Bullcoming v. New Mexico , 131 S. Ct. 2705 ( 2011 )

(Slip Opinion) OCTOBER TERM, 2010 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
BULLCOMING v. NEW MEXICO
CERTIORARI TO THE SUPREME COURT OF NEW MEXICO
No. 09–10876. Argued March 2, 2011—Decided June 23, 2011
The Sixth Amendment’s Confrontation Clause gives the accused “[i]n
all criminal prosecutions, . . . the right . . . to be confronted with the
witnesses against him.” In Crawford v. Washington, 541 U. S. 36, 59,
this Court held that the Clause permits admission of “[t]estimonial
statements of witnesses absent from trial . . . only where the decla
rant is unavailable, and only where the defendant has had a prior
opportunity to cross-examine.” Later, in Melendez-Diaz v. Massachu
setts, 557 U. S. ___, the Court declined to create a “forensic evidence”
exception to Crawford, holding that a forensic laboratory report, cre
ated specifically to serve as evidence in a criminal proceeding, ranked
as “testimonial” for Confrontation Clause purposes. Absent stipula
tion, the Court ruled, the prosecution may not introduce such a re
port without offering a live witness competent to testify to the truth
of the report’s statements. 557 U. S., at ___.
Petitioner Bullcoming’s jury trial on charges of driving while in
toxicated (DWI) occurred after Crawford, but before Melendez-Diaz.
Principal evidence against him was a forensic laboratory report certi
fying that his blood-alcohol concentration was well above the thresh
old for aggravated DWI. Bullcoming’s blood sample had been tested
at the New Mexico Department of Health, Scientific Laboratory Divi
sion (SLD), by a forensic analyst named Caylor, who completed,
signed, and certified the report. However, the prosecution neither
called Caylor to testify nor asserted he was unavailable; the record
showed only that Caylor was placed on unpaid leave for an undis
closed reason. In lieu of Caylor, the State called another analyst,
Razatos, to validate the report. Razatos was familiar with the testing
device used to analyze Bullcoming’s blood and with the laboratory’s
testing procedures, but had neither participated in nor observed the
test on Bullcoming’s blood sample. Bullcoming’s counsel objected, as
2 BULLCOMING v. NEW MEXICO
Syllabus
serting that introduction of Caylor’s report without his testimony
would violate the Confrontation Clause, but the trial court overruled
the objection, admitted the SLD report as a business record, and
permitted Razatos to testify. Bullcoming was convicted, and, while
his appeal was pending before the New Mexico Supreme Court, this
Court decided Melendez-Diaz. The state high court acknowledged
that the SLD report qualified as testimonial evidence under
Melendez-Diaz, but held that the report’s admission did not violate
the Confrontation Clause because: (1) certifying analyst Caylor was a
mere scrivener who simply transcribed machine-generated test re
sults, and (2) SLD analyst Razatos, although he did not participate in
testing Bullcoming’s blood, qualified as an expert witness with re
spect to the testing machine and SLD procedures. The court affirmed
Bullcoming’s conviction.
Held: The judgment is reversed, and the case is remanded.
147 N. M. 487, 226 P. 3d 1, reversed and remanded.
JUSTICE GINSBURG delivered the opinion of the Court with respect
to all but Part IV and footnote 6. The Confrontation Clause, the opin
ion concludes, does not permit the prosecution to introduce a forensic
laboratory report containing a testimonial certification, made in or
der 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.
The accused’s right is to be confronted with the analyst who made the
certification, unless that analyst is unavailable at trial, and the ac
cused had an opportunity, pretrial, to cross-examine that particular
scientist. Pp. 8–16.
(a) If an out-of-court statement is testimonial, it may not be intro
duced 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. Pp. 8–14.
(i) Caylor’s certification reported more than a machine-generated
number: It represented 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 corresponded; that he
performed a particular test on Bullcoming’s sample, adhering to a
precise protocol; and that he left the report’s remarks section blank,
indicating that no circumstance or condition affected the sample’s in
tegrity or the analysis’ validity. These representations, relating to
past events and human actions not revealed in raw, machine
produced data, are meet for cross-examination. The potential ramifi
cations of the state court’s reasoning, therefore, raise red flags. Most
witnesses testify to their observations of factual conditions or events.
Where, for example, a police officer’s report recorded an objective fact
Cite as: 564 U. S. ____ (2011) 3
Syllabus
such as the read-out of a radar gun, the state court’s reasoning would
permit another officer to introduce the information, so long as he or
she was equipped to testify about the technology the observing officer
deployed and the police department’s standard operating procedures.
