1 (Slip Opin i o n) OCTOBER T ERM, 20 10 Sy llabu s
N O TE : Wh er e it i s feas ibl e , a s yllab u s (h ead n ot e) wil lbe rel e as ed , as is bein g d o n e incon n ecti onwithth is cas e , a tth e ti meth e op in i o n is is s u ed

. Th e s yll abu s con s titu tes n o p a rt of th e op in i o nof th eC o u r t bu t h a s be en pre p are dbyt h e Re po rte ro f De ci sio n s fo r t h e co nveni e nce of t h e reade r . Se e United Statesv. Detroit Timbe r& Lumb er Co., 200U. S

. 3 21, 337

. 

## SUPREME CO URT O FTHE UNI TED STATES

Sy llabu s BULL COM I NG v . NEW MEXICO
CERTIORARI TO THE SUPREME COUR T OF NEW MEXICO No. 09–1 08 76. Ar g u ed M a rc h2, 2011—Dec i ded Ju n e2 3 , 2011 The Sixth Amendment’s Co nfrontatio nCl au se giv e s th e ac c u sed “[i] n

all criminal p r osecutions, .

. . the ri gh t .

. . to be confro n t ed with the witnesses ag a i nst him.” In Crawford v. Was h i n g t o n , 541 U. S. 36, 59, this Cour t held that the Cl ause pe r m its admi ssion of “ [t]esti monia l statements of witnesses absent fromtrial .

. . o n ly whe r e the decla

ra nt is unava ilable, a n d only wherethe defenda n t ha s ha d aprior oppor t unityto c r o ss-ex amine.” Later , in Mele n dez - Diaz v. Massac hu

sett s , 557 U. S. ___, the Court declinedto create a “forensic evidence” exception to Crawford , holdi n g t h a taforens ic lab o ra t o r yreport , cre ated specifical ly to serve as eviden ce in a criminal proceeding, ranked as “tes t imoni a l” for Confrontation Clause purposes. Absent stipula

tion, the Court ruled, the prosecut ion maynot intr oduce suc ha r e por twithout offer i nga liv e witness c o mpe t ent to test ifyto the tr uth of the report’s statemen ts. 557 U. S., at ___.

PetitionerBul l c o ming ’ s jur ytr ial on charges of driving while in

t o xica t e d (DWI) occu rred a f t e r Crawford, bu t befor e Melendez-Diaz

. Principa l evidence a g a i ns thimwa s aforens ic lab o rat o ry reportcert i

fying that his blood-alcohol c o ncen tr ation was well abov ethe thr e sh

old for aggravated DWI. Bullcomin g’s blood samp le had been teste d at the New M e x i c oDepar tment of Health, Sc ientificLab o r a tor yDiv i

sion (SLD), b ya for e nsicanaly s t na me d Cay l or , who c o mpleted, s i gned, a n d cert ified t h e report

. However, t h e pros ecu t ion neit her ca lled Ca ylor t ot e st ify nor a s s e rt ed he wa s unava ilab l e; t h e record showed only that Caylor w a s pl ac ed on unpaid leave for an undis

closed reason. In lieu of Caylor , the State called another analyst, Raza tos, to v a l i date the r e por t

. Razato s w a s fa mili arwit hthe testing device used to analyze Bullcoming’ s blood an d withth e labor a tor y ’ s tes t ing procedures , b u t ha d neither participatedin nor o b served th e test on Bullcoming’s blood sample. Bullco m ing’s counsel objected, as -2 BULLCOMING v. NEW MEXICO Sy llabu s

ser t ingthat i n tr oduc tion of Cay l or ’ s r e por twithout his tes t imony would viola t e the Confronta t ion Cla u se, b u t the tr ialc o ur t ov er ruled t h e obj e ct ion, a d mit t e d t h e S L D report a s a b u s i nes s record, a n d per m itted R a z a tos to te stify

. Bu llcoming was convic ted, and, while his appe al was pending bef o re the New Mexico S u pre m e Court , t h is Court decided Mele ndez

- Diaz . The state high co urt acknowledged th at th e SL D r e por tqu alified as te stimoni a l evi d ence under Mele n dez - Diaz , but held that the r e por t ’ s admi ssion didnot v i olate the Confronta t ion Cla u s eb e ca us e: (1 ) certifying a n a l ys t Ca ylor wa s a m e re s crivene r who s i m p lyt r a n s crib e d m a chine-gene ra t e d t e s tre su lts, an d ( 2 ) SLD an aly s t R a zato s, al th ou ghh edid n o t par t ic ipate in testing Bullco m ing’s blood, qualified as an expert witnes s with re

spec t to the testingmac h ine and SL D procedures. T h e court affirmed Bullcoming’s conviction. Held:The jud g ment is rever s ed, and the c a s eis remanded. 147 N. M

. 487, 226 P. 3d 1, r e v e r s ed an d r e man d ed. J US TI CE G IN SB U R G delivered the opinion of the Court wi th respec t to all bu t P a r tIV an d footn o t e6. Th e Con f r o n t ationClau se, th e opin

ion concludes, does not permit the prosecut ion to introduce a fore nsic lab o ra t o ry reportcont a i ningat e s t im onia l cert ifica t ion, m a de in or

der t oprove a fa cta tacrim i na l t r ial, through thein-co u rt testi m ony of anan aly s t wh o did n o t sig nth e certification or personally perform or observe the performance of the testreport ed in t h e cert ifica t ion. The ac c u sed’ s r i gh t is to be c o nfr o nted with the analy s t who made the c e r t ific ation , u n l ess th ata n aly s t i s u n av a ilable at tr ia l, an d th e ac cus e d ha d a nopport unit y , p r et ria l , t ocros s - exa m ine t h atpa rt icular sc ien t ist. Pp. 8–1 6.

(a) If an out-of-court stateme n t is tes t imon ial, it m a y not be intro

duced againstthe accused at tria l unless the witness w h o made the statement is unavailable and the ac cused has had a prior opportunity to c o n f r o n tthat witn ess. Pp. 8–14. (i) Ca ylor’s cer t ifica t ion report ed m o re t h a nam a chine-g e nera t e d num b e r: Itre pres ent e d t h a the re ceived Bullcoming’s blood sampl e intac twith the seal unbr o ken; that he c h ec ked to make sur ethat the forens ic reportnum b e r a n d the s a m p le num b e r corres p onded; t h a the performed a particular test on Bu llcoming’s sample, adhering to a precise protocol; and that he left t h e report ’s rem a rks s e ct ion b l a n k, indic a tingtha tno c i r c u msta nc e orc o ndition affec t ed the samp le’ s in

t e grit y ort h ea n a l ys is ’ va lidit y . These representations, relating to past ev en ts an d h u m an ac tion s not rev e aled in r a w, mac h ine

produced data, are meet for cross-ex amina t ion. The pote ntial ram i fi

cations of the state court’s reasoning, therefore, raise re d flags. Most witnesses tes t ifyto theiro b s e rv ationsof factual conditio ns or events. Where, fo r e x a m ple, apolice officer’s repo rtreco rded a nobj e ct ive fa ct3 Cite as: 56 4 U

. S. ____ (2011) Sy llabu s

s u ch a s t h e rea d -outof ara da r gun, t h e s t a t e court ’ s reas oning would perm ita n ot her officer t oint r oduce t h e i n f o rma t ion, s olong a s he or she was equip p ed to testify about the technology the observing o fficer deployed and the police dep a rtment’s stan dard operatin g procedures. As, e.g., Davi sv. Washi n gto n , 547 U. S. 8 13, 8 26, m a ke s pla i n , h o w ever, such testimony would violat e the Confronta t ion Cla u s e . The comparative r e liab ility of a nanalyst’s te stimoni a l rep o rt does no t dispen se w i th th e Clau se. Cra wford, 541 U. S., at 62. Th e an aly s t s who write rep o rts introduced as evid en c e mu st be made av ailable for confro nta t ion even if the y h ave “th e scientific acumen o f Mme. Curie a n d t h e vera ci t yof Mot h er T e res a .” Melen dez

- Diaz , 557 U. S., at ___,
n . 6. Pp. 10–1 1. (ii) Nor was R a zato s an ade q ua te subs tit u te witness si mplybe

c a u s e h equ alified as anex per twi th r e spec t to the test ingmac h ine and the SLD’s laboratory procedur es. Surrogate testimony of the kind Ra za tos wa s eq uipped to give co uld not conv ey wha tCa ylor knew or observed about the events hecert ified, nor expos ea n y la ps es or lies on Caylor’s part. Signif ic antly , Razato s did no t know why Caylor had been placed on unpaid le ave. With Caylor on the stand, Bullcoming’s c o uns el could have a s ke d Caylor questions designed to revea lwhet he r Ca ylor’s inco mpetence, evasivene ss, or dishonesty ac

count ed for hi s rem o va l fromwork. And t h e S t at e did nota s s e rtt h at Razatos had any indepe ndent opinio n co ncerning Bullco m ing’s blood a l cohol conten t. More fu nda m enta lly, the Confronta t ion Cla u s edoes not toler a te d i spensingwith c o nfr o ntationsimp lybec a use the c o ur t believes th at questioning one witn ess about another’s testimoni a l statements pr ovides a fair enough opport u n it y for cros s - exa m ina t ion. Although the purpose of Six t h Amendm en t r i gh ts is to e n sur ea fair trial, it doe s not follow that such rights can be disregarded because , on the whole, the trial is f a i r . Unit ed Sta t esv. Go nzalez-Lopez, 5 48 U. S. 140, 14 5

. If a “p ar tic u larg u ar an tee” is v i olate d , n osubs titu t e procedurecan curethe violation. Id., at 146. Pp. 11–14.

