For purposes of analysis with respect to the confrontation clause, the critical inquiry into whether a laboratory report is testimonial is the circumstances under which the report is created, and not necessarily whether it will be used at trial. In this death penalty case, the Supreme Court considered whether the admission of scientific evidence, such as laboratory reports, constitutes a testimonial statement that is inadmissable unless the person who prepared the report testifies or Crawford conditions – unavailability and a prior opportunity for cross-examination – are met. (Crawford v. Washington (2004) 541 U.S. 36.) At trial, the laboratory director for Cellmark, a private company that performs DNA testing, testified that in her opinion, defendant’s DNA matched that taken from the victim. She also provided calculations regarding the frequency of the matched DNA profile in the general population and the Caucasian population. She did not perform the analysis of the samples herself – they were performed in keeping with the company’s protocol by one of the lab’s biologists who did not testify. The Court found the notes and analysis reports made by the biologist and relied on by the director were nontestimonial and, thus, did not implicate the confrontation clause because they were made during a routine, non-adversarial process meant to ensure accurate analysis and were neutral and not specifically designed to convict a defendant. [Editor’s note: watch for the U.S. Supreme Court’s decision in Melendez-Diaz v. Massachusetts, cert. granted 3/17/08 (07-591).]