As, e.g., Davis v. Washington, 547 U. S. 813, 826, makes plain, how
ever, such testimony would violate the Confrontation Clause. The
comparative reliability of an analyst’s testimonial report does not
dispense with the Clause. Crawford, 541 U. S., at 62. The analysts
who write reports introduced as evidence must be made available for
confrontation even if they have “the scientific acumen of Mme. Curie
and the veracity of Mother Teresa.” Melendez-Diaz, 557 U. S., at ___,
n. 6. Pp. 10–11.
(ii) Nor was Razatos an adequate substitute witness simply be
cause he qualified as an expert with respect to the testing machine
and the SLD’s laboratory procedures. Surrogate testimony of the
kind Razatos was equipped to give could not convey what Caylor
knew or observed about the events he certified, nor expose any lapses
or lies on Caylor’s part. Significantly, Razatos did not know why
Caylor had been placed on unpaid leave. With Caylor on the stand,
Bullcoming’s counsel could have asked Caylor questions designed to
reveal whether Caylor’s incompetence, evasiveness, or dishonesty ac
counted for his removal from work. And the State did not assert that
Razatos had any independent opinion concerning Bullcoming’s blood
alcohol content. More fundamentally, the Confrontation 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.
Although the purpose of Sixth Amendment rights is to ensure a fair
trial, it does not follow that such rights can be disregarded because,
on the whole, the trial is fair. United States v. Gonzalez-Lopez, 548
U. S. 140, 145. If a “particular guarantee” is violated, no substitute
procedure can cure the violation. Id., at 146. Pp. 11–14.
(b) Melendez-Diaz precluded the State’s argument that introduc
tion of the SLD report did not implicate the Confrontation Clause be
cause the report is nontestimonial. Like the certificates in Melendez-
Diaz, the SLD report is undoubtedly an “affirmation made for the
purpose of establishing or proving some fact” in a criminal proceed
ing. 557 U. S., at ___. Created solely for an “evidentiary purpose,”
id., at ___, the report ranks as testimonial. In all material respects,
the SLD report resembles the certificates in Melendez-Diaz. Here, as
there, an officer provided seized evidence to a state laboratory re
quired by law to assist in police investigations. Like the Melendez-
Diaz analysts, Caylor tested the evidence and prepared a certificate
concerning the result of his analysis. And like the Melendez-Diaz
4 BULLCOMING v. NEW MEXICO
Syllabus
certificates, Caylor’s report here is “formalized” in a signed document,
Davis, 547 U. S., at 837, n. 2. Also noteworthy, the SLD report form
contains a legend referring to municipal and magistrate courts’ rules
that provide for the admission of certified blood-alcohol analyses.
Thus, although the SLD report was not notarized, the formalities at
tending the report were more than adequate to qualify Caylor’s as
sertions as testimonial. Pp. 14–16.
GINSBURG, J., delivered the opinion of the Court, except as to Part IV
and footnote 6. SCALIA, J., joined that opinion in full, SOTOMAYOR and
KAGAN, JJ., joined as to all but Part IV, and THOMAS, J., joined as to all
but Part IV and footnote 6. SOTOMAYOR, J., filed an opinion concurring
in part. KENNEDY, J., filed a dissenting opinion, in which ROBERTS,
C. J., and BREYER and ALITO, JJ., joined.
Cite as: 564 U. S. ____ (2011) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
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 testimo­
nial 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
——————
* JUSTICE SOTOMAYOR and JUSTICE KAGAN join all but Part IV of this
opinion. JUSTICE THOMAS joins all but Part IV and footnote 6.
2 BULLCOMING v. NEW MEXICO
Opinion of the Court
laboratory’s testing procedures, but had neither partici­
pated in nor observed the test on Bullcoming’s blood sam­
ple. The New Mexico Supreme Court determined that,
although the blood-alcohol analysis was “testimonial,” the
Confrontation Clause did not require the certifying ana­
lyst’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 insur­
ance 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 appre­
hended 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).
Cite as: 564 U. S. ____ (2011) 3
Opinion of the Court
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 Bull­
coming’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,” partici­
pants in the testing were identified, and the forensic ana­
lyst 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 Bull­
coming 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 inordi­
nately 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
4 BULLCOMING v. NEW MEXICO
Opinion of the Court
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 “estab­
lished procedure” for handling and analyzing Bullcoming’s
sample “ha[d] been followed.” Id., at 62 (capitalization
omitted).
