OPINION OF THE COURT BULLCOMING V. NEW MEXICO 564 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 09-10876 DONALD BULLCOMING, PETITIONER v. NEW
MEXICO

															on writ of certiorari to the supreme court of new
mexico

															[June 23, 2011]

															   Justice Ginsburg delivered the
opinion of the Court, except as to Part IV and footnote 6.*

															   In Melendez-Diaz v. Massachusetts , 557 U. S. ___ (2009), this Court held that
a forensic laboratory report stating that a suspect substance was
cocaine ranked as testimonial for purposes of the Sixth Amendment’s
Confrontation Clause. The report had been created specifically to
serve as evidence in a criminal proceeding. Absent stipulation, the
Court ruled, the prosecution may not introduce such a report
without offering a live witness competent to testify to the truth
of the statements made in the report.

															   In the case before us, petitioner Donald
Bullcoming was arrested on charges of driving while intoxicated
(DWI). Principal evidence against Bullcoming was a foren-sic
laboratory report certifying that Bullcoming’s blood-alcohol
concentration was well above the threshold for aggravated DWI. At
trial, the prosecution did not call as a witness the analyst who
signed the certification. Instead, the State called another analyst
who was familiar with the laboratory’s testing procedures, but had
neither participated in nor observed the test on Bullcoming’s blood
sample. The New Mexico Supreme Court determined that, although the
blood-alcohol analysis was “testimonial,” the Confrontation Clause
did not require the certifying analyst’s in-court testimony.
Instead, New Mexico’s high court held, live testimony of another
analyst satisfied the constitutional requirements.

															   The question presented is whether the
Confrontation Clause permits the prosecution to introduce a
forensic laboratory report containing a testimonial
certification—made for the purpose of proving a particular
fact—through the in-court testimony of a scientist who did not sign
the certification or perform or observe the test reported in the
certification. We hold that surrogate testimony of that order does
not meet the constitutional requirement. The accused’s right is to
be confronted with the analyst who made the certification, unless
that analyst is unavailable at trial, and the accused had an
opportunity, pretrial, to cross-examine that particular
scientist.

															I

															A

															   In August 2005, a vehicle driven
by petitioner Donald Bullcoming rear-ended a pick-up truck at an
intersection in Farmington, New Mexico. When the truckdriver exited
his vehicle and approached Bullcoming to exchange insurance
information, he noticed that Bullcoming’s eyes were bloodshot.
Smelling alcohol on Bullcoming’s breath, the truckdriver told his
wife to call the police. Bullcoming left the scene before the
police arrived, but was soon apprehended by an officer who observed
his performance of field sobriety tests. Upon failing the tests,
Bullcoming was arrested for driving a vehicle while “under the
influence of intoxicating liquor” (DWI), in violation of N. M.
Stat. Ann. §66–8–102 (2004).

															   Because Bullcoming refused to
take a breath test, the police obtained a warrant authorizing a
blood-alcohol analy-sis. Pursuant to the warrant, a sample of
Bullcoming’s blood was drawn at a local hospital. To determine
Bullcoming’s blood-alcohol concentration (BAC), the police sent the
sample to the New Mexico Department of Health, Scientific
Laboratory Division (SLD). In a standard SLD form titled “Report of
Blood Alcohol Analysis,” participants in the testing were
identified, and the forensic analyst certified his finding. App.
62.

															   SLD’s report contained in the top block
“information … filled in by [the] arresting officer.” Ibid. (capitalization omitted). This information included
the “reason [the] suspect [was] stopped” (the officer checked
“Accident”), and the date (“8.14.05”) and time (“18:25 PM”) the
blood sample was drawn. Ibid. (capitalization omitted).
The arresting officer also affirmed that he had arrested Bullcoming
and witnessed the blood draw. Ibid. The next two blocks
contained certifications by the nurse who drew Bullcoming’s blood
and the SLD intake employee who received the blood sample sent to
the laboratory. Ibid. Following these segments, the report presented
the “certificate of analyst,” ibid. (capitalization
omitted), com-pleted and signed by Curtis Caylor, the SLD forensic
analyst assigned to test Bullcoming’s blood sample. Id. ,
at 62, 64–65. Caylor recorded that the BAC in Bullcoming’s sample
was 0.21 grams per hundred milliliters, an inordinately high level. Id. , at 62. Caylor also affirmed that “[t]he seal of th[e]
sample was received intact and broken in the laboratory,” that “the
statements in [the analyst’s block of the report] are correct,” and
that he had “followed the procedures set out on the reverse of
th[e] report.” Ibid. Those “procedures” instructed
analysts, inter alia , to “re-tai[n] the sample container
and the raw data from the analysis,” and to “not[e] any
circumstance or condition which might affect the integrity of the
sample or otherwise affect the validity of the analysis.” Id. , at 65. Finally, in a block headed “certificate of
reviewer,” the SLD examiner who reviewed Caylor’s analysis
certified that Caylor was qualified to conduct the BAC test, and
that the “established procedure” for handling and analyzing
Bullcoming’s sample “ha[d] been followed.” Id. , at 62
(capitalization omitted).

															   SLD analysts use gas chromatograph machines to
determine BAC levels. Operation of the machines requires
specialized knowledge and training. Several steps are involved in
the gas chromatograph process, and human error can occur at each
step.[ Footnote 1 ]

															   Caylor’s report that Bullcoming’s BAC was 0.21
supported a prosecution for aggravated DWI, the threshold for which
is a BAC of 0.16 grams per hundred milliliters, §66–8–102(D)(1).
The State accordingly charged Bullcoming with this more serious
crime.

															B

															   The case was tried to a jury in
November 2005, after our decision in Crawford v. Washington , 541 U. S. 36 (2004), but
before Melendez-Diaz . On the day of trial, the State
announced that it would not be calling SLD analyst Curtis Caylor as
a witness because he had “very recently [been] put on unpaid leave”
for a reason not revealed. 2010–NMSC–007, ¶8, 226 P. 3d 1, 6
(internal quotation marks omitted); App. 58. A startled defense
counsel objected. The prosecution, she complained, had never
disclosed, until trial commenced, that the witness “out there …
[was] not the analyst [of Bullcoming’s sample].” Id., at
46. Counsel stated that, “had [she] known that the analyst [who
tested Bullcoming’s blood] was not available,” her opening, indeed,
her entire defense “may very well have been dramatically
different.” Id. , at 47. The State, however, proposed to
introduce Caylor’s finding as a “business record” during the
testimony of Gerasimos Razatos, an SLD scientist who had neither
observed nor reviewed Caylor’s analysis. Id. , at 44.

															   Bullcoming’s counsel opposed the
State’s proposal. Id. , at 44–45. Without Caylor’s
testimony, defense counsel maintained, introduction of the
analyst’s finding would violate Bullcoming’s Sixth Amendment right
“to be confronted with the witnesses against him.” Ibid .[ Footnote 2 ] The
trial court overruled the objection, id. , at 46–47, and
admitted the SLD report as a business record, id. , at
44–46, 57.[ Footnote 3 ] The jury
convicted Bullcoming of aggravated DWI, and the New Mexico Court of
Appeals upheld the conviction, concluding that “the blood alcohol
report in the present case was non-testimonial and prepared
routinely with guarantees of trustworthiness.” 2008–NMCA–097, §17,
189 P. 3d 679, 685.

															C

															   While Bullcoming’s appeal was
pending before the New Mexico Supreme Court, this Court decided Melendez-Diaz . In that case, “[t]he Massachusetts courts
[had] admitted into evidence affidavits reporting the results of
forensic analysis which showed that material seized by the police
and connected to the defendant was cocaine.” 557 U. S., at ___
(slip op., at 1). Those affidavits, the Court held, were
“ ‘testimonial,’ rendering the affiants ‘witnesses’ subject to
the defendant’s right of confrontation under the Sixth Amendment.” Ibid. In light of
Melendez-Diaz , the New Mexico Supreme Court acknowledged that
the blood-alcohol report introduced at Bullcoming’s trial qualified
as testimonial evidence. Like the affidavits in Melendez-Diaz , the court observed, the report was
“functionally identical to live, in-court testimony, doing
precisely what a witness does on direct examination.” 226
P. 3d, at 8 (quoting Melendez-Diaz , 557 U. S., at ___
(slip op., at 4)).[ Footnote 4 ]
Nevertheless, for two reasons, the court held that admission of the
report did not violate the Confrontation Clause.

