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 with an eye toward prosecution when the original analyst cannot be cross‑examined.

Commonwealth attorney Arna Hansen replied that there is no confrontation‑clause violation here and that the lab records at issue are non‑testimonial. "The notes are hearsay," Hansen said in argument, "but the notes are not testimonial," and she urged the court to distinguish the handwritten or working notes and machine‑generated raw data from the formal attestation the Supreme Court treated as testimonial in earlier cases.

Justices focused questions on several recurring points: whether raw instrument output (mass‑spectrometer printouts) is distinct from the written bench notes; whether photographs or pharmaceutical‑identification printouts could allow a substitute witness to give independent testimony; and whether a supervisor's assertion that the original analyst "followed protocol" improperly imports the absent analyst’s statements into the courtroom. Counsel debated whether hypotheticals and expert background testimony can cure gaps when an original analyst is not available for cross‑examination.

DeMeo told the court he read the record as showing that the substitute witness, LaBelle, relied on another analyst, Dunlap, and the underlying worksheets rather than conducting an independent analysis. He raised a related procedural point that the Commonwealth had not previously argued the records were non‑testimonial on initial briefing, and asked the court to consider waiver.

Hansen countered that LaBelle testified about her own technical review and lab responsibilities, and that some outputs — notably computer‑generated mass‑spec data — do not fit the classic testimonial category and therefore are admissible even if they are hearsay. She argued in the alternative that any error would be harmless to the conviction because the defense trial theory centered on lack of knowledge.

No member of the court announced a decision at argument. The justices repeatedly asked for clarification of factual points in the trial record — whether photographs or the original bench notes were admitted into evidence, whether a signed certificate was produced, and what exactly LaBelle reviewed — and queried parties about how Smith v. Arizona and other Supreme Court decisions should inform the primary‑purpose analysis.

The case turns on whether intermediate lab materials and data are statements made "with an eye toward" prosecution so as to be testimonial (and thus subject to confrontation), or whether they were prepared primarily for internal lab quality control and accreditation and therefore non‑testimonial. The court took extensive argument and asked counsel to identify the specific documents and record references that would control any primary‑purpose inquiry.

The court did not rule from the bench; no opinion was announced during argument. The justices’ questions and the parties’ positions indicate the court will need to analyze the trial record to decide whether evidentiary or constitutional error occurred and, if so, whether any error requires reversal or is harmless in this prosecution.