SLD analysts use gas chromatograph machines to de­
termine 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.1
——————
1 Gaschromatography 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) (hereinaf­
ter 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 Toxicol­
ogy 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
Cite as: 564 U. S. ____ (2011) 5
Opinion of the Court
Caylor’s report that Bullcoming’s BAC was 0.21 sup­
ported 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, how­
ever, proposed to introduce Caylor’s finding as a “business
——————
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 prosecu­
tions. 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 system­
atically 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 Inter­
net materials as visited June 21, 2011, and included in Clerk of Court’s
case file).
6 BULLCOMING v. NEW MEXICO
Opinion of the Court
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 con­
fronted with the witnesses against him.” Ibid.2 The trial
court overruled the objection, id., at 46–47, and admitted
the SLD report as a business record, id., at 44–46, 57.3
The jury convicted Bullcoming of aggravated DWI, and the
New Mexico Court of Appeals upheld the conviction, con­
cluding that “the blood alcohol report in the present case
was non-testimonial and prepared routinely with guaran­
tees 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
——————
2 TheState 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.”
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.
Cite as: 564 U. S. ____ (2011) 7
Opinion of the Court
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 intro­
duced at Bullcoming’s trial qualified as testimonial evi­
dence. 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)).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 tes­
timony,” the court stated, “and, thus, was available for
cross-examination regarding the operation of the . . . ma­
chine, the results of [Bullcoming’s] BAC test, and the
SLD’s established laboratory procedures.” Ibid. Razatos’
testimony was crucial, the court explained, because Bull­
coming could not cross-examine the machine or the writ­
ten report. Id., at 10. But “[Bullcoming’s] right of con­
frontation was preserved,” the court concluded, because
Razatos was a qualified analyst, able to serve as a surro­
gate for Caylor. Ibid.We granted certiorari to address this question: Does the
Confrontation Clause permit the prosecution to introduce
——————
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.
8 BULLCOMING v. NEW MEXICO
Opinion of the Court
a forensic laboratory report containing a testimonial certi­
fication, 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 testi­
monial in nature, it may not be introduced against the
accused at trial unless the witness who made the state­
ment is unavailable and the accused has had a prior op­
portunity to confront that witness. Because the New
Mexico Supreme Court permitted the testimonial state­
ment 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 admis­
sion 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 admis­
sion 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
Cite as: 564 U. S. ____ (2011) 9
Opinion of the Court
Crawford, 541 U. S., at 68)). Melendez-Diaz, relying on
Crawford’s rationale, refused to create a “forensic evi­
dence” exception to this rule. 557 U. S., at ___–___ (slip
op., at 11–15).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).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 argu­
ment that the SLD report ranks as “nontestimonial,” and
——————
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 (criti­
cizing 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”).
6 To rank as “testimonial,” a statement must have a “primary pur­
pose” 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).
10 BULLCOMING v. NEW MEXICO
Opinion of the Court
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 testi­
mony 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 independ­
ent judgment. 226 P. 3d, at 8. Bullcoming’s “true ‘ac­
cuser,’ ” 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 Bull­
coming’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 “cir­
cumstance 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 objec­
tive 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
Cite as: 564 U. S. ____ (2011) 11
Opinion of the Court
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 de­
ployed 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 . . . tes­
timony of the declarant” (emphasis deleted)); Melendez-
Diaz, 557 U. S., at ___ (slip op., at 6) (KENNEDY, J., dis­
senting) (“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 ex­
plained 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 cruci­
ble 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
12 BULLCOMING v. NEW MEXICO
Opinion of the Court
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.7 Nor could such surrogate testimony expose
any lapses or lies on the certifying analyst’s part.8 Signifi­
cant 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 ques­
tions designed to reveal whether incompetence, evasive­
ness, 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 “independ­
ent 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 Craw
ford, “[t]he text of the Sixth Amendment does not sug­
——————
7 We do not question that analyst Caylor, in common with other ana­
lysts 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 concern­
ing 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.
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.
Cite as: 564 U. S. ____ (2011) 13
Opinion of the Court
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 Gov­
ernment 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 disre­
garded 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
14 BULLCOMING v. NEW MEXICO
Opinion of the Court
the certificate”).
III
We turn, finally, to the State’s contention that the SLD’s
blood-alcohol analysis reports are nontestimonial in char­
acter, 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 re­
ported the laboratory’s analysis to the police (the sub­
stance 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) (inter­
nal 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 “accord­
ing 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 pur­
pose,” 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),
Cite as: 564 U. S. ____ (2011) 15
Opinion of the Court
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 testimo­
nial.” 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 ren­
der 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 Cay­
lor’s assertions as testimonial. The absence of notariza­
tion does not remove his certification from Confrontation
Clause governance. The New Mexico Supreme Court,
guided by Melendez-Diaz, correctly recognized that Cay­
16 BULLCOMING v. NEW MEXICO
Opinion ofof the CourtJ.