															   First, the court said certifying analyst
Caylor “was a mere scrivener,” who “simply transcribed the results
gen-erated by the gas chromatograph machine.” 226 P. 3d, at
8–9. Second, SLD analyst Razatos, although he did not participate
in testing Bullcoming’s blood, “qualified as an expert witness with
respect to the gas chromatograph machine.” Id. , at 9.
“Razatos provided live, in-court testimony,” the court stated,
“and, thus, was available for cross-examination regarding the
operation of the … machine, the results of [Bullcoming’s] BAC test,
and the SLD’s established laboratory procedures.” Ibid. Razatos’ testimony was crucial, the court explained, because
Bullcoming could not cross-examine the machine or the written
report. Id. , at 10. But “[Bullcoming’s] right of
confrontation was preserved,” the court concluded, because Razatos
was a qualified analyst, able to serve as a surrogate for Caylor. Ibid .

															   We granted certiorari to address this
question: Does the Confrontation Clause permit the prosecution to
introduce a forensic laboratory report containing a testimonial
certification, made in order to prove a fact at a criminal trial,
through the in-court testimony of an analyst who did not sign the
certification or personally perform or observe the performance of
the test reported in the certification. 561 U. S. ___ (2010). Our
answer is in line with controlling precedent: As a rule, if an
out-of-court statement is testimonial in nature, it may not be
introduced against the accused at trial unless the witness who made
the statement is unavailable and the accused has had a prior
opportunity to confront that witness. Because the New Mexico
Supreme Court permitted the testimonial statement of one witness, i.e. , Caylor, to enter into evidence through the in-court
testimony of a second person, i.e. , Razatos, we reverse
that court’s judgment.

															II

															   The Sixth Amendment’s
Confrontation Clause confers upon the accused “[i]n all criminal
prosecutions, … the right … to be confronted with the witnesses
against him.” In a pathmarking 2004 decision, Crawford v. Washington , we overruled Ohio v. Roberts , 448
U. S. 56 (1980), which had interpreted the Confrontation Clause
to allow admission of absent witnesses’ testimonial statements
based on a judicial determination of reliability. See Roberts , 448 U. S., at 66. Rejecting Roberts ’
“amorphous notions of ‘re-liability,’ ” Crawford , 541
U. S., at 61, Crawford held that fidelity to the
Confrontation Clause permitted admission of “[t]estimonial
statements of witnesses absent from trial … only where the
declarant is unavailable, and only where the defendant has had a
prior opportunity to cross-examine,” id. , at 59. See Michigan v. Bryant , 562 U. S. ___, ___ (2011)
(slip op., at 7) (“[F]or testimonial evidence to be admissible, the
Sixth Amendment ‘demands what the common law required:
unavailability [of the witness] and a prior opportunity for
cross-examination.’ ” (quoting Crawford , 541 U. S.,
at 68)). Melendez-Diaz , relying on Crawford ’s
rationale, refused to create a “forensic evidence” exception to
this rule. 557 U. S., at ___–___ (slip op., at 11–15).[ Footnote 5 ] An analyst’s certification
prepared in connection with a criminal investigation or
prosecution, the Court held, is “testimonial,” and therefore within
the compass of the Confrontation Clause. Id. , at ___–___
(slip op., at 15–18).[ Footnote
6 ]

															   The State in the instant case
never asserted that the analyst who signed the certification,
Curtis Caylor, was unavailable. The record showed only that Caylor
was placed on unpaid leave for an undisclosed reason. See supra , at 5. Nor did Bullcoming have an opportunity to
cross-examine Caylor. Crawford and Melendez-Diaz ,
therefore, weigh heavily in Bullcoming’s favor. The New Mexico
Supreme Court, however, although recognizing that the SLD report
was testimonial for purposes of the Confrontation Clause,
considered SLD analyst Razatos an adequate substitute for Caylor.
We explain first why Razatos’ appearance did not meet the
Confrontation Clause requirement. We next address the State’s
argument that the SLD report ranks as “nontestimonial,” and
therefore “[was] not subject to the Confrontation Clause” in the
first place. Brief for Respondent 7 (capitalization omitted).

															A

															   The New Mexico Supreme Court held
surrogate testimony adequate to satisfy the Confrontation Clause in
this case because analyst Caylor “simply transcribed the resul[t]
generated by the gas chromatograph machine,” presenting no
interpretation and exercising no independent judgment. 226
P. 3d, at 8. Bullcoming’s “true ‘accuser,’ ” the court
said, was the machine, while testing analyst Caylor’s role was that
of “mere scrivener.” Id. , at 9 . Caylor’s
certification, however, reported more than a machine-generated
number. See supra , at 3–4.

															   Caylor certified that he received
Bullcoming’s blood sample intact with the seal unbroken, that he
checked to make sure that the forensic report number and the sample
number “correspond[ed],” and that he performed on Bullcoming’s
sample a particular test, adhering to a precise protocol. App.
62–65. He further represented, by leaving the “[r]emarks” section
of the report blank, that no “circumstance or condition …
affect[ed] the integrity of the sample or … the validity of the
analysis.” Id. , at 62, 65. These representations, relating
to past events and human actions not revealed in raw,
machine-produced data, are meet for cross-examination.

															   The potential ramifications of the New Mexico
Supreme Court’s reasoning, furthermore, raise red flags. Most
wit-nesses, after all, testify to their observations of factual
conditions or events, e.g. , “the light was green,” “the
hour was noon.” Such witnesses may record, on the spot, what they
observed. Suppose a police report recorded an objective
fact—Bullcoming’s counsel posited the address above the front door
of a house or the read-out of a radar gun. See Brief for Petitioner
35. Could an officer other than the one who saw the number on the
house or gun present the information in court—so long as that
officer was equipped to testify about any technology the observing
officer deployed and the police department’s standard operating
procedures? As our precedent makes plain, the answer is
emphatically “No.” See Davis v. Washington , 547 U. S. 813 , 826 (2006)
(Confrontation Clause may not be “evaded by having a note-taking
police[ officer] recite the … testimony of the declarant” (emphasis
deleted)); Melendez-Diaz , 557 U. S., at ___ (slip op., at
6) (Kennedy, J., dissenting) (“The Court made clear in Davis that it will not permit the testimonial statement of
one witness to enter into evidence through the in-court testimony
of a second.”).

															   The New Mexico Supreme Court stated that the
number registered by the gas chromatograph machine called for no
interpretation or exercise of independent judgment on Caylor’s
part. 226 P. 3d, at 8–9. We have already explained that Caylor
certified to more than a machine-generated number. See supra , at 3–4. In any event, the comparative reliability
of an analyst’s testimonial report drawn from machine-produced data
does not overcome the Sixth Amendment bar. This Court settled in Crawford that the “obviou[s] reliab[ility]” of a
testimonial statement does not dispense with the Confrontation
Clause. 541 U. S., at 62; see id. , at 61 (Clause
“commands, not that evidence be reliable, but that reliability be
assessed in a particular manner: by testing [the evidence] in the
crucible of cross-examination”). Accordingly, the analysts who
write reports that the prosecution introduces must be made
available for confrontation even if they possess “the scientific
acumen of Mme. Curie and the veracity of Mother Teresa.” Melendez-Diaz , 557 U. S., at ___, n. 6 (slip op., at
14, n. 6).

															B

															   Recognizing that admission of the
blood-alcohol analysis depended on “live, in-court testimony [by] a
qualified ana-lyst,” 226 P. 3d, at 10, the New Mexico Supreme
Court believed that Razatos could substitute for Caylor because
Razatos “qualified as an expert witness with respect to the gas
chromatograph machine and the SLD’s labora- tory procedures,” id. , at 9. But surrogate testimony of the kind Razatos was
equipped to give could not convey what Caylor knew or observed
about the events his certification concerned, i.e. , the
particular test and testing process he employed.[ Footnote 7 ] Nor could such surrogate testimony
expose any lapses or lies on the certifying analyst’s
part.[ Footnote 8 ] Significant
here, Razatos had no knowledge of the reason why Caylor had been
placed on unpaid leave. With Caylor on the stand, Bullcoming’s
counsel could have asked questions designed to reveal whether
incompetence, evasiveness, or dishonesty accounted for Caylor’s
removal from his work station. Notable in this regard, the State
never asserted that Caylor was “unavailable”; the prosecution
conveyed only that Caylor was on uncompensated leave. Nor did the
State assert that Razatos had any “independent opinion” concerning
Bullcoming’s BAC. See Brief for Respondent 58, n. 15. In this
light, Caylor’s live testimony could hardly be typed “a hollow
formality,” post , at 4.

