	the	facts	stated	in	this	affidavit.	
            	
26	

      I	 am	 employed	 by	 the	 __________________________,	 which	 was	
      authorized	 to	 conduct	 the	 analysis	 referenced	 in	 this	 affidavit.	
      Part	 of	 my	 duties	 for	 this	 laboratory	 involved	 the	 analysis	 of	
      physical	 evidence	 for	 one	 or	 more	 law	 enforcement	 agencies.	
      This	laboratory	is	accredited	by	__________________________.	
      	
      My	 educational	 background	 is	 as	 follows:	 (description	 of	
      educational	background)	
      	
      My	training	and	experience	that	qualify	me	to	perform	the	tests	
      or	 procedures	 referred	 to	 in	 this	 affidavit	 and	 determine	 the	
      results	of	those	tests	or	procedures	are	as	follows:	(description	
      of	training	and	experience)	
      	
      I	 received	 the	 physical	 evidence	 listed	 on	 laboratory	 report	 no.	
      ___________	 (attached)	 on	 the	 __________day	 of	 _________________ ,	
      20___________.	 On	 the	 date	 indicated	 in	 the	 laboratory	 report,	 I	
      conducted	 the	 following	 tests	 or	 procedures	 on	 the	 physical	
      evidence:	(description	of	tests	and	procedures)	
      	
      The	 tests	 and	 procedures	 used	 were	 reliable	 and	 approved	 by	
      the	laboratory.	The	results	are	as	indicated	on	the	lab	report.	
      	
      ___________________________________	
      	
      Affiant	
      	
      SWORN	 TO	 AND	 SUBSCRIBED	 before	 me	 on	 the	
      ___________________day	of	__________________,	20____________.	
      	
      ___________________________________	
      	
      Notary	Public,	State	of	Texas	
	