(b) Mele n dez - Diaz precluded the State’s ar g u ment that intr oduc

tion of the SL D r e por tdid n o t im plic ate th e Confr o ntatio n Clause be

ca us e the repo rt is nontes timoni al. Like the certificates in Melendez Diaz , the SLD r e por tis undoubtedlyan “affir m at ion made forthe purpose of establi s hing or p r ovin g some fac t” in a c r i minal pr oc eed

ing. 557 U. S., at ___. Created so lely foran “evidenti a ry purpose,” id., at ___, the report ranks as testim onial

. In al l mater i al respects, t h e S L D reportres e m b les t h e cert ifica t es in Melendez - Di az . Here, as there, an officer provided seized evidence t oast at e lab o ra t o ry re quired by law to assi st in po lice investigations. Like the Me le nd ez Diaz analysts, Caylor te stedthe evid en c ean d pr epar ed a c e r t ific ate conce r nin gthe res u lt of hi s analys is. An d like the M e lendez-Diaz4 BULLCOMING v. NEW MEXICO Sy llabu s cert ifica t es , Ca ylor’s report here is “f orm a lized” in a s i gned docum e nt , Davis , 547 U. S., at 83 7, n

. 2. Al so n o tew o r t h y , th e SLD r e por tfor m cont a i ns alegend refer r ing t om unicipa l and m a gis t ra t e cou r t s ’ rules that provide for the admission of certified blood-alcohol analyses. Thus, although the SLD r e por twas not no tar i zed, the fo r m alitie s at

t e nding t h e reportwere m o re t h a n adeq u a te to qu alif yCay l or ’ s as sertions as te s t imonial. Pp. 14– 16. G IN SB U R G , J., delivered the opinion of the Cour t, ex c e pt as to Par tIV and footnote 6. S CALIA , J., j o ined that opi n ion in full, S OTOMAYOR an d K

AGAN , JJ., join ed as to all b u t Par tIV, an d T HOMAS , J., join ed as to a l l but Par tIV a n d footnote 6. S OTOMAYOR , J ., filed an op inion concurring in part. K EN NEDY , J., filed a dissenting opinion, in which R OBERTS , C. J., and B REYERan d ALITO , JJ., joined._________________

_________________ 1 Cite as: 56 4 U

. S. ____ (2011) Opinion of theCourt
NOTIC E : Th is op i n ionis subjec t to f o rma lrevi si onbef o r e publicat ioninth e p r eli m in ary p rin t of th e U n it edS t at es R e p o rts

. R e ad ers ar e r e qu es ted to n o tif yth e R e p o rt e rof D e c i s i on s , Su p r em e C o u rt of th e U n ited St at es , Wa s h

ington, D. C. 2054 3, of any typ o gra p hical or other f o rmal err o rs , in or der th atc o rr ect i on sm a y b e mad eb e f o r e th ep r e lim in aryp rin t go es t o p r es s . 

## SUPREME CO URT O FTHE UNI TED STATES

No. 09–1 08 76
DO NAL D B U LLC OMI N G, P E TIT I ONER v. NEW MEXICO ON WRIT OF CERTIORARI TO THE SUPREME COUR T OF NEW MEXICO [Ju n e23, 2011 ] J USTICE G IN S B UR Gdelivered the opinion of the Court, except as to Part IV an d footnote 6.* In Melendez-Diaz v. Massa chuse t ts , 557 U. S. ___ (20 09), this Court held that aforens ic laboratory re port statin g that a suspect substance was coca ine ranked as testimonial for purposes of the Sixth Ame n dment’s Confrontation Clause. The report had been created specifically to serve as evidence in a crimi nal proceeding. Absen tstipulation, the Court r u led, the prosecution may not introduce such a report with out offering a live witn ess competent to testify to the truthof the statements made in the report. In the case before us, petitioner Donald Bullcoming was arrest ed on charges of dri ving while intoxicated (DWI ). Pri n ci pal e vi d e n ce agains t Bull comi ng was a fo ren sic laboratory report certifying that Bullcoming’s bloodalcohol concentration was well a b ove the t h reshold for aggra v ated DWI. At tri al, the pros ecution did not call as a witness the analyst who signed th e certification. Instea d, the State ca lled another analyst who was familiar with the

——————

* J US TI CE S OT OMAYORan d J US TI CE K AGANjoin a ll but P a rt IVof thi s opinion. J US TICE T HOMAS join s all bu t Par tIV an d footn o te 6.2 BULLCOMING v. NEW MEXICO Opinion of theCourt laboratory’s testing procedures, but had nei t her partici

pated in no r observed the test on Bullcoming’s blood sample. The New Mexico Supreme Court determined that, although th e blood-alcohol analysis was “testi m onial,” the Confrontation Clause did not req u ire the certifying an alyst’s in-court testimony. Instead, New Mexico’s high court held, live testimony of anoth er analyst satisfied the constitutional requirements. The question present e d is whether the Confrontatio n Clause permits the prosecution to introduc ea forensic laboratory report cont aining a testimonial c e rtification— made for th e purpose of provinga p a rticular fa ct—th rough the in-courttestimony of a scientist who did not sign th e certification or perform or observe the test rep o rted in the certification. We hold that sur r ogate testim ony of that order does not meet the constitutional requirement. The accused’s ri ght is to b econfronted with the analyst wh o 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 truc kat anintersection in Farmington, New Mexico. When the truckdriver exite d his vehicle and approa ched Bullcoming to exchange insu rance information, he noticed tha tBullcoming’s eyes were bloodshot. Smelling alcohol on Bullcoming’s breath, the truc k dri v ertold his wife to ca ll the police. Bul l coming left the scene b e fore the police arrived, but was soon apprehended by an officer who observed his performance of field sobriety tests. Upon failing th e tests, Bu llcoming was arrested for driving a vehicle while“under the influence of intoxicating liquor” (DWI), in violation of N. M. Stat. An n. §66–8–102 ( 2004).3 Cite as: 56 4 U

. S. ____ (2011) Opinion of theCourt Because Bullcoming refused to t a ke a breath test, the polic eobtained a warr ant authori z ing a blood-al cohol analy

sis. Pursuant to the warran t , a sample of Bullcoming’s blood was drawn a talocal hospital. To determine Bullcoming’s blood-alcohol concentration (BAC) , the polic e sent the sample to the New Mexic oDepartme n t of Healt h , Scientific Laboratory Division (SLD). In a standard SLD form titled “Report of Blood Alcohol Analy s is,” participants in the testing were identified, and the forensic analyst certified his findin g. App. 62. SLD’s repor tcontained in the top b l ock “infor mation .

