SJC weighs whether crime‑lab bench notes are 'testimonial' in Commonwealth v. Gordon

BOSTON — In oral argument in Commonwealth v. Elena Gordon, defense attorney Christopher DeMeo told the Supreme Judicial Court that crime‑lab bench notes, worksheets and intermediate data are testimonial and therefore cannot be used to support a substitute analyst's in‑court opinion without violating the Sixth Amendment’s Confrontation Clause.

"The primary purpose of lab notes when you're recording what your substance looks like, how much it weighs, things of that nature, is to ultimately generate, inculpatory evidence for the prosecution," DeMeo told the court, urging a broad application of the Smith v. Arizona primary‑purpose test to the lab work in this case.

The dispute matters because prosecutors frequently rely on substitute analysts — supervisors or different examiners who review a file and testify about another analyst’s work after the original analyst is unavailable. DeMeo argued that, under Smith and related Supreme Court precedent, a substitute examiner may not use out‑of‑court bench notes that were produced…