															   More fundamentally, as this Court
stressed in Crawford , “[t]he text of the Sixth Amendment
does not sug- gest any open-ended exceptions from the confrontation
re-quirement to be developed by the courts.” 541 U. S., at 54. Nor
is it “the role of courts to extrapolate from the words of the
[Confrontation Clause] to the values behind it, and then to enforce
its guarantees only to the extent they serve (in the courts’ views)
those underlying values.” Giles v. California , 554 U. S. 353 ,
375 (2008). Accordingly, the Clause does not tolerate dispensing
with confrontation simply because the court believes that
questioning one witness about another’s testimonial statements
provides a fair enough opportunity for cross-examination.

															      A recent decision involving
another Sixth Amendment right—the right to counsel—is instructive.
In United States v. Gonzalez-Lopez , 548 U. S. 140 (2006),
the Government argued that illegitimately denying a defendant his
counsel of choice did not violate the Sixth Amend- ment where
“substitute counsel’s performance” did not demonstrably prejudice
the defendant. Id. , at 144–145. This Court rejected the
Government’s argument. “[T]rue enough,” the Court explained, “the
purpose of the rights set forth in [the Sixth] Amendment is to
ensure a fair trial; but it does not follow that the rights can be
disregarded so long as the trial is, on the whole, fair.” Id. , at 145. If a “particular guarantee” of the Sixth
Amendment is violated, no substitute procedure can cure the
violation, and “[n]o additional showing of prejudice is required to
make the violation ‘complete.’ ” Id. , at 146. If
repre-sentation by substitute counsel does not satisfy the Sixth
Amendment, neither does the opportunity to confront a substitute
witness.

															   In short, when the State elected to introduce
Caylor’s certification, Caylor became a witness Bullcoming had the
right to confront. Our precedent cannot sensibly be read any other
way. See Melendez-Diaz , 557 U. S., at ___ (slip op., at 6)
(Kennedy, J., dissenting) (Court’s holding means “the … analyst who
must testify is the person who signed the certificate”).

															III

															   We turn, finally, to the State’s
contention that the SLD’s blood-alcohol analysis reports are
nontestimonial in character, therefore no Confrontation Clause
question even arises in this case. Melendez-Diaz left no
room for that argument, the New Mexico Supreme Court concluded, see
226 P. 3d, at 7–8; supra , at 7, a conclusion we find
inescapable.

															   In Melendez-Diaz , a
state forensic laboratory, on police request, analyzed seized
evidence (plastic bags) and reported the laboratory’s analysis to
the police (the substance found in the bags contained cocaine). 557
U. S., at ___ (slip op., at 2). The “certificates of analysis”
prepared by the analysts who tested the evidence in Melendez-Diaz , this Court held, were “incontrovertibly …
affirmation[s] made for the purpose of establishing or proving some
fact” in a criminal proceeding. Id. , at ___ (slip op., at
4) (internal quotation marks omitted). The same purpose was served
by the certificate in question here.

															   The State maintains that the affirmations made
by analyst Caylor were not “adversarial” or “inquisitorial,” Brief
for Respondent 27–33; instead, they were simply observations of an
“independent scientis[t]” made “according to a non-adversarial
public duty,” id ., at 32–33. That argument fares no better
here than it did in Melendez-Diaz . A document created
solely for an “evidentiary purpose,” Melendez-Diaz clarified, made in aid of a police investigation, ranks as
testimonial. 557 U. S., at ___ (slip op., at 5) (forensic reports
available for use at trial are “testimonial statements” and
certifying analyst is a “ ‘witness’ for purposes of the Sixth
Amendment”).

															   Distinguishing Bullcoming’s case from Melendez-Diaz , where the analysts’ findings were contained
in certificates “sworn to before a notary public,” id. , at
___ (slip op., at 2), the State emphasizes that the SLD report of
Bullcoming’s BAC was “unsworn.” Brief for Respondent 13; post , at 2 (“only sworn statement” here was that of
Razatos, “who was present and [did] testif[y]”). As the New Mexico
Supreme Court recognized, “ ‘the absence of [an] oath [i]s not
dispositive’ in determining if a statement is testimonial.” 226
P. 3d, at 8 (quoting Crawford , 541 U. S., at 52).
Indeed, in Crawford , this Court rejected as untenable any
construction of the Confrontation Clause that would render
inadmissible only sworn ex parte affidavits, while leaving
admission of formal, but unsworn statements “perfectly OK.” Id., at 52–53, n. 3. Reading the Clause in this
“implausible” manner, ibid. , the Court noted, would make
the right to confrontation easily erasable. See Davis , 547
U. S., at 830–831, n. 5; id. , at 838 (Thomas, J.,
concurring in judgment in part and dissenting in part).

															   In all material respects, the laboratory
report in this case resembles those in Melendez-Diaz .
Here, as in Melendez-Diaz , a law-enforcement officer
provided seized evidence to a state laboratory required by law to
assist in police investigations, N. M. Stat. Ann. §29–3–4
(2004). Like the analysts in Melendez-Diaz , analyst Caylor
tested the evidence and prepared a certificate concerning the
result of his analysis. App. 62. Like the Melendez-Diaz certificates, Caylor’s certificate is “formalized” in a signed
document, Davis , 547 U. S., at 837, n. 2 (opinion of
Thomas, J.), headed a “report,” App. 62. Noteworthy as well, the
SLD report form contains a legend referring to municipal and
magistrate courts’ rules that provide for the admission of
certified blood-alcohol analyses.

															   In sum, the formalities attending the “report
of blood alcohol analysis” are more than adequate to qualify
Caylor’s assertions as testimonial. The absence of notarization
does not remove his certification from Confrontation Clause
governance. The New Mexico Supreme Court, guided by Melendez-Diaz , correctly recognized that Caylor’s report
“fell within the core class of testimonial statements” 226
P. 3d, at 7, described in this Court’s leading Confrontation
Clause decisions: Melendez-Diaz , 557 U. S., at ___ (slip
op., at 4); Davis , 547 U. S., at 830; Crawford ,
541 U. S., at 51–52.

															IV

															   The State and its amici urge that unbending applica-tion of the Confrontation Clause to
forensic evidence would impose an undue burden on the prosecution.
This argument, also advanced in the dissent, post , at
10–11, largely repeats a refrain rehearsed and rejected in Melendez-Diaz . See 557 U. S., at ___–___ (slip op., at
19–23). The con-stitutional requirement, we reiterate, “may not
[be] disregard[ed] … at our convenience,” id. , at ___
(slip op., at 19), and the predictions of dire consequences, we
again observe, are dubious, see id. , at ___ (slip op., at
19–20).

															   New Mexico law, it bears
emphasis, requires the lab-oratory to preserve samples, which can
be retested by other analysts, see N. M. Admin. Code
§7.33.2.15(A)(4)–(6) (2010), available at
http://www.nmcpr.state.nm.us/nmac/ _title07/T07C033.htm, and
neither party questions SLD’s compliance with that requirement.
Retesting “is almost always an option … in [DWI] cases,” Brief for
Public Defender Service for District of Columbia et al. as Amici Curiae 25 (hereinafter PDS Brief), and the State had
that option here: New Mexico could have avoided any Confrontation
Clause problem by asking Razatos to retest the sample, and then
testify to the results of his retest rather than to the results of
a test he did not conduct or observe.