. . filled in by[the] arre sting officer.” Ibid. (capitalization omitted). This information included the “reason [the] suspect [was] stopped” (the officer checked“Ac c ident” ), and the da te (“8.14.05”) and time (“18:25 PM”) the blo o d sample was drawn. Ibid. (capitalization omitted). The arresting officer also affirmedthat he had arrested Bull

coming and witnessed the blood draw. Ibid. The next two blocks cont ained certifications by the nurs ewho drew Bullcoming’s blo o d an d the SLD intak ee m ployee who received the blood sample sent to the laboratory. Ibid. Following these segments, the report pres ented the “certificate of analyst,” ibid. (capitalization omitted), completed and signed by Curtis Caylor, the SLD forensic analyst assigned to test Bullcoming’s blood sa mple. Id. , at 62, 64–65. Caylor reco rded tha tthe BAC in Bullcoming’s sample was 0.21 grams per hundred milliliters , an inordinately high level. Id

. , at 62. Caylor also af firmed that “[t]he seal of th[e] sample was received intact and bro k en in the laboratory,” tha t“the sta t ements in [the analyst’s block of the report] are correct, ” a n d that he had “followed the procedu r es set out on the reverse of th[e] report.” Ibid. Those “procedures” instructed ana lysts, inter alia , to “retai[n] the sample container and the raw da ta from th e analysis,” and to “not[e] any circumstance or condition which migh t affect the integrity of the sample or otherwise4 BULLCOMING v. NEW MEXICO Opinion of theCourt affect the validity of the analysis.” Id. , at 65. Finally, in a blockheaded “certificate of revie w er,” the SLD examiner who reviewed Caylor’s analysis c e rtified that Caylor was qualified to conductt h e BAC te st, and tha tthe “esta b

lished procedure” for h andling and analyzing Bullcoming’s sample “ha[d] been followed.” Id. , at 62 (capitalization omitted).SLD analysts use gas chromatograph machines to determine BA C levels. Operation of the machi n es requires specializedknowledge and training. Several steps are involved inthe gas chromatogra p h process, and human error can oc cur at each step. 1

——————

1 Ga s chrom a t o gra p hy is awidely us ed scientific method of quantita tiv e lyanal y z ingthe c o nstituents of a mixture. Se e generally H

. McNair & J. Miller, Basic Gas Chroma to graphy (2d ed. 200 9) (hereinaft e r McNa i r). Under S L D’s s t a n da rd t e s t ing prot ocol, t h e a n a l ys textr ac ts two blo o d sa mples a n d inser t s th em into v i a l s c o ntainingan “in t er n a l stan dar d”—a c h emic al addi tiv e . App. 53. S ee M c N air141– 142. Th e an a l y s t th en“c ap[ s ] th e [ t wo] sa mple[s],” “c r i mp[s] th em wi th analu m in u mtop,” an d pla c es th e v i als into the g a s chr o matogr aph
m a c h i n e . Ap p . 5 3

– 5 4

. Wi t h i naf e wh o u r s , t h i s d e v i c ep r o d u c e s a pr inted gr aph—a c h r o matogr am—alongwith c a lc ulation s r e pr esenting a software-generated interpretation of the data. See Brief for State of New MexicoD e pt. of Health, S L D as Am icus Cu riae16–17.

Although the State presented testim onythat ob tainingan ac c u r a te BAC mea s urement merelyentails “ l ook[i ng] at the [g as chromatogr aph]
m a chine a n d r e cord[ing] t h e res u lt s , ” App. 5 4 , a u t h orit a t ive s o urces r e v e al thatthe mat t eris not so si mple orc e r t ain. “In or derto per f or m quantita tiv ea n aly s es s a ti sf ac tor ilyand .

. . s u pport the res u lts under
r i g o r o u s ex a m in ationinc o u r t, th e an aly s t mu stbe awar e of, an d adh e r eto, g o od an aly t ic al p r ac tic e s an d u n d er stan d wh at is bein gdon e a n d why

. ” S t a fford, Chrom a t o gra p hy, in Principles of F o rens ic Toxi co logy92, 114 (B. Lev i n e2d ed. 2006). See also M c N air137 (“Er r o r s th at occu r in a n y s t ep ca n inva lida t e t h e b e st chrom a t o gra p hic a n a l ys is , so attention mus tbe paidto all st eps . ” ) ; D. Ba rt ell, M. McM ur ra y, & A. ImObers t eg, Attacking and DefendingDrunk D r ivi n g Tes t s §16: 80 (2d r e v i sion2010) (s tat i n gth at 93% of e r r o r s in labor a tor ytests fo r BAC lev e ls are human errors that occu r either before or after machine s an aly z e samp les). Ev enafterth e machi n e has produced its printed
r e sult, a r e v i ew of the c h r o matogr am ma yindic a te tha tthe tes twa s n o t5 Cite as: 56 4 U

. S. ____ (2011) Opinion of theCourt Caylor’s report tha t Bullcoming’s BAC was 0.21 sup

ported a prosecution for aggra v ate dDWI, 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 ajury in November 2005, after our decision in Cra wfordv. Washin gt on , 541 U. S. 36 (2004), but before Melendez-Diaz

. On the day of trial, the State announced that it would not be calling SLD a nalyst Curtis Caylor as awitness because he had “very re cently [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 d e fense counsel objected. The prosecution, she complained, had never disclosed, until trial commenced, that the witness “out there .

. . [was] not the analyst [of Bullcomin g’s sample].” Id., at 46. Counsel stated that, “had [she] known that the analys t [who tested Bullcoming’s blood] was not a v ailable,” her opening, indeed, her entire defense “may very well have been drama t ically different.” Id. , at 47. The State, however, proposed to introduce Caylor’s finding as a “busines s

—————— v a lid. See M c Nair207 –2 14.

Nor is t h e risk of hum a nerror s orem o t e a s t ob e negligib le. Am ici inform us, fo r example, that in neighboring Colorado, a single forensic labor a tor ypr o d u c ed at le as t20 6 fl awed b l ood-alc oh ol r e adin g s ov er a three-year sp an, prompt ing the dismiss a lof several cri minal prosecutions. See Bri e f for National Asso ci ation o f Criminal Def e nse Lawyers et al. as Amici Curiae32–33

. An an aly s t h a d u s ed impr operamou n t s of t h e int e rnal s t a n da rd, caus ing the c h romatogr aph mac h ine sy ste m atic al lyto in fl ate BA C me as u r emen ts. The an aly s t’ s er r o r , a su perv isor sai d , was “fairly comple x.” Enssl in, Final Ta lly o nFlawed DU I: 206 Er r o r s , 9 Tossed or Re du c e d, Color a do Spr i n g s Gazette, Ap r . 19, 2010, p. 1 (internal quotation ma rks omitted), available at http://
www. gazette.com/articles /report-973 54-police-dis cus s . html. (All Intern e t ma ter i al s as v i sitedJu n e21, 20 11, an d in c l u d ed in Cler k of Cou r t ’ s case file).6 BULLCOMING v. NEW MEXICO Opinion of theCourt record” du r i ng the testimony of Gerasimos Razatos, an SLD scient ist who had neither observed nor reviewed Caylor’s an alysis. Id. , at 44. Bullcoming’s counsel opposed the State’s pro p osal. Id. , at 44–45. Without Caylor’s te stimony, defense cou n sel maintained, introducti on of the analyst’s finding would violate Bullcoming’s Sixth Amend m ent right“to be confronted wit hthe witne sses against him.” Ibid

. 2The tria l court overr u led the objection, id. , at 46–47, and admitted the SL D re port as a b u siness record, id. , at 44–46, 57. 3 The jury co nvicted Bullcoming of aggravated DWI, and the New Mexic oCourt of Appeals upheld the conviction, concluding tha t“the blood alcohol report in the present case was non-testimonial an d prepared routinely with guarantees of trustworthiness.” 2008–NMCA–097, §17, 189 P. 3d 679, 685. C While Bullc oming’s appeal was pending before the Ne w Mexico Supreme Court, this Court decided Melendez-Diaz

. In that cas e , “[t]he Massachusetts courts [h ad] admitte d into evidence affidavits reporting the result s of forensic analysis which showed that material seizedby 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 a ffiants ‘witnesses’ subject to

——————

2 The State called as witnesses the a rres t ing office r a n d t h e nu rs e who dre wBul l coming’s blood. Bullcom ingdid not objec tto the State ’ s failure to callthe SLD inta ke employ ee or the reviewi n g analyst. “It is u pto the pr osec u t ion, ” theCourt ob serv e dinMelendez-Diaz v. Massa

chu sett s , 557 U. S. ___, ___ , n. 1 (2009) (slip op., at 5, n. 1), “to deci d e what step s in the chain of custody ar e so crucial as to require evidence; bu t wh at test imon y is introduced must (if the defend ant objects) be introduced live.”