Opinion GINSBURG,
lor’s report “fell within the core class of testimonial state­
ments” 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 argu­
ment, 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] disre­
gard[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 Confron­
tation 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 tran­
scription of raw data onto a public record.” Brief for Re­
spondent 53–54. But the State would require the defen­
dant to initiate retesting. Id., at 55; post, at 4 (defense
Cite as: 564 U. S. ____ (2011) 17
Opinion ofof the CourtJ.
Opinion GINSBURG,
“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 bur­
den 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 per­
suasive 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 “actu­
ally proceed to trial.” Melendez-Diaz, 557 U. S., at ___
(slip op., at 20) (citing estimate that “nearly 95% of convic­
tions in state and federal courts are obtained via guilty
plea”). And, “when cases in which forensic analysis has
18 BULLCOMING v. NEW MEXICO
Opinion ofof the CourtJ.
Opinion GINSBURG,
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).9
Tellingly, in jurisdictions in which “it is the [acknowl­
edged] 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, labora­
tories ordinarily retain additional samples, enabling them
to run tests again when necessary.10
——————
9 The dissent argues otherwise, reporting a 71% increase, from 2008
to 2010, in the number of subpoenas for New Mexico analysts’ testi­
mony 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 attri­
tion, 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.
10 The dissent refers, selectively, to experience in Los Angeles, post, at
Cite as: 564 U. S. ____ (2011) 19
Opinion of the Court
* * *
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.11
It is so ordered.
——————
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).
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.
Cite as: 564 U. S. ____ (2011) 1
SOTOMAYOR, J., concurring in part
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 ques­
tion of whether a scientific report is testimonial. As the
Court explains, ante, at 14–15, in Melendez-Diaz v. Mas
sachusetts, 557 U. S. ___ (2009), we held that “certificates
2 BULLCOMING v. NEW MEXICO
SOTOMAYOR, J., concurring in part
of analysis,” completed by employees of the State Labora­
tory 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. Bry
ant, 562 U. S. ___ (2010), “[i]n making the primary pur­
pose determination, standard rules of hearsay . . . will be
relevant.” Id., at ___ (slip op., at 11–12).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 con­
frontation . . . because—having been created for the ad­
ministration 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
——————
1 Contrary to the dissent’s characterization, Bryant deemed reliabil­
ity, 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.
Cite as: 564 U. S. ____ (2011) 3
SOTOMAYOR, J., concurring in part
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 deci­
sion that the certificates were testimonial under the pri­
mary 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 certifi­
cates we held testimonial in Melendez-Diaz. See 557 U. S.,
at ___ (slip op., at 2, 4–5). 2
The formality inherent in the certification further sug­
gests 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). 3
——————
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).
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 reliabil­
ity, the dissent’s argument fails to appreciate that, under our Confron­
tation Clause precedents, formality is primarily an indicator of testi­
4 BULLCOMING v. NEW MEXICO
SOTOMAYOR, J., concurring in part
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 admis­
sion 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
——————
monial 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 ex­
plained 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.).
Cite as: 564 U. S. ____ (2011) 5
SOTOMAYOR, J., concurring in part
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 pur­
pose, for the BAC report. For example, the State has not
claimed that the report was necessary to provide Bullcom­
ing 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 ob­
served an analyst conducting a test testified about the
results or a report about such results. We need not ad­
6 BULLCOMING v. NEW MEXICO
SOTOMAYOR, J., concurring in part
dress what degree of involvement is sufficient because
here Razatos had no involvement whatsoever in the rele­
vant test and report.
Third, this is not a case in which an expert witness was
asked for his independent opinion about underlying testi­
monial 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 rea­
sonably 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 concentra­
tion. 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 constitutional­
ity of allowing an expert witness to discuss others’ testi­
monial 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 chro­
matograph 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 proce­
dures set out on the reverse of this report, and the state­
ments 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 ade­
quate chain of custody foundation) raw data generated by
Cite as: 564 U. S. ____ (2011) 7
SOTOMAYOR, J., concurring in part
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.