															   Notably, New Mexico advocates retesting as an
effective means to preserve a defendant’s confrontation right “when
the [out-of-court] statement is raw data or a mere transcription of
raw data onto a public record.” Brief for Respondent 53–54. But the
State would require the defendant to initiate retesting. Id. , at 55; post , at 4 (defense “remains free to
… . call and examine the technician who performed a test”), post , at 8 (“free retesting” is available to defendants).
The prosecution, however, bears the burden of proof. Melendez-Diaz , 557 U. S., at ___ (slip op., at 19) (“[T]he
Confrontation Clause imposes a burden on the prosecution to present
its witnesses, not on the defendant to bring those adverse
witnesses into court.”). Hence the obligation to propel retesting
when the original analyst is unavailable is the State’s, not the
defendant’s. See Taylor v. Illinois , 484 U. S. 400 , 410, n.
14 (1988) (Confrontation Clause’s requirements apply “in every
case, whether or not the defendant seeks to rebut the case against
him or to present a case of his own”).

															   Furthermore, notice-and-demand procedures,
long in ef-fect in many jurisdictions, can reduce burdens on foren-
sic laboratories. Statutes governing these procedures typically
“render … otherwise hearsay forensic reports admissible[,] while
specifically preserving a defendant’s right to demand that the
prosecution call the author/ analyst of [the] report.” PDS Brief 9;
see Melendez- Diaz , 557 U. S., at ___ (slip op., at 20)
(observing that notice-and-demand statutes “permit the defendant to
assert (or forfeit by silence) his Confrontation Clause right after
receiving notice of the prosecution’s intent to use a forensic
analyst’s report”).

															   Even before this Court’s decision in Crawford , moreover, it was common prosecutorial practice
to call the forensic analyst to testify. Prosecutors did so “to
bolster the persuasive power of [the State’s] case[,] … [even] when
the defense would have preferred that the analyst did not testify.” PDS Brief 8.

															   We note also the “small fraction of … cases”
that “actually proceed to trial.” Melendez-Diaz , 557 U.
S., at ___ (slip op., at 20) (citing estimate that “nearly 95% of
convictions in state and federal courts are obtained via guilty
plea”). And, “when cases in which forensic analysis has been
conducted [do] go to trial,” defendants “regularly … [stipulate] to
the admission of [the] analysis.” PDS Brief 20. “[A]s a result,
analysts testify in only a very small percentage of cases,” id. , at 21, for “[i]t is unlikely that defense counsel
will insist on live testimony whose effect will be merely to
highlight rather than cast doubt upon the forensic analysis.” Melendez-Diaz , 557 U. S., at ___ (slip op., at
22).[ Footnote 9 ]

															   Tellingly, in jurisdictions in which “it is
the [acknowledged] job of … analysts to testify in court … about
their test results,” the sky has not fallen. PDS Brief 23. State
and municipal laboratories “make operational and staffing
decisions” to facilitate analysts’ appearance at trial. Ibid. Prosecutors schedule trial dates to accommodate
analysts’ availability, and trial courts liberally grant
continuances when unexpected conflicts arise. Id. , at
24–25. In rare cases in which the analyst is no longer employed by
the laboratory at the time of trial, “the prosecution makes the
effort to bring that analyst … to court.” Id. , at 25. And,
as is the practice in New Mexico, see supra , at 16,
laboratories ordinarily retain additional samples, enabling them to
run tests again when necessary.[ Footnote 10 ]

															*  *  *

															   For the reasons stated, the
judgment of the New Mexico Supreme Court is reversed, and the case
is remanded for further proceedings not inconsistent with this
opinion.[ Footnote 11 ]

															It is so ordered.

															* Justice Sotomayor and Justice Kagan join all
but Part IV of this opinion. Justice Thomas joins all but Part IV
and footnote 6. Footnote 1 Gas chromatography is a widely used
scientific method of quan-titatively analyzing the constituents of
a mixture. See generally H. McNair & J. Miller, Basic Gas
Chromatography (2d ed. 2009) (hereinafter McNair). Under SLD’s
standard testing protocol, the analyst ex-tracts two blood samples
and inserts them into vials containing an “internal standard”—a
chemical additive. App. 53. See McNair 141–142. The analyst then
“cap[s] the [two] sample[s],” “crimp[s] them with an aluminum top,”
and places the vials into the gas chromatograph machine. App.
53–54. Within a few hours, this device produces a printed graph—a
chromatogram—along with calculations representing a
software-generated interpretation of the data. See Brief for State
of New Mexico Dept. of Health, SLD as Amicus Curiae 16–17.

															Although the State presented testimony that obtaining an
accurate BAC measurement merely entails “look[ing] at the [gas
chromatograph] machine and record[ing] the results,” App. 54,
authoritative sources re-veal that the matter is not so simple or
certain. “In order to perform quantitative analyses satisfactorily
and … support the results under rigorous examination in court, the
analyst must be aware of, and adhere to, good analytical practices
and understand what is being done and why.” Stafford,
Chromatography, in Principles of Forensic Toxicology 92, 114 (B.
Levine 2d ed. 2006). See also McNair 137 (“Errors that occur in any
step can invalidate the best chromatographic analysis, so attention
must be paid to all steps.”); D. Bartell, M. McMurray, &
A. ImObersteg, Attacking and Defending Drunk Driving Tests
§16:80 (2d revision 2010) (stating that 93% of errors in laboratory
tests for BAC levels are human errors that occur either before or
after machines analyze samples). Even after the machine has
produced its printed result, a review of the chromatogram may
indicate that the test was not valid. See McNair 207–214.

															   Nor is the risk of human error so remote as to
be negligible. Amici inform us, for example, that in
neighboring Colorado, a single forensic laboratory produced at
least 206 flawed blood-alcohol readings over a three-year span,
prompting the dismissal of several criminal prosecutions. See Brief
for National Association of Criminal Defense Lawyers et al. as Amici Curiae 32–33. An analyst had used improper amounts
of the internal standard, causing the chromatograph machine
systematically to inflate BAC measurements. The analyst’s error, a
supervi-sor said, was “fairly complex.” Ensslin, Final Tally on
Flawed DUI: 206 Errors, 9 Tossed or Reduced, Colorado Springs
Gazette, Apr. 19, 2010, p. 1 (internal quotation marks
omitted), available at http://
www.gazette.com/articles/report-97354-police-discuss.html. (All
Internet materials as visited June 21, 2011, and included in Clerk
of Court’s case file). Footnote 2 The State called as witnesses the arresting
officer and the nurse who drew Bullcoming’s blood. Bullcoming did
not object to the State’s failure to call the SLD intake employee
or the reviewing analyst. “It is up to the prosecution,” the Court
observed in Melendez-Diaz v. Massa-chusetts , 557
U. S. ___, ___, n. 1 (2009) (slip op., at 5, n. 1), “to
decide what steps in the chain of custody are so crucial as to
require evidence; but what testimony is introduced must
(if the defendant objects) be introduced live.” Footnote 3 The trial judge noted that, when he started
out in law practice, “there were no breath tests or blood tests.
They just brought in the cop, and the cop said, ‘Yeah, he was
drunk.’ ” App. 47. Footnote 4 In so ruling, the New Mexico Supreme Court
explicitly overruled State v. Dedman ,
2004–NMSC–037, 102 P. 3d 628 (2004), which had classified
blood-alcohol reports as public records neither “investigative nor
prosecutorial” in nature. 226 P. 3d, at 7–8. Footnote 5 The dissent makes plain that its objection is
less to the application of the Court’s decisions in Crawford and Melendez-Diaz to this case than to
those pathmarking decisions themselves. See post , at 5
(criticizing the “ Crawford line of cases” for rejecting
“reliable evidence”); post , at 8–9, 11 (deploring
“ Crawford ’s rejection of the [reliability-centered] regime
of Ohio v. Roberts ”). Footnote 6 To rank as “testimonial,” a statement must
have a “primary purpose” of “establish[ing] or prov[ing] past
events potentially relevant to later criminal prosecution.” Davis v. Washington , 547 U. S. 813 , 822 (2006). See also Bryant , 562 U. S., at ___ (slip op., at 11). Elaborating
on the purpose for which a “testimonial report” is created, we
observed in Melendez-Diaz that business and public records
“are generally admissible absent confrontation . . . because—having
been created for the administration of an entity’s affairs and not
for the purpose of establishing or proving some fact at trial—they
are not testimonial.” 557 U. S., at ___ (slip op., at 18). Footnote 7 We do not question that analyst Caylor, in
common with other analysts employed by SLD, likely would not recall
a particular test, given the number of tests each analyst conducts
and the standard procedure followed in testing. Even so, Caylor’s
testimony under oath would have enabled Bullcoming’s counsel to
raise before a jury questions concerning Caylor’s proficiency, the
care he took in performing his work, and his veracity. In
particular, Bullcoming’s counsel likely would have inquired on
cross-examination why Caylor had been placed on unpaid leave. Footnote 8 At Bullcoming’s trial, Razatos acknowledged
that “you don’t know unless you actually observe the analysis that
someone else conducts, whether they followed th[e] protocol in
every instance.” App. 59. Footnote 9 The dissent argues otherwise, reporting a 71%
increase, from 2008 to 2010, in the number of subpoenas for New
Mexico analysts’ testimony in impaired-driving cases. Post , at 11. The dissent is silent, however, on the number
of instances in which subpoenaed analysts in fact testify, i.e. , the figure that would reveal the actual burden of
courtroom testimony. Moreover, New Mexico’s Department of Health,
Scientific Laboratory Division, has attributed the “chaotic”
conditions noted by the dissent, ibid. , to several favors,
among them, staff attrition, a state hiring freeze, a 15% increase
in the number of blood samples received for testing, and “wildly”
divergent responses by New Mexico District Attorneys to Melendez-Diaz . Brief for State of New Mexico Dept. of
Health, SLD as Amicus Curiae 2–5. Some New Mexico District
Attorneys’ offices, we are informed, “subpoen[a] every analyst with
any connection to a blood sample,” id. , at 5, an
exorbitant practice that undoubtedly inflates the number of
subpoenas issued. Footnote 10 The dissent refers, selectively, to
experience in Los Angeles, post , at 10, but overlooks
experience documented in Michigan. In that State,
post- Melendez-Diaz , the increase in in-court analyst
testimony has been slight. Compare PDS Brief 21 (in 2006, analysts
provided testimony for only 0.7% of all tests), with Michigan State
Police, Forensic Science Division, available at
http://www.michigan.gov/msp/0,1607,7-123-1593_3800-15901--,00.html
(in 2010, analysts provided testimony for approximately 1% of all
tests). Footnote 11 As in Melendez-Diaz , 557 U. S., at
___, and n. 14 (slip op., at 23, and n. 14), we express
no view on whether the Confrontation Clause error in this case was
harmless. The New Mexico Supreme Court did not reach that question,
see Brief for Respondent 59–60, and nothing in this opinion impedes
a harmless-error inquiry on remand. SOTOMAYOR, J., CONCURRING IN PART BULLCOMING V. NEW MEXICO 564 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 09-10876 DONALD BULLCOMING, PETITIONER v. NEW
MEXICO