3 The tr ial judg e noted that , when he star ted out in l a w pr ac tic e , “there were nobreath te sts o rblood te sts. Th ey ju st br ought in the cop, and the cop said, ‘Yeah, he was drunk.’ ” App. 47.7 Cite as: 56 4 U

. S. ____ (2011) Opinion of theCourt the defendant’s righ t of confrontation under the Sixth Amendment.” Ibid. In light of Melend ez-Diaz , t h e N e wM e x i coS u p r eme Court ac kn owledged t hat the blood-alcohol report intr oduced at Bullcoming’s trial qualified as test imonial evidence. Lik ethe affidavits in Melendez-Diaz , the co urt observed, the report was “functio nally identical to l i ve, i n court testimony, doin g precisely what a witness does o n direct exa m ination.” 226 P. 3d, at 8 (quoting Melend ezDiaz , 557 U. S., at ___ (slip op., at 4)). 4Nev e rtheless, for two reasons, the courtheld that admission of the repo r t did not violate the Confrontation Clause. First, the c o urt said c e rtifying a nalyst Ca ylor “was a mere scrivener,” who “ s impl y tran s cribed the results generated by the gas ch romatographmachine.” 226 P. 3d, at 8–9. Second, SLD a nalyst Raza tos, although he did not participate in testing Bullcoming’s blood, “qualified as an expert witness wit hrespect t othe gas c h romatogra p h machine.” Id. , at 9. “Razatos pro vided live, in-court testimony,” th e court sta t ed, “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 pro c edures.” Ibid. R a z a t o s ’ testimony was crucial , the court explained, because Bullcoming could not cross-examine the machine or the written report. Id. , at 10. But “[Bul l coming’s] right of confrontation was preserved,” the c o urt conclu ded, because Razatos wa s a qualified analyst, able to serve as asurrogate for Ca ylor. Ibid

. We granted certiorari to address this question: Does the Confrontation Clause permit the prosecution to introduce

——————

4 In s oruling , t h e New Mexi co S u preme Court explic itly overruled State v. De d m an , 2004–N M S C–0 37, 1 0 2 P. 3d 62 8 (200 4), wh ic h h a d cla s s i fied b l ood-a l cohol report s a s pub lic records neit her“i nves t i ga t ive n o rpr osecu t orial” inn a tu r e . 226 P. 3d, at 7–8.8 BULLCOMING v. NEW MEXICO Opinion of theCourt a forensic laboratory r e port co ntai ning a testi m onial certification, made in orderto p r ove a fact a ta cri minal trial, through th e in-court testimony of an analyst who did n o t sign the certification orpersonally perform or observe the performanc e of the test reportedi nthe cer t ification. 561 U. S. ___ (2010). Our answer is in line withcontrolling precedent: As a rule, i f an out-of- c ourt state m ent is tes t imonial in nature, it may not be introduced against theaccused at trial unless the witness who made the statement is un available a n d the accused has ha d a prior opportunity t oconfront that witn ess. Because the New Mexico Supreme Court permitte d the testimonial stat ement of on e witness, i.e. , Caylor, to enter into evidence through th e in-court testimony of a second person, i.e. , Razatos, we reverse that court’s ju d g ment. II The Sixth Amendment’s Confron t ation Clause confers upon the accused “[i]nall criminal prosecutions, .

. . the right .

. . to be confronted wi th the witnesses against him.” In a pathmarking 200 4 decision, Cra wfordv. Washin gto n , we overruled Ohiov. Roberts , 44 8 U. S. 56 (1980), which had interpreted the Co nfrontation Clause to allow admission of abs e n t witnesses’ testimonial statemen ts based on a judicial determination of reliability. See Roberts , 4 48 U. S., at 66. Rejecting Roberts ’ “a morphous notions of ‘reliability,’ ” Cra wford , 541 U. S., at 61, Cra wfor dhe ldthat fidelity to the Confrontation Clause permitted admission of “[t]estimonial statements of witnesses absent fro m trial .

. . only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cro ssexamine,” id

. , at 59. See Michiganv. Bryant , 562 U. S.

___,
___ (20 11) (slip op. , at 7) (“[F]or testimon ial evidence to be admissible, the Sixth Ame n dment ‘demands what the common law required: unavailability [of the witness] and a prior opportunity for cross-examination.’ ” (quoting9 Cite as: 56 4 U

. S. ____ (2011) Opinion of theCourt Cra wford , 541 U. S., at 68)). M e lendez-Diaz , relying on Cra wford’s rationale, refused to create a “forensic evi

dence” exception to this rule. 557U. S., at ___–__ _ (sl i p op., at 11– 15). 5An a nalyst’s certification prepared in connection with a cri minal investigation or prosecution, the Court held, is “testimonial,” and therefore within t h e compass of the Confrontation Clause. Id. , at ___–_ __ (sli p op., at 15–18). 6 The State i nthe insta n t case nev e r asserted that the analyst wh o signed th e certificati on, Curtis Caylor, wa s unavailable. The record showed only that Caylor wa s placed on unpaid leav e for an undisclosedreason. See supra , at 5. Nor di d Bullcoming have a nopportun i ty to cross-examine Caylor. Crawf o rd and Melendez-Diaz , therefore, weigh heavily in Bullcoming’s favor. The Ne w Mexico Supreme Court, howe ve r, although recognizing that the S L D repor t was testimonial for purposes of the Confrontation Clause, considered SLD analys t Raza tos an adequate s ubstitute for Caylor. We explain first why Razatos’ a ppearance did not m eet the Confrontation Clause req u irement. We next a ddress the State’s argument that t h e SLD rep o rt ran k s a s “nontestimonial,” and

——————

5 The dissent makes p l ain t h at it s object i o n is les s to t h e application of the Court’s decisions in Crawford an d Melen dez

- Diaz to this c a se than to those pathmar k ing decisions the m selves. See post , at 5 (c r i t i

cizing the “ Cr awford line of cases” for r ejecting “reliable evidence”) ; post , at 8–9, 11 (deplor i n g“ Crawford’s rejection of the [reliabil i tycentered] regi me of Ohio v. Rob erts ”).

6 To r a nk as “t estimoni al,” ast atementm u st hav ea“p r i mar ypur pose” of “e stablish[ing] or prov[ing] past events potenti a lly relevant t o later criminal prosecution.” Davisv. Washin gton , 547 U. S. 813, 82 2 (200 6). See al so Bryant , 562 U. S., at ___ (slip op., at 11). Elaborating on the purpose for which a “testimonia l report” is crea t ed, we ob s e rve d in Melen dez

- Diaz t h a tb u s i nes s a n d pub lic reco rds “ a re gene ra lly admi ssible ab sen tc o n f r o n t ation. . . bec a u s e—h av in gb eencr eated for the adminis t r a tion of an entity ’ s affairs and not for the purpose o f establi s hing or proving some fact attr i a l

—theyar e not tes t imonia l.” 557 U. S., at ___ (slip op., at 18).10 BULLCOMING v. NEW MEXICO Opinion of theCourt therefore “[was] not subject to the Confrontation Clause” in the first place. Bri e f for Respondent 7 (capitalization omitted). A The New Mexico Sup r eme Court held surrogate testimony adequate to satisfy the Confrontation Clause in this case b e cause analyst Caylor “simply tra nscribed the resul[t] generated bythe gas chromatogra p h machine,” presenting no interpretation and exercising no indepen d

ent judgment. 226 P. 3d, at 8. Bullcoming’s “true ‘accuser,’ ” the courtsaid, was the machine, while testing analyst Ca ylor’s role was that of “mere scri vener.” Id. , a t 9

. Caylor’s certification, ho wever, 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 h echecked to make sure t hat the fore nsic report number and the sampl e number “co rrespond[ed],” and that he performed on Bul l

coming’s sample a part icular test, adhering to a precise protocol. App. 62–65. He further represented, by leaving the “[r]ema r ks” section of the report blank, t hat no “ c ircumstance or condition .