Cite as: 564 U. S. ____ (2011) 1
KENNEDY, J., dissenting
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 aris
ing from a state criminal prosecution, the Court inter
preted 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 tran
scribed onto it the test result from a machine printout, the
Court finds a confrontation violation. Some of the princi
pal 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, appli
2 BULLCOMING v. NEW MEXICO
KENNEDY, J., dissenting
cable 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 Confron
tation Clause bars admission of scientific findings when
an employee of the testing laboratory authenticates the
findings, testifies to the laboratory’s methods and prac
tices, and is cross-examined at trial. Far from replacing
live testimony with “systematic” and “extrajudicial” ex
aminations, 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 quota
tion 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 “re
semble Marian proceedings.” Id., at 837.
The procedures followed here, but now invalidated by
the Court, make live testimony rather than the “solem
nity” 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 omit
ted), here the signature, heading, or legend on the docu
ment were routine authentication elements for a report
that would be assessed and explained by in-court testi
mony subject to full cross-examination. The only sworn
statement at issue was that of the witness who was pre
sent 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
Cite as: 564 U. S. ____ (2011) 3
KENNEDY, J., dissenting
custody. App. 56 (laboratory employee’s testimony agree
ing 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 par
ticipants’ acts, each with its own evidentiary significance.
These acts included receipt of the sample at the labora
tory; 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 re
sults. 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 Labo
ratory Brief) (“Each blood sample has original testing
work by . . . as many as seve[n] analysts . . . .”); App. 62
(indicating that this case involved three laboratory ana
lysts 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 involv
ing 40–60 samples. Each sample is identified by a com
puter-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 mechani
cally performed by the gas chromatograph, which may
operate—as in this case—after all the laboratory employ
ees 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.
4 BULLCOMING v. NEW MEXICO
KENNEDY, J., dissenting
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 opportu
nity 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 de
fense 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 stat
utes 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 as
sumes for itself a central role in mandating detailed evi
dentiary rules, thereby extending and confirming
Melendez-Diaz’s “vast potential to disrupt criminal proce
dures.” 557 U. S., at ___ (slip op., at 3) (KENNEDY, J.,
Cite as: 564 U. S. ____ (2011) 5
KENNEDY, J., dissenting
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 confronta
tion context, reliability was an essential part of the consti
tutional 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., concur
ring), 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
6 BULLCOMING v. NEW MEXICO
KENNEDY, J., dissenting
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 ana
lysts” themselves. 557 U. S., at ___ (slip op., at 5) (inter
nal 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 opin
ion 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 ana
lyst, but also any “scientist who . . . perform[ed] or ob
serve[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 Craw
ford. 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 strug
gle 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).
Cite as: 564 U. S. ____ (2011) 7
KENNEDY, J., dissenting
The persistent ambiguities in the Court’s approach are
symptomatic of a rule not amenable to sensible applica
tions. Procedures involving multiple participants illus
trate 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 head
quarters 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 admis
sibility 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 replicat
ing 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
8 BULLCOMING v. NEW MEXICO
KENNEDY, J., dissenting
preparation for trial. The danger is that innocent defen
dants may be convicted on the basis of unreliable, un
tested 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, pro
vides neither cause nor necessity to impose a constitu
tional bar on the admission of impartial lab reports like
the instant one, reports prepared by experienced techni
cians 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 prosecu
torial 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 over
sight. 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 tribu
nal for rules of evidence. Yet far from pursuing these
objectives, the Court rejects them in favor of their oppo
Cite as: 564 U. S. ____ (2011) 9
KENNEDY, J., dissenting
sites.
Instead of freeing the Clause from reliance on hearsay
doctrines, the Court has now linked the Clause with hear
say rules in their earliest, most rigid, and least refined
formulations. See, e.g., Mosteller, Remaking Confronta
tion 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 cen
tury 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 reli
able. 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 pur
pose 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 partici
pate 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
10 BULLCOMING v. NEW MEXICO
KENNEDY, J., dissenting
op., at 2–3, 22–23). If this Court persists in applying
wooden formalism in order to bar reliable testimony of
fered 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 accommo
date 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 deci
sions 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 ad
vance 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 de
fense the incentives to insist on having the certifying
analyst present. There is in the ordinary case that pro
ceeds 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 appear
ances 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
Cite as: 564 U. S. ____ (2011) 11
KENNEDY, J., dissenting
of Melendez-Diaz are sure to be forthcoming.
In the meantime, New Mexico’s experience exemplifies
the problems ahead. From 2008 to 2010, subpoenas re
quiring 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 labo
ratory’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 Amend
ment, 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, com
monsense evidentiary framework the State sought to
follow in this case.