															on writ of certiorari to the supreme court of new
mexico

															[June 23, 2011]

															   Justice Sotomayor, concurring in
part.

															   I agree with the Court that the
trial court erred by admitting the blood alcohol concentration
(BAC) report. I write separately first to highlight why I view the
report at issue to be testimonial—specifically because its “primary
purpose” is evidentiary—and second to emphasize the limited reach
of the Court’s opinion.

															I

															A

															   Under our precedents, the New
Mexico Supreme Court was correct to hold that the certified BAC
report in this case is testimonial. 2010–NMSC–007, ¶18, 226
P. 3d 1, 8.

															   To determine if a statement is
testimonial, we must decide whether it has “a primary purpose of
creating an out-of-court substitute for trial testimony.” Michigan v. Bryant , 562 U. S. ___, ___ (2011)
(slip op., at 11). When the “primary purpose” of a statement is
“not to create a record for trial,” ibid. , “the
admissibility of [the] statement is the concern of state and
federal rules of evidence, not the Confrontation Clause,” id. , at ___ (slip op., at 12).

															   This is not the first time the Court has faced
the question of whether a scientific report is testimonial. As the
Court explains, ante , at 14–15, in Melendez-Diaz v. Massachusetts, 557 U. S. ___ (2009), we held that
“certificates of analysis,” completed by employees of the State
Laboratory Institute of the Massachusetts Department of Public
Health, id. , at ___ (slip op., at 2), were testimonial
because they were “incontrovertibly … ‘ “solemn declaration[s]
or affirmation[s] made for the purpose of establishing or proving
some fact,” ’ ” id. , at ___ (slip op., at 4)
(quoting Crawford v. Washington , 541 U. S. 36 , 51 (2004),
in turn quoting 2 N. Webster, An American Dictionary of the English
Language (1828)).

															   As we explained earlier this Term in Michigan v. Bryant , 562 U. S. ___ (2010), “[i]n
making the primary purpose determination, standard rules of hearsay
… will be relevant.” Id. , at ___ (slip op., at
11–12).[ Footnote 1 ] As applied
to a scientific report, Melendez-Diaz explained that
pursuant to Federal Rule of Evidence 803, “[d]ocuments kept in the
regular course of business may ordinarily be admitted at trial
despite their hearsay status,” except “if the regularly conducted
business activity is the production of evidence for use at trial.”
557 U. S., at ___ (slip op., at 15–16) (citing Fed. Rule Evid.
803(6)). In that circumstance, the hearsay rules bar admission of
even business records. Re-latedly, in the Confrontation Clause
context, business and public records “are generally admissible
absent confrontation … because—having been created for the
administration of an entity’s affairs and not for the purpose of
establishing or proving some fact at trial—they are not
testimonial.” Melendez-Diaz , 557 U. S., at ___ (slip op.,
at 18). We concluded, therefore, that because the purpose of the
certificates of analysis was use at trial, they were not properly
admissible as business or public records under the hearsay rules, id. , at ___ (slip op., at 15–16), nor were they admissible
under the Confrontation Clause, id. , at ___ (slip op., at
18). The hearsay rule’s recognition of the certificates’
evidentiary purpose thus confirmed our decision that the
certificates were testimonial under the primary purpose analysis
required by the Confrontation Clause. See id. , at ___
(slip op., at 5) (explaining that under Massachusetts law not just
the purpose but the “ sole purpose of the affidavits was to
provide” evidence).

															   Similarly, in this case, for the reasons the
Court sets forth the BAC report and Caylor’s certification on it
clearly have a “primary purpose of creating an out-of-court
substitute for trial testimony.” Bryant , 562 U. S., at ___
(slip op., at 11). The Court also explains why the BAC report is
not materially distinguishable from the certificates we held
testimonial in Melendez-Diaz . See 557 U. S., at ___ (slip
op., at 2, 4–5). [ Footnote
2 ]

															   The formality inherent in the certification
further suggests its evidentiary purpose. Although “[f]ormality is
not the sole touchstone of our primary purpose inquiry,” a
statement’s formality or informality can shed light on whether a
particular statement has a primary purpose of use at trial. Bryant , 562 U. S., at ___ (slip op., at
19). [ Footnote 3 ] I agree
with the Court’s assessment that the certificate at issue here is a
formal statement, despite the absence of notarization. Ante , at 14–15; Crawford , 541 U. S., at 52
(“[T]he absence of [an] oath [is] not dispositive”). The formality
derives from the fact that the analyst is asked to sign his name
and “certify” to both the result and the statements on the form. A
“certification” requires one “[t]o attest” that the accompanying
statements are true. Black’s Law Dictionary 258 (9th ed. 2009)
(definition of “certify”); see also id. , at 147 (defining
“attest” as “[t]o bear witness; testify,” or “[t]o affirm to be
true or genuine; to authenticate by signing as a witness”).

															   In sum, I am compelled to conclude that the
report has a “primary purpose of creating an out-of-court
substitute for trial testimony,” Bryant , 562 U. S., at ___
(slip op., at 11), which renders it testimonial.

															B

															   After holding that the report was
testimonial, the New Mexico Supreme Court nevertheless held that
its admission was permissible under the Confrontation Clause for
two reasons: because Caylor was a “mere scrivener,” and because
Razatos could be cross-examined on the workings of the gas
chromatograph and laboratory procedures. 226 P. 3d, at 8–10.
The Court convincingly explains why those rationales are incorrect. Ante , at 9–13. Therefore, the New Mexico court contravened
our precedents in holding that the report was admissible via
Razatos’ testimony.

															II

															   Although this case is materially
indistinguishable from the facts we considered in Melendez-Diaz , I highlight some of the factual
circumstances that this case does not present.