. . affect [ed] the int e grity of th e 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 rea s oning, furthermore, raise red flags. Most witnesses, aft e r all, testify to theirobservations of factual conditions or events, e.g
. , “the light was green,” “the ho ur was noon.” Such witne sses may record, on the spot, wha t they observed. Suppose a po lice report recor d ed an objective fact— B u llcoming’s counsel posited the address above the front door of a ho use or the read-out of a radar gun. See Brief for Petitioner 35. Could an officer other than th eCite as: 56 4 U

. S. ____ (2011) 11 Opinion of theCourt one who sa w the number on the house or gun present the informationin court—so long as that officer was equipped to testify about any technolo gy the observing officer deployed and the pol i cedepartment’s standard operating procedures? As our precedent mak e s plain, th e answer i s emphatically “No.” See Davisv. Washin gton , 547 U. S. 813, 826 (2006) (Confrontation Clause may not be “evaded by having a note-taking police[ officer] recite the

. . . testimony of t h e declarant” (empha sis deleted)); Melendez

Diaz , 557 U. S., at __ _ (slip op., at 6) (K EN NEDY , J., dissenting) (“T h e Court made clear in Davis that it will n o t permit the testimonialstatement of onewitness to ente r into evidence through t h e in-court testimony of a second.”). The New M e xico Supre m e Court stated that th e numbe r registered by the gas chromatogr aph machi n e called for no interpretation or exercise of independent judgment on Caylor’s pa rt. 226 P. 3d, at 8–9. We have already explained that Caylor certifiedto more than a machinegenerated number. See supra , at 3–4. In a n y event, the comparative reliability of an analyst’s testim onial report drawn from machine-produced data does not overcome the Sixth Ame n dment bar. This Court settled in Crawford that the “obviou[s] reliab[ility]” of atestimonialstatement does not dispense with the Confrontation Clause. 541 U. S., at 62; see id. , a t61 (Claus e “commands, not tha t evidence be reliable, b u t that reli ability be assessed in a particular manner: by testing [th eevidence] in the crucible of cross -examination”). Accordingly, the analysts wh o write reports that the prosecution introduces must be made available for con f rontation 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-alcoh ol analysis12 BULLCOMING v. NEW MEXICO Opinion of theCourt depended on “live, in-c ourt testimony [by] a q ualified ana

lyst,” 226 P. 3d, at 1 0 , the New Mexico Su preme Court believed that Razatos could s ubstitute for Caylor because Razatos “qu a lified as an expert wi tness with r e spect to the gas chrom a tograph machine and the S L D’s laboratory procedures,” id. , at 9. But surrogate testimony of t h e kind Razatos was equipped to give could not convey wha t Caylor k n ew or observed about th e events h i s certification concerned, i.e. , the pa rticular test and testin g process he employed. 7 Nor could such surrogate testimony expose any lapses or lies on th e certifying analyst’s pa rt. 8 Significant here, Razatos ha d no knowl e dge of the reason wh y Caylor had been placed on unpaid leave. WithCaylor on the stand, Bullcoming’s counsel could have asked questions design ed to reveal whether incompetence, evasiveness, or dishonesty accounted for Caylor’s removal from his work station. Not able inthis regard, th e State never asserted th at Caylor was “una vailable”; the prosecution conveyed o n ly that Caylor wa s 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 for m ality,” post , at 4. More fundamentally, as this Court stressed in Craw

ford , “[t]he text of th e Sixth A m endment does not sug­

——————

7 We do n o tquestionth at an aly s t Cay l or , inc o mmon withoth e r an alysts e m ploye dby SLD, lik ely would not recall a p a rticular test, give n the numberof tes t s e a c hanaly s t c o nduc ts and the stan dar dpr oc edure followed in te s t ing. Even so, Caylor ’s tes t imony under o a th would hav e enabled Bul l coming’s couns el to rai s e bef o re a jury questions concerning Caylor’s p r oficiency, thecare hetook in performing his work , and his vera cit y . In pa rt icula r , Bullc oming’scounsel likely would have inquired on cross-examinati o n why Caylor had been placed on unpai d leave.

8 At Bullcoming’s trial, Raza tos ac knowledg ed that “y ou don’ t know unless you actually observe the anal ysis that someone else conducts, whether the yf o llowed th[e] protocolin eve ry ins t ance.” App. 59.13 Cite as: 56 4 U

. S. ____ (2011) Opinion of theCourt gest any open-ended exceptions from the confrontation requirement to be developed by the courts.” 541 U. S., at 54. Nor is it “t he role of c o urts to ext r apolate from the word s of the [Conf r ontation Clause] tothe values b e hind it, and then to enforce its guar antees only to the exten ttheyserve (in the courts’ views) those unde r lying values.” Gilesv. California , 554 U. S. 3 53, 375 (2008). Accordingly, th e Clause does not tolerate disp ensing with confrontation simply because the court believ e s that questioning one witness about another’s testimoni a l statements provides a fair enough opportunity for cross-examination. A recent de cision involving another Six t h Am endment right—the right to co unsel—is instructive. In United Sta t esv. Gonzalez-Lopez , 548 U. S. 140 (200 6), the Government argued that illegitimatel ydenying a defendant his counselof choice did not violate the Sixth Amendment wher e “substitute counsel’s performance” did n o t demonstrably prejudice the defendant. Id. , at 144–145. This Court rejected the Govern me nt’s argum e nt. “[T]ru e enough,” the Court explained, “the purpose o f the rights set forth in [the Sixt h] Amendment is to ensure a fair trial; but it does not follow that the rights can be disr egarded 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 s h owing of prejudice is required to mak ethe violation ‘complete.’ ” Id. , at 146. If representation b ysubstitute counsel d oes not satisfy the Sixth Amendment, neither does the opportunity to confronta substitute witness. In short, w h en the State elected to introduce Caylor’s certification, Caylor bec a me a witn ess Bullcoming had the right to confront. Our preced ent cannot sensibly be read any other way. See Melendez-Diaz , 557 U. S., at ___ (s lip op., at 6) (K ENNEDY , J., dissenting) (Court’s ho lding means “the .

. . an alyst who must testify is the person who sign ed14 BULLCOMING v. NEW MEXICO Opinion of theCourt the certifica te”). III We turn, fi nally, to the Sta t e’s con t ention thatthe S L D’s blood-alcoh ol analysis reports are nontestimonial in character, therefore no Confrontation Clause question even arises in th is case. M e lendez-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 fin d inescapable. In Melendez-Diaz , a state forensic laboratory, on police request, an alyzed seiz ed evidence (plastic ba gs) and re

ported the laboratory’s analysis to the police (the substance found in the bags contained cocaine). 557 U. S., a t ___ ( s lip op., at 2). The“certificate s of ana lysi s” prepared by the analysts who te sted the evidence in Melendez-Diaz , this Court held, were “incontro ve rtibly

. . . a ffirmation[s] made for th e purpose o f establish i ng or proving some fac t” in a crimin a l proceedi n g. Id. , at ___ (s lip op. , at 4) (inte r nal quotation marks omitted). The same purpose wa s served by t h e certificat ein question here. The State maintains that the a ffirmations made b y analyst Caylor were not “adver s a rial” or “inquisitorial,” Brief for Respondent 27–33; instead, they were simplyobservations of an “independent scientis[t]” made “according to a n o n-adversari a l public d u ty,” id ., at 32–33. That argument fares no bet t er here than it did in Melendez

Diaz

. A do cument cre ated solely for an “evid e ntiary pur

pose,” Melendez-Diaz clarified, made in aidof a pol i ce investigation, ranks as testim onial

. 557 U. S., at ___ (s lip op., at 5) (forensic reports avail able for use at trial a r e “testimonial statements” and c e rtifying a nalyst is a
“ ‘witness’ for purposes of the Sixth Amendment”). Distinguishing Bullcoming’s case from Melendez-Diaz , where the analysts’ findings we re contained in certificate s “sworn to b e fore a notary public, ” id. , at ___ (slip op., at 2),15 Cite as: 56 4 U

. S. ____ (2011) Opinion of theCourt the State emphasizes that the SLD report of Bullcoming’s BAC was “unsworn.” Brief for Respondent 13; post , at 2 (“only sworn statement” here wa s that of R a zatos, “wh o was presen t and [ d id] testif[y]”). As the New Mexico Supreme Court recogn ized, “ ‘the absence of [an] oath [i]s not disposit ive’ in determining if a statemen t is testimonial.” 226 P. 3d, at 8 (quoting Cra wford , 541 U. S., at 52 ). Indeed, in Cra wford , this Court rejected as untenable any constructio nof the Co nfrontation Clause tha twould render inadmissible only sworn ex parte affidavits, whi l e leaving admission of formal, but unsworn statements “perfectly OK.” Id., at 52–53, n. 3. Reading the Clause in this “impla usible” ma nner, ibid. , the Court noted, would make the right to co nfrontation easily erasable. See Davis , 547 U. S., at 830–831, n. 5; id. , at 838 (T HOMAS , J., concurring i njudgment in part and dissenting in part). In all material respects, the laboratory report in th i s case resembles those in Mel e n dez-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. Sta t . Ann. §29–3–4 (2004). Like the analysts in M e lendez-Diaz , analyst Caylor tested the evidence and prepared a certificate con c erning 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 T HOMAS , J.), headed a “report, ” Ap p. 62. No teworthya s well, the S L D reportf o rm contai ns a legendreferringt o municipal and magistr a te courts’ r u les that provide for the admission of certified blood-alcohol analyses. In sum, the formalitie s attending the “report of blood alcohol ana lysis” are more than adequate to qualify Caylor’s assertions as testimonial. The absence of notarization does not remove his certi fica tion from C o nfrontation Clause governance. The New Mexico Supreme Court, guided by Melendez-Diaz , correc t ly recogniz ed that Cay­Opinion of theCourt 16 BULLCOMING v. NEW MEXICO Opinion of G IN SB U R G , J. lor’s report “fell within the core cl ass of testimonial statements” 226 P. 3d, at 7 , described in this Court’s leading Confrontation Clause decisions: Melendez-Diaz , 557 U. S., at ___ (sl i p op., at 4); Davis , 547 U. S., at 83 0; Crawfor d , 541 U. S., at 51–52. IV The State and its amiciurge th at unbending applicationof the Confron t a ti o n Clauseto fo rensi ce vide n ce wo ul d impose an undue burden on the prosecution. This argument, also advanced i nthe dissent, post , a t 10–11, largely repeats a refrain rehea r sed and rejected in Melendez-Diaz

. See 557 U. S., at ___–___ (slip op ., at 19–23). The constitutional requiremen t , we reiterate, “may n o t [be] disregard[ed] .

. . at our convenience,” id. , at ___ (slip op., a t 19), and the predictions of dire consequenc es, we again observe, aredubious, se e id. , at ___ (slip op., at 19–20). New Mexico law, it b e ars emphasis, requir e s the laboratory 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 h ttp://www.nmcpr.state. n m.us/nmac/ _title07/T07C033.htm, and neither party questions SLD’s compliance with that requireme nt. Retestin g “is almos t always an option .

. . in [DWI] cases,” Brief for Publi c Defender S e rvice for Districtof Columbia et al. as Am ici Curiae25 (hereinafter PDS Brief), and the State had tha t option here: New Mexic o co uld have avoided any Confrontation Clause problem by asking Razatos to retest the sample, and then testi f y to the results of his retest rathe r than to the results of a test he did not conduct or observe. Notably, New Mexico advoca tes retesting as an effective means to preserve a defendant ’s confrontation right “when the [out-of-court] sta t ement is ra w da ta or a mere tra nscription of raw data o n to a public record. ” Brief for R e spondent 53–54. But the State would requir ethe defen

dant to initiate retesting. Id. , at55; post , at 4 (defens eOpinion of theCourt 17 Cite as: 56 4 U

. S. ____ (2011) Opinion of G IN SB U R G , J. “remains free to .

. . . call and examine the technician who performed a test”), po st , 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 th e prosecution to present its witnesse s, not onthe defendant to bring th ose adverse witnesse s into court.”). Hence the obligation to propel retesting whe nthe original analyst is unavailable is the State’s, not the defendant’s. See Taylo r v. Illinois , 484 U. S. 4 00, 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 o w n”). Furthermore, notice-an d -demand procedures, long in effect in many jurisdictions, can reduce burdens on forensic laboratories. Statutes governing these procedure s typically “ r ender .

. . otherwise hearsay forensic reports admissible[, ] while specifically preserving a defendant’s right to de mand that the prosecution call the author/ analyst of [the] report.” PDS Brief 9; see MelendezDiaz , 557 U. S., at ___ (slip op., at 20) (observing tha t notice-and-demand statutes “permit the defendant to assert (or fo rfeit by silence) his Confrontation Clause righ t after receiving notice of the prosecution’s intent to use a forensic analyst’s repo rt”). Even before this Court’s decision in Cra wford , moreover, it was com m on prosecutorial pra ctice to callthe forensic analyst to testify. Prosecutors di d so “to bol s ter the pe rsuasive power of [the State ’ s] ca se[,] .

. . [even] when the defense would have preferred that the ana lyst did not testify.” P D S B r ief 8. We note also the “small frac tion of

. . . cases” t hat “ac t ually 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”). An d, “when cases in which forensic analysis hasOpinion of theCourt 18 BULLCOMING v. NEW MEXICO Opinion of G IN SB U R G , J. been conducted [do] go to tri al,” defendants “regularly .

. . [stipulate] to the admission of [the] analysis.” PDS Brief 20. “[A]s a result, analysts testify in only a very sma ll percentage of cases,” id. , at 21, for “[i]t is unlikely that defense cou n sel willin sist on l i vetestimony whose effect will be merely to highl i ght ra ther than cast doubt upon the forensic analysis.” Melendez-Diaz , 557 U. S., at ___ (slip op., at 22). 9 Tellingly, i njurisdictions in whic h “it is the [acknowl

edged] job of .

. . analysts to testify in court .

. . about their test results,” the sky has not fallen. PDS Bri e f 23. State and municipal laboratories “make operational and staffing decisions” t ofacilitate analysts’ appearance at trial. Ibid. Prosecutors schedule trial dates to accommodate analysts ’ availability, and trial courts liberally grant co ntinuances when unexpected conf licts 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 c o urt.” Id. , at 25. And, as is the pr actice in Ne w Mexico, s ee supra , a t16, laboratories ordinarily retain additional samples, enabling them to run tests again when necessary. 10

——————

9 The dissent argues otherwi s e, re por t in g a 71% in c r e ase, fr om 200 8 to 2 010, inth e n u m berof s ubpoen as for New M e x i c oan aly s ts’ te st imony in impa ired-driving cases. Post , a t1 1

. T h ed i s s e n ti s s i l e n t , h o wev e r , onth e n u m berof in stan c e s inwh ic hsubpoen a e d an aly s ts in fact testify, i.e. , th e fig u r eth at wou l d r e v e al th e actu al bu r d en of court r oomt e s t im ony. More over, New Me xico’s Depa rt m e ntof Hea l th, Scientific Lab o ratory Division, has attr ibuted the “c ha otic ” c o nditions noted bythe dissent, ibid. , to sev e r a l fav o r s , amongthem, staff attr i

tion, a state hiring freeze , a 15% increase in the n u mber of blo o d s a m p les received for t e s t ing, a n d “wildly” divergent re sponses by Ne w Mexico Dis t rictAt t o rneys to Melen dez

- Di az . Brief forState of Ne w Mexico Dept. of Health, S L D as Am icus Curiae2–5. S o me New M e xic o Dis t rictAt t o r n eys ’ offices , we a r e informed, “subpoen[ a] every analyst with anyc o nnec tion to ablo o d sa mple,” id. , at 5, anex orbitan tpr ac tic e that undoubtedly inflates th e number of s ubpoenas issu ed.

10 Th e dissen tr e fer s , selec t iv ely , to ex per i en ce inLos An g e l e s, post , at19 Cite as: 56 4 U

. S. ____ (2011) Opinion of theCourt * * * For the reasons stated, the judgme nt of the New Mexico Supreme C o urt is reversed, and t h e case is remanded for further proc eedings not inconsistent with this opinion. 11
It is so orde red.

—————— 10, but overlooks experience document ed inM i c h ig an . Inth at St ate , post- Melendez - Diaz , the increase in in-court an aly s t tes t i m on yh a s bee n sligh t

. Compa r e PDS Br ief 21 (in200 6, an aly s ts pr ov ide dtesti m on yfor on ly0.7% of all tes t s), wit hM i c h igan State Police, F o rensic Science Divis i on, available at http://www .michigan. gov/ms p/0,1607,7-123­ 159 3_3 800- 15 901--,0 0 .h tml (in201 0, an a l y s ts pr ov ided tes t imon yfo r approximately1% of all tests).