															   First, this is not a case in
which the State suggested an alternate purpose, much less an
alternate primary purpose, for the BAC report. For
example, the State has not claimed that the report was necessary to
provide Bullcoming with medical treatment. See Bryant , 562
U. S., at ___ , n. 9 (slip op., at 15, n. 9) (listing
“Statements for Purposes of Medical Diagnosis or Treatment” under
Federal Rule of Evidence 803(4) as an example of statements that
are “by their nature, made for a purpose other than use in a
prosecution”); Melendez-Diaz , 557 U. S., at ___, n. 2
(slip op., at 6, n. 2) (“[M]edical reports created for
treatment purposes … would not be testimonial under our decision
today”); Giles v. California , 554 U. S. 353 , 376
(2008) (“[S]tatements to physicians in the course of receiving
treatment would be excluded, if at all, only by hearsay
rules”).

															   Second, this is not a case in which the person
testifying is a supervisor, reviewer, or someone else with a
personal, albeit limited, connection to the scientific test at
issue. Razatos conceded on cross-examination that he played no role
in producing the BAC report and did not observe any portion of
Curtis Caylor’s conduct of the testing. App. 58. The court below
also recognized Razatos’ total lack of connection to the test at
issue. 226 P. 3d, at 6. It would be a different case if, for
example, a supervisor who observed an analyst conducting a test
testified about the results or a report about such results. We need
not address what degree of involvement is sufficient because here
Razatos had no involvement whatsoever in the relevant test and
report.

															   Third, this is not a case in which an expert
witness was asked for his independent opinion about underlying
testimonial reports that were not themselves admitted into
evidence. See Fed. Rule Evid. 703 (explaining that facts or data of
a type upon which experts in the field would reasonably rely in
forming an opinion need not be admissible in order for the expert’s
opinion based on the facts and data to be admitted). As the Court
notes, ante , at 12, the State does not assert that Razatos
offered an independent, expert opinion about Bullcoming’s blood
alcohol concentration. Rather, the State explains, “[a]side from
reading a report that was introduced as an exhibit, Mr. Razatos
offered no opinion about Petitioner’s blood alcohol content
… .” Brief for Respondent 58, n. 15 (citation omitted).
Here the State offered the BAC report, including Caylor’s
testimonial statements, into evidence. We would face a different
question if asked to determine the constitutionality of allowing an
expert witness to discuss others’ testimonial statements if the
testimonial statements were not themselves admitted as
evidence.

															   Finally, this is not a case in which the State
introduced only machine-generated results, such as a printout from
a gas chromatograph. The State here introduced Caylor’s statements,
which included his transcription of a blood alcohol concentration,
apparently copied from a gas chromatograph printout, along with
other statements about the procedures used in handling the blood
sample. See ante , at 10; App. 62 (“I certify that I
followed the procedures set out on the reverse of this report, and
the statements in this block are correct”). Thus, we do not decide
whether, as the New Mexico Supreme Court suggests, 226 P. 3d,
at 10, a State could introduce (assuming an adequate chain of
custody foundation) raw data generated by a machine in conjunction
with the testimony of an expert witness. See Reply Brief for
Petitioner 16, n. 5.

															   This case does not present, and thus the
Court’s opinion does not address, any of these factual
scenarios.

															*  *  *

															   As in Melendez-Diaz , the
primary purpose of the BAC report is clearly to serve as evidence.
It is therefore tes-timonial, and the trial court erred in allowing
the State to introduce it into evidence via Razatos’ testimony. I
respectfully concur. Footnote 1 Contrary to the dissent’s characterization, Bryant deemed reliability, as reflected in the hearsay
rules, to be “relevant,” 562 U. S., at ___ (slip op., at 11–12),
not “essential,” post , at 5 (opinion of Kennedy, J.). The
rules of evidence, not the Confrontation Clause, are designed
primarily to police reliability; the purpose of the Confrontation
Clause is to determine whether statements are testimonial and
therefore re-quire confrontation. Footnote 2 This is not to say, however, that every
person noted on the BAC report must testify. As we explained in Melendez-Diaz , it is not the case “that anyone whose
testimony may be relevant in establishing the chain of custody,
authenticity of the sample, or accuracy of the testing device, must
appear in person as part of the prosecution’s case … . It is
up to the prosecution to decide what steps in the chain of custody
are so crucial as to require evidence … .” 557 U. S., at ___,
n. 1 (slip op., at 5, n. 1). Footnote 3 By looking to the formality of a statement,
we do not “trea[t] the reliability of evidence as a reason to
exclude it.” Post , at 5 (Kennedy, J., dissenting).
Although in some instances formality could signal reliability, the
dissent’s argument fails to appreciate that, under our
Confrontation Clause precedents, formality is primarily an
indicator of testimonial purpose. Formality is not the sole
indicator of the testimonial nature of a statement because it is
too easily evaded. See Davis v. Washington , 547 U. S. 813 ,
838 (2006) (Thomas, J., concurring in judgment in part and
dissenting in part). Nonetheless formality has long been a hallmark
of testimonial statements because formality suggests that the
statement is intended for use at trial. As we explained in Bryant , informality, on the other hand, “does not
necessarily indicate . . . lack of testimonial intent.” 562 U. S.,
at ___ (slip op., at 19). The dissent itself recognizes the
relevance of formality to the testimonial inquiry when it notes the
formality of the problematic unconfronted statements in Sir Walter
Raleigh’s trial. Post , at 7–8 (opinion of Kennedy,
J.). KENNEDY, J., DISSENTING BULLCOMING V. NEW MEXICO 564 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 09-10876 DONALD BULLCOMING, PETITIONER v. NEW
MEXICO

															on writ of certiorari to the supreme court of new
mexico

															[June 23, 2011]

															   Justice Kennedy, with whom the
Chief Justice, Justice Breyer, and Justice Alito join,
dissenting.

															   The Sixth Amendment Confrontation
Clause binds the States and the National Government. Pointer v. Texas , 380 U. S. 400 , 403
(1965). Two Terms ago, in a case arising from a state criminal
prosecution, the Court interpreted the Clause to mandate exclusion
of a laboratory report sought to be introduced based on the
authority of that report’s own sworn statement that a test had been
performed yielding the results as shown. Melendez-Diaz v. Massachusetts , 557 U. S. ___ (2009). The Court’s opinion
in that case held the report inadmissible because no one was
present at trial to testify to its contents.

															   Whether or not one agrees with the reasoning
and the result in Melendez-Diaz , the Court today takes the
new and serious misstep of extending that holding to instances like
this one. Here a knowledgeable representative of the laboratory was
present to testify and to explain the lab’s processes and the
details of the report; but because he was not the analyst who
filled out part of the form and transcribed onto it the test result
from a machine printout, the Court finds a confrontation violation.
Some of the principal objections to the Court’s underlying theory
have been set out earlier and need not be repeated here. See id., at ___ (Kennedy, J., dissenting). Additional
reasons, applicable to the extension of that doctrine and to the
new ruling in this case, are now explained in support of this
respectful dissent.

															I

															   Before today, the Court had not
held that the Confrontation Clause bars admission of scientific
findings when an employee of the testing laboratory authenticates
the findings, testifies to the laboratory’s methods and practices,
and is cross-examined at trial. Far from replacing live testimony
with “systematic” and “extrajudicial” examinations, Davis v. Washington, 547 U. S. 813 , 835, 836 (2006) (Thomas, J., concurring in judgment in part and
dissenting in part) (emphasis deleted and internal quotation marks
omitted), these procedures are fully consistent with the
Confrontation Clause and with well-established principles for
ensuring that criminal trials are conducted in full accord with
requirements of fairness and reliability and with the confrontation
guarantee. They do not “resemble Marian proceedings.” Id., at 837.

															   The procedures followed here, but
now invalidated by the Court, make live testimony rather than the
“solemnity” of a document the primary reason to credit the
labo-ratory’s scientific results. Id., at 838. Unlike Melendez-Diaz , where the jury was asked to credit a
labora- tory’s findings based solely on documents that were “quite
plainly affidavits,” 557 U. S., at ___ (slip op., at 1) (Thomas,
J., concurring) (internal quotation marks omitted), here the
signature, heading, or legend on the document were routine
authentication elements for a report that would be assessed and
explained by in-court testimony subject to full cross-examination.
The only sworn statement at issue was that of the witness who was
present and who testified.