11 As in Melendez - Diaz , 557 U. S., at ___, and n. 14 (sli p op., at 23, and n. 14), we express no vi ew on whethe r the Confrontation Clause error in t h is c a s ewas ha rmles s . The New Mexico S u p r em e Courtdid
n o t r e ac hth atqu est i on , see Br ief forResp on den t59– 60, an d n o th in gi n this opinion impedes a harmless-error inquiry on remand._________________

_________________ 1 Cite as: 56 4 U

. S. ____ (2011)
S OTOMAYOR , J

. , con c u rrin ginpa rt 

## SUPREME CO URT O FTHE UNI TED STATES

No. 09–1 08 76
DO NAL D B U LLC OMI N G, P E TIT I ONER v. NEW MEXICO ON WRIT OF CERTIORARI TO THE SUPREME COUR T OF NEW MEXICO [Ju n e23, 2011 ] J USTICE S OTOMAYOR , c o ncurring i npart. I agree with the Court that the trial court erred b y admitting t h e blood alcohol concentration (BA C ) report. I write separ a tely first t ohighlight whyI view the reporta t issue to be testimonial—specif ically because its “primary purpose” is evidentiary—and second to emphasize the limited reach of the Court’s opinion. I A Under our precedents, the Ne w Mexico Supreme Court was correctto hold that th e certified BAC report in this case is testimonial. 20 10–NMSC– 007, ¶18, 226 P. 3d 1, 8. To determine if asta t ement is t e stimonial, we must decide whether it has “a primary purpose of creating an out-of-courtsubstitute for trial testimony.” Michigan v. Bryant , 562 U. S. ___, ___ (2011) ( s lip op., at 11). When the “primar ypurpose” of a statement is “not to create a record for t r ial,” ibid. , “the admissibility of [th e ] statemen t 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

sachus etts, 557 U. S. ___ (2009), we held that “certificates2 BULLCOMING v. NEW MEXICO
S OTOMAYOR , J

. , con c u rrin ginpa rt of analysis,” completed by employees of the State Labora

tory Institu t e of the M a ssachusetts Departme n t of Public He alth, id. , at ___ (slip op., at 2), were testimonial because they were “incontrover t ibly .

. . ‘ “solemn declaration[s] or affirmation[s] made for the purpose of establishing or proving so me fact,” ’ ” id. , at ___ (slip op., at 4) (quoting Cra wfordv. Washin gto n , 541 U. S. 36, 51 (2004), in turn quoting 2 N. Webster, An American Dictionary of the English Language (1828)). As we e x pl ained earlier this Term in Michigan v. Br y ant , 562 U. S. ___ (2010), “[i]n m a king the primary purpose determination, s t andard rules of hears a y . . . will be relevant.” Id. , at ___ ( s lip op., at 11–12). 1 A s a p p l i e dt oa scientific report, Melen dez-Diaz explained that pursuan t to Federal Rule of Evidence 803, “[d]ocuments kept in the regular course of busi n ess ma y ordinarily be admitted at trial despite their hear say status,” except “if the regularly conducted business ac tivity is th e productio nof evidence for use at trial.” 557U. S., at ___ ( s lip op., at 15–1 6) (citing Fed. Rule Evid. 803(6)). In that circu mstance, the hearsay rul e s bar admi ssion of even business records. Relatedly, in the Confrontation Clause context, business and public records “are generallyadmissible absent con

frontation .

. . because—having b een created for the administration of an entity’s affairs and not for the purpose of establish i ng or proving some fac tat 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 us e at trial, they were n o t

——————

1 Cont ra ry t ot h e dis s e nt ’s cha r a c t e riza t i on, Bryant dee m ed reliab ility, as reflecte d in the hears a y rules, to be “r elev ant,” 5 62 U. S., a t

__ _ (slip op., a t1 1 –12), n o t “es s e n t ial,” post , at 5 (op i nion of K ENNEDY , J.). The rules of evidence, not the Co n f r o ntationC l au se , ar e desig n ed primarily to p o lice reliabi lit y; the pu rposeof the Confrontation Cl ause is to determine whether statements are testimoni a l and therefore req u ire conf ront a t ion.3 Cite as: 56 4 U

. S. ____ (2011)
S OTOMAYOR , J

. , con c u rrin ginpa rt properly admissible as business or public re cords unde r the hearsay rules, id. , at ___ (s lip op., at 15–1 6), nor were they admissible underthe Confrontation Clause, id. , at ___ (s lip op. , at 18). The hearsay rule’s recognition of th e certificates’ evidentiary purp ose thus confirmed our decision that the certificates were testimonial under the primary pu rpose analysis required by the Confrontation Clause. See id. , at ___ (slip op. , at 5) (explaining that under Massachusetts law not ju st the purpose but the

“ sole pur p os eof the affidavits was to provide” evidence). Similarly, in this case, fo r the reasons the Court sets forth the BAC repor tand Caylor’s certification on i t clearly hav e a “primar ypurpose of creating a nout-of-court substitute for trial test imony.” Br yant , 562 U. S., at ___ (slip op., at 11). The Court also explains why the BAC report is n o t materially distingui s hable from the certi ficates we he ld testimonial in Melen dez-Diaz

. See 557 U. S. , at ___ (slip op., at 2, 4–5). 2 The formality inherent in the certification further sug

gests its evidentiary pu rpose. Although “[f]ormality is not the sole touchstone of our prima r y pu rpose inquiry,” a statement’s formality or informal ity 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 , howev e r, th at ev eryp e rson noted on the BAC
r e p o r tm u s tt e s t i f y . A s w e e x p l a i n e di n Mele n dez - Diaz , it i s not the c a se “tha tany o ne whose testimonymayb er e lev a nt in establi s hingthe chain of custody, authentici ty of th e sample, or accura cy of the testing device, must appear in perso nas part of the prosecution’s case .

. . . It is up to the prosecution to d e cide wh at ste p s in the chai n of custody are so crucial as t orequire e v idence .

. . .” 557 U. S., at ___, n. 1 (slip op., at 5, n

. 1).

3 By looking to the formalityof a st ate m e n t, we do not “tr ea[t] the reliabil i ty of evidence as a reason to exclude it.” Post , at 5 (K ENNEDY , J., dissen t in g)

. Alth ou ghi nsome in stan c e s for m alityc o u l d sig n al r e liabil

ity, the dis s e nt’s a r gument f a ils to apprecia te tha t , under ou r Confro ntation Clause precedents, formality i s pr imarily an in dicator of tes t i­4 BULLCOMING v. NEW MEXICO
S OTOMAYOR , J

. , con c u rrin ginpa rt I agree with the Court’s assessment that the certificate at issue h e re is a formalstatement, despite the absence o f notarization. Ante , at 14–15; Crawford , 54 1 U. S., at 52 (“[T]he absence of [an] oath [is] not disposi t ive”). The formality derives from the fact tha tthe analyst is asked to sign his name and “ce rtify” to both the res u lt and th e statements on the form. A “certification” requires one “[t]o attest” that the accompanyin g statements are true. Black’s La w Dictionary 258 (9thed. 2009) (definition of “certify”); s ee also id. , at 147 (defi n ing “attest” as “[t]o bear witness; testify,” or “[t]o affi rm to be true or genuine; to authenticate by signing as a witness”). In sum, I am compelled to conclud ethat the r e port has a “primar yp u rpose of cr eating an o u t-of-court substitute for trial testimony,” Bryan t , 562 U. S., at ___ (slip op., at 11), which renders it testimonial. B After holding that the report was testimonial, the NewMexico Supreme Court nevertheless held that its admission was p e rmissible under the Confrontation Clause f o r two reasons: because Caylor was a “mere sc rivener,” and because Razatos could be cross-examined on the workin gs of the gas chromatogra p h and laboratory p r oc edures. 226 P. 3d, at 8– 10. The Co urt con vincingly explai ns why those

—————— monial pur p os e. For m ality is not th e sole indicator of the testimoni a l nature of a statement because itis too easily evaded. See Davi sv. Washin gton , 547 U. S. 81 3, 838 (20 06) (T HOMAS , J

. , con c ur ringi n judgment in part and di ssenting in part). Nonetheless formali t y has long been a hallmark of t e stimon i a l statements bec a use formali t y su g g e sts th atth e state m en t is in ten d ed for use at trial. As we explained in Bryant , info rma lity, onthe othe r ha nd, “does not neces s a rily indicate . . . l a ck of testimo n ial inte nt.” 562 U. S., at ___ (slip op., at 19). The dis s ent it self recognizes the relevance of fo rmality to the testi m onial in quiry when i tnotes the formality of the problemati c unco n fronted statements in Si r Walter Raleigh’s trial

. Post , at 7– 8 (opinion of K E NNEDY , J.).5 Cite as: 56 4 U

. S. ____ (2011)
S OTOMAYOR , J

. , con c u rrin ginpa rt rationales are incorrect. Ante , at 9–13. Therefore, the New Mexic ocourt contravened our precede n ts in holdi n g that the rep o rt was ad missible via Razatos’ te stimony. 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, mu ch less an alternate primarypurpose, for th e BAC repo rt. For exa m ple, the S t ate has no t claimed that the report was necessary to provi d e Bullcoming with me dical treat ment. See Bryant , 562 U. S., at ___ , n. 9 (slip op., at 15, n. 9) (listing “Statements for Purpos es of Medical Diagnosis o rTreatment” under Fe deral Rule of Evidence 803(4) as a nexample of statem ents that are “by their nature, made for apurpose other than use ina prosecution”); Melendez-Diaz , 557 U. S., at ___, n. 2 (sl i p op., at 6, n. 2) (“[M]edical reports created for treatmen t purposes . . . would no t be testimonial under our decision today”); Gi lesv. California , 554 U. S. 353, 376 (2008 ) (“[S]ta t ements to phy s icians in the course of receiving treatment would be excluded, if at all, onlyby hearsa y rules”). Second, thi s is not a c a se in which the person testifying is a supervisor, reviewer, or someo n e else witha personal, albeit lim ited, connection to the scientific test at issue. Razatos co nceded on cross-examination that he played no role in producing the BAC repor ta n d did not observe an y portion of C u rtis Caylo r ’s condu ct of the testing. App. 5 8