															   The record reveals that the certifying
analyst’s role here was no greater than that of anyone else in the
chain of custody. App. 56 (laboratory employee’s testimony agreeing
that “once the material is prepared and placed in the machine, you
don’t need any particular expertise to record the results”). The
information contained in the report was the result of a scientific
process comprising multiple participants’ acts, each with its own
evidentiary significance. These acts included receipt of the sample
at the laboratory; recording its receipt; storing it; placing the
sample into the testing device; transposing the printout of the
results of the test onto the report; and review of the results. See Id., at 48–56; see also Brief for State of New Mexico
Dept. of Health Scientific Laboratory Division as Amicus
Curiae 4 (hereinafter New Mexico Scientific Laboratory Brief)
(“Each blood sample has original testing work by . . . as many as
seve[n] analysts . . . .”); App. 62 (indicating that this case
involved three laboratory analysts who, respectively, received,
analyzed, and reviewed analysis of the sample); cf. Brief for State
of Indiana et al. as Amici Curiae in Briscoe v. Virginia, O. T. 2009, No. 07–11191, p.
10 (hereinafter Indiana Brief) (explaining that DNA analysis can
involve the combined efforts of up to 40 analysts).

															   In the New Mexico scientific laboratory where
the blood sample was processed, analyses are run in batches
involving 40–60 samples. Each sample is identified by a
computer-generated number that is not linked back to the file
containing the name of the person from whom the sample came until
after all testing is completed. See New Mexico Scientific
Laboratory Brief 26. The analysis is mechanically performed by the
gas chromatograph, which may operate—as in this case—after all the
laboratory employees leave for the day. See id., at 17.
And whatever the result, it is reported to both law enforcement and
the defense. See id., at 36.

															   The representative of the testing laboratory
whom the prosecution called was a scientific analyst named Mr.
Razatos. He testified that he “help[ed] in overseeing the
administration of these programs throughout the State,” and he was
qualified to answer questions concerning each of these steps. App.
49. The Court has held that the government need not produce at
trial “everyone who laid hands on the evidence,” Melendez-Diaz,
supra , at ___, n. 1 (slip op., at 5, n. 1). Here,
the defense used the opportunity in cross-examination to highlight
the absence at trial of certain laboratory employees. Under
questioning by Bullcoming’s attorney, Razatos acknowledged that his
name did not appear on the report; that he did not receive the
sample, perform the analysis, or complete the review; and that he
did not know the reason for some personnel decisions. App. 58.
After weighing arguments from defense counsel concerning these
admissions, and after con-sidering the testimony of Mr. Razatos,
who knew the laboratory’s protocols and processes, the jury found
no reasonable doubt as to the defendant’s guilt.

															   In these circumstances, requiring the State to
call the technician who filled out a form and recorded the results
of a test is a hollow formality. The defense remains free to
challenge any and all forensic evidence. It may call and examine
the technician who performed a test. And it may call other expert
witnesses to explain that tests are not always reliable or that the
technician might have made a mistake. The jury can then decide
whether to credit the test, as it did here. The States,
furthermore, can assess the progress of scientific testing and
enact or adopt statutes and rules to ensure that only reliable
evidence is admitted. Rejecting these commonsense arguments and the
concept that reliability is a legitimate concern, the Court today
takes a different course. It once more assumes for itself a central
role in mandating detailed evidentiary rules, thereby extending and
confirming Melendez-Diaz ’s “vast potential to disrupt
criminal procedures.” 557 U. S., at ___ (slip op., at 3) (Kennedy,
J., dissenting).

															II

															   The protections in the
Confrontation Clause, and indeed the Sixth Amendment in general,
are designed to ensure a fair trial with reliable evidence. But the Crawford v. Washington, 541 U. S. 36 (2004), line
of cases has treated the reliability of evidence as a reason to
exclude it. Id. , at 61–62. Today, for example, the Court
bars admission of a lab report because it “is formalized in a
signed document.” Ante , at 15 (internal quotation marks
omitted). The Court’s unconventional and unstated premise is that
the State—by acting to ensure a statement’s reliability—makes the
statement more formal and therefore less likely to be admitted.
Park, Is Confrontation the Bottom Line? 19 Regent U. L. Rev.
459, 461 (2007). That is so, the Court insists, because reliability
does not animate the Confrontation Clause. Ante , at 11; Melendez-Diaz , supra , at ___ (slip op., at
11–12); Crawford , supra , at 61–62. Yet just this
Term the Court ruled that, in another confrontation context,
reliability was an essential part of the constitutional inquiry.
See Michigan v. Bryant , 562 U. S. ___, ___–___,
___–___ (2010) (slip op., at 11–12, 14–15).

															   Like reliability, other
principles have weaved in and out of the Crawford jurisprudence. Solemnity has sometimes been dispositive, see Melendez-Diaz , 557 U. S., at ___ (slip op., at 6); id. , at ___ (slip op., at 1) (Thomas, J., concurring), and
sometimes not, see Davis , 547 U. S., at 834–837, 841
(Thomas, J., concurring in judgment in part and dissenting in
part). So, too, with the elusive distinction between utterances
aimed at proving past events, and those calculated to help police
keep the peace. Compare Davis, supra , and Bryant ,
562 U. S., at ___–___ (slip op., at 24–30), with id. , at
___–___ (slip op., at 5–9) (Scalia, J., dissenting).

															   It is not even clear which witnesses’
testimony could render a scientific report admissible under the
Court’s approach. Melendez-Diaz stated an inflexible rule:
Where “analysts’ affidavits” included “testimonial statements,”
defendants were “entitled to be confronted with the analysts”
themselves. 557 U. S., at ___ (slip op., at 5) (internal quotation
marks omitted). Now, the Court reveals, this rule is either less
clear than it first appeared or too strict to be followed. A report
is admissible, today’s opinion states, if a “live witness competent
to testify to the truth of the statements made in the report”
appears. Ante , at 1. Such witnesses include not just the
certifying analyst, but also any “scientist who . . . perform[ed]
or observe[d] the test reported in the certification.” Ante , at 2.

															   Today’s majority is not committed in equal
shares to a common set of principles in applying the holding of Crawford . Compare Davis , supra (opinion
for the Court by Scalia, J.), with id. , at 834 (Thomas,
J., concurring in judgment in part and dissenting in part); and Bryant , supra , (opinion for the Court by
Sotomayor, J.), with id. , at ___ (Thomas, J., concurring
in judgment), and id. , at ___ (Scalia, J., dissenting),
and id. , at ___ (Ginsburg, J., dissenting); and ante , at ___ (slip op., at 1) (opinion of the Court), with ante, at ___ (slip op., at 1) (Sotomayor, J., concurring).
That the Court in the wake of Crawford has had such
trouble fashioning a clear vision of that case’s meaning is
unsettling; for Crawford binds every judge in every
criminal trial in every local, state, and federal court in the
Nation. This Court’s prior decisions leave trial judges to “guess
what future rules this Court will distill from the sparse
constitutional text,” Melendez-Diaz, supra, at ___ (slip
op., at 2) (Kennedy, J., dissenting), or to struggle to apply an
“amorphous, if not entirely subjective,” “highly context-dependent
inquiry” involving “open-ended balancing.” Bryant, supra, at ___ (slip op., at 15–16) (Scalia, J., dissenting) (internal
quotation marks omitted) (listing 11 factors relevant under the
majority’s approach).

															   The persistent ambiguities in the Court’s
approach are symptomatic of a rule not amenable to sensible
applications. Procedures involving multiple participants illustrate
the problem. In Melendez-Diaz the Court insisted that its
opinion did not require everyone in the chain of custody to testify
but then qualified that “what testimony is introduced must
. . . be introduced live.” 557 U. S., at ___, n. 1 (slip op., at 5,
n. 1); ante , at 6, n. 2. This could mean that a
statement that evidence remained in law-enforcement custody is
admissible if the statement’s maker appears in court. If so, an
intern at police headquarters could review the evidence log,
declare that chain of custody was retained, and so testify. The
rule could also be that that the intern’s statement—which draws on
statements in the evidence log—is inadmissible unless every officer
who signed the log appears at trial. That rule, if applied to this
case, would have conditioned admissibility of the report on the
testimony of three or more identified witnesses. See App. 62. In
other instances, 7 or even 40 witnesses could be required. See supra, at 3. The court has thus—in its fidelity to Melendez-Diaz —boxed itself into a choice of evils: render
the Confrontation Clause pro forma or construe it so that its
dictates are unworkable.

															III Crawford itself does not
compel today’s conclusion. It is true, as Crawford confirmed, that the Confrontation Clause seeks in part to bar the
government from replicating trial procedures outside of public
view. See 541 U. S., at 50; Bryant , supra, at ___
(slip op., at 11–12). Crawford explained that the basic
purpose of the Clause was to address the sort of abuses exemplified
at the notorious treason trial of Sir Walter Raleigh. 541 U. S., at
51. On this view the Clause operates to bar admission of
out-of-court statements obtained through formal interrogation in
preparation for trial. The danger is that innocent defendants may
be convicted on the basis of unreliable, untested statements by
those who observed—or claimed to have observed—preparation for or
commission of the crime. And, of course, those statements might not
have been uttered at all or—even if spoken—might not have been
true.

															   A rule that bars testimony of that sort,
however, provides neither cause nor necessity to impose a
constitutional bar on the admission of impartial lab reports like
the instant one, reports prepared by experienced technicians in
laboratories that follow professional norms and scientific
protocols. In addition to the constitutional right to call
witnesses in his own defense, the defendant in this case was
already protected by checks on potential prosecutorial abuse such
as free retesting for defendants; result-blind issuance of reports;
testing by an independent agency; routine processes performed en
masse, which reduce opportunities for targeted bias; and labs
operating pursuant to scientific and professional norms and
oversight. See Brief for Respondent 5, 14–15, 41, 54; New Mexico
Scientific Laboratory Brief 2, 26.

															   In addition to preventing the
State from conducting ex parte trials, Crawford ’s
rejection of the regime of Ohio v. Roberts , 448 U. S. 56 (1980), seemed to have two under-lying jurisprudential objectives.
One was to delink the intricacies of hearsay law from a
constitutional mandate; and the other was to allow the States, in
their own courts and legislatures and without this Court’s
supervision, to explore and develop sensible, specific evidentiary
rules pertaining to the admissibility of certain statements. These
results were to be welcomed, for this Court lacks the experience
and day-to-day familiarity with the trial process to suit it well
to assume the role of national tribunal for rules of evidence. Yet
far from pursuing these objectives, the Court rejects them in favor
of their opposites.

															   Instead of freeing the Clause from reliance on
hearsay doctrines, the Court has now linked the Clause with hearsay
rules in their earliest, most rigid, and least refined
formulations. See, e.g. , Mosteller, Remaking Confrontation
Clause and Hearsay Doctrine Under the Challenge of Child Sexual
Abuse Prosecutions, 1993 U. Ill. L. Rev. 691, 739–740, 742,
744–746; Gallanis, The Rise of Modern Evidence Law, 84 Iowa
L. Rev. 499, 502–503, 514–515, 533–537 (1999). In cases like Melendez-Diaz and this one, the Court has tied the
Confrontation Clause to 18th century hearsay rules unleavened by
principles tending to make those rules more sensible. Sklansky,
Hearsay’s Last Hurrah, 2009 S. Ct. Rev. 1, 5–6, 36. As a
result, the Court has taken the Clause far beyond its most
important ap-plication, which is to forbid sworn, ex
parte, out-of-court statements by unconfronted and available
witnesses who observed the crime and do not appear at trial.

															   Second, the States are not just at risk of
having some of their hearsay rules reviewed by this Court. They
often are foreclosed now from contributing to the formulation and
enactment of rules that make trials fairer and more reliable. For
instance, recent state laws allowing admission of well-documented
and supported reports of abuse by women whose abusers later
murdered them must give way, unless that abuser murdered with the
specific purpose of foreclosing the testimony. Giles v. California , 554 U. S. 353 (2008);
Sklansky, supra, at 14–15. Whether those statutes could
provide sufficient indicia of reliability and other safeguards to
comply with the Confrontation Clause as it should be understood is,
to be sure, an open question. The point is that the States cannot
now participate in the development of this difficult part of the
law.

															   In short, there is an ongoing, continued, and
systemic displacement of the States and dislocation of the federal
structure. Cf. Melendez-Diaz, supra, at ___, ___, ___
(slip op., at 2–3, 22–23). If this Court persists in applying
wooden formalism in order to bar reliable testimony offered by the
prosecution—testimony thought proper for many decades in state and
federal courts committed to devising fair trial processes—then the
States might find it necessary and appropriate to enact statutes to
accommodate this new, intrusive federal regime. If they do, those
rules could remain on State statute books for decades, even if
subsequent decisions of this Court were to better implement the
objectives of Crawford . This underscores the disruptive,
long-term structural consequences of decisions like the one the
Court announces today.

															   States also may decide it is proper and
appropriate to enact statutes that require defense counsel to give
advance notice if they are going to object to introduction of a
report without the presence in court of the technician who prepared
it. Indeed, today’s opinion relies upon laws of that sort as a
palliative to the disruption it is causing. Ante, at 17
(plurality opinion). It is quite unrealistic, however, to think
that this will take away from the defense the incentives to insist
on having the certifying analyst present. There is in the ordinary
case that proceeds to trial no good reason for defense counsel to
waive the right of confrontation as the Court now interprets
it.

															   Today’s opinion repeats an assertion from Melendez-Diaz that its decision will not “impose an undue
burden on the prosecution.” Ante, at 16 (plurality
opinion). But evidence to the contrary already has begun to mount.
See, e.g., Brief for State of California et al. as Amici Curiae 7 (explaining that the 10 toxicologists for
the Los Angeles Police Department spent 782 hours at 261 court
appearances during a 1-year period); Brief for National District
Attorneys Assocation et al. as Amici Curiae 23
(observing that each blood-alcohol analyst in California processes
3,220 cases per year on average). New and more rigorous empirical
studies further detailing the unfortunate effects of Melendez-Diaz are sure to be forthcoming.

															   In the meantime, New Mexico’s experience
exemplifies the problems ahead. From 2008 to 2010, subpoenas
requiring New Mexico analysts to testify in impaired-driving cases
rose 71%, to 1,600—or 8 or 9 every workday. New Mexico Scientific
Laboratory Brief 2. In a State that is the Nation’s fifth largest
by area and that employs just 10 total analysts, id., at
3, each analyst in blood alcohol cases recently received 200
subpoenas per year, id., at 33. The analysts now must
travel great distances on most working days. The result has been,
in the laboratory’s words, “chaotic.” Id., at 5. And if
the defense raises an objection and the analyst is tied up in
another court proceeding; or on leave; or absent; or delayed in
transit; or no longer employed; or ill; or no longer living, the
defense gets a windfall. As a result, good defense attorneys will
object in ever-greater numbers to a prosecution failure or
inability to produce laboratory analysts at trial. The concomitant
increases in subpoenas will further impede the state laboratory’s
ability to keep pace with its obligations. Scarce state resources
could be committed to other urgent needs in the criminal justice
system.

															*  *  *

															   Seven years after its initiation,
it bears remembering that the Crawford approach was not
preordained. This Court’s missteps have produced an interpretation
of the word “witness” at odds with its meaning elsewhere in the
Constitution, including elsewhere in the Sixth Amendment, see Amar,
Sixth Amendment First Principles, 84 Geo. L. J. 641, 647,
691–696 (1996), and at odds with the sound administration of
justice. It is time to return to solid ground. A proper place to
begin that return is to decline to extend Melendez-Diaz to
bar the reliable, commonsense evidentiary framework the State
sought to follow in this case.

Summary: The Supreme Court ruled that a forensic laboratory report is testimonial and cannot be introduced without offering a live witness who can testify to the report's truth. In the case of Bullcoming v. New Mexico, the prosecution introduced a blood-alcohol report without calling the analyst who performed the test as a witness. The Court held that the Confrontation Clause requires the analyst who made the certification to testify and be available for cross-examination by the accused, unless the analyst is unavailable and the accused had a prior opportunity for cross-examination. This decision reaffirmed the Court's interpretation of the Sixth Amendment's Confrontation Clause and the right of the accused to confront their accusers.