. The court below also recogniz ed Razatos’ total lack of connection to the test at issue. 2 26 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 ad­6 BULLCOMING v. NEW MEXICO
S OTOMAYOR , J

. , con c u rrin ginpa rt dress what degree of involvement is sufficient becausehere Razatos had no involvement whatsoever in the relevant test an d report. Third, this is not a case in which an expert witness was asked for his independ ent opinionabout underlying testimonial rep o rts that were no t themselves admitted into evidence. See Fed. Rule Evid. 703 (explaining that facts o r data of aty pe upon wh ich experts in the field would reasonably rely in forming an opinion need not be admissib l e in order fo r the expert’s opinion based on th e facts and data to be admitted). As the Court notes, ante , at 12, the State does not assert that Ra zatos offered an independent, expert opinion about Bullcoming’s blood alcoh o l concentration. Rather, the State explains, “[a]side from reading a report thatwas introduced as an exhibit, Mr. Razatos offered no opinion abou tPetiti oner’s bloodalco hol content

. . . .” Brief for Respondent 58, n. 15 (citation omitted)

. Here the S t ate offered the BAC re port, includ ing Caylor’s testimonialstatements, into evid ence. We would face a different question if as ked to deter m ine the constitutionality of allowing an expert witness to discuss others’ testimonial stat ements if th e testimon ial stateme n ts were no t themselves admitted as evidence. Finally, this is not a case in which the State introduced only machine-generated results, such as a p r intout from a gas chroma tograph. T h e State h e re introduced Ca ylor’s statements, which incl uded his transcription of a blood alcohol concentration, apparent ly copied from a gas chromatographprintout, along withother statements about the procedures used in handling the blood sample. See ante , a t10; App. 62 (“ I certify th at I followed the p r ocedures set out on the r e verse of this report, and the statements in this block are correct”). Thus, we d onot decide whether, as the New M e xico Supre m e Court s u ggests, 22 6 P. 3d, at 10, a State could introduce (assuming an a d equate chain of custody foundation) raw data generated byCite as: 56 4 U

. S. ____ (2011) 7
S OTOMAYOR , J

. , con c u rrin ginpa rt a machine in conjuncti on with the testimony of an exper t witness. See Reply Bri e f 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 testimonial, and the tria lcourt erre d in allowing the S t at e to introduce it into evidence via Razatos’ testimony. I respectfullyconcur._________________

_________________ 1 Cite as: 56 4 U

. S. ____ (2011)
K ENNEDY , J., di s s e nting 

## SUPREME CO URT O FTHE UNI TED STATES

No. 09–1 08 76
DO NAL D B U LLC OMI N G, P E TIT I ONER v. NEW MEXICO ON WRIT OF CERTIORARI TO THE SUPREME COUR T OF NEW MEXICO [Ju n e23, 2011 ] J USTICE K ENNEDY , with whom THE C HIEF J USTICE , J USTICE B RE YE R , and J USTICE ALI TO join, dissenting. The Sixth Amendment Confronta t ion Clause binds the States and the National Government. Pointer v. Texas , 380 U. S. 400, 403 (19 65). 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 int r oduced based on the authority of that report’s own sworn stat ement that a test had bee n performed yielding the results as shown. Melendez-Diaz v. Massa chuse tts , 557 U. S. ___ (2009). The Court’s opinio n in that case held the report inadmissible because no one was present at trial to t e stify to its contents. Whether or not oneagrees with the reasonin g and the result in M e lendez-Diaz , the Court today takes the new and serious misstep of extending that holding to instances lik e this one. H e re a k n owledgeable representative of the laboratory was p r esent to testify and to ex plain the lab’s processes and the deta ils 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, th e Court finds a confrontation violation. Some of the princi

pal objections to the C o urt’s underlying theory have been set out earlier and need not be repeated here. See id., at

___ (K ENNEDY , J., diss enting). Additional reasons, appli

-2 BULLCOMING v. NEW MEXICO
K ENNEDY , J., di s s e nting cable to the extension of that do ctrine and to the new ruling in this case, are now expl ained in support of this respectful d i ssent. I Before today, the Cour t had not h e ld that th e Confron

tation Clause bars admission of scientific findings whe n an employee of the testing laboratory auth e nticates the findings, testifies to th e laboratory’s methods and prac

tices, and is cross-examined at trial. Far from replacing live testimony with “ s ystematic” and “ext r a judicial” ex

aminations, Davisv. Washingt on, 547 U. S. 813 , 835, 83 6 (2006) (T HOMAS , J., concurring i njudgment in part and dissenting i npart) (emphasis deleted and internal quota

tion mark s omitted), these procedures are fully consistent with the Confrontation Clause a n d with well-establish e d principles for ensuring that crimi nal trials are conducte d in full accord with requirements of fairness and reliability and with the confrontation guarantee. Theydo not “re

semble Mari an proceedings.” Id., at 837. The procedures follow e d here, bu t now invalidated b y the Court, make live testimony r a ther thanthe “solem

nity” of a document the primary r e ason to credit the labo

ratory ’s scientific results. Id., at 838. Unlike MelendezDiaz , wher e the jurywas aske d to credi t a laboratory’s findi n gs based solely ondocuments that were “quite plain l y affidavits,” 557 U. S., at ___ ( s lip op., at 1) (T HOMAS , J., concurring) (internal quotation marks omit

ted), here the signature, heading, or legend on the doc u ment were routine authentication elements for a repo rt that would be assessed and expl ained by in-court tes t i

mony subject to full cross-examin ation. The only swor n statement at issue was that of the witness who was pre sent and who testified. The record reveals that th e certifyi n g analyst’s role here was no gre a ter than that of anyo n e else in the chain of3 Cite as: 56 4 U

. S. ____ (2011)
K ENNEDY , J., di s s e nting custody. App. 56 (laboratory employee’s testimony agree

ing that “once the ma terial is prepared and placed in the machine, you don’t nee dany parti cular exper t ise to recor d the results”). The infor m ation contained in the report was the result of a scientific pr ocess co mprising m u ltiple par

ticipants’ acts, each with its own evidentiarysignificance. These acts included receipt of the sample at the labora

tory; record ing its receipt; storingit; placingthe sample into the testing device; transposing the printout of the results of the test onto the report; and revi ew of the re

sults. See Id., at 48– 56; see a l so Brief for State of New Mexico Dept. of Health Scientific Laboratory Division as Amicus Curiae4 (herei nafter New Mexico Sci e ntific Labo

ratoryBrie f) (“Ea ch b l ood sample has original testing work b y. . . 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 fo r Sta t e of Indiana et al. as Amici CuriaeinBri scoev. Virginia, O. T. 2009, No. 0 7– 11191, p. 10 (hereinaf ter Indiana Brief) (explaining that DNA analysis can invo lve the com b ined efforts of up to 4 0 analysts). In the New Mexico scientific laboratory wher e the blood sample was processed, analyses are run in batches involv

ing 40–60 s a mples. E a ch 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 mecha n i

cally performed by the gas chromatograph, which ma y operate—as in this case—after all the laboratory employ

ees l e ave fo r the day. See id., at 17. And whatever the result, it is reported to both law enforce ment and the defense. Se e id., at 36. The representative of the testing laboratory whom the prosecution called was a scientific analyst named Mr.4 BULLCOMING v. NEW MEXICO
K ENNEDY , J., di s s e nting Razatos. H etestified that he “help[ed] in overseeing the administrat i on of these programs throughou tthe State, ” and he was qualified t oanswer q u estions concerning each of these st eps. App. 49. The Court has held that the government need not produce at trial “everyo n e who laid hands on th e evidence,” Melendez

- Diaz, supra , at ___, n. 1 (slip op., at 5, n. 1). Here, the defense us ed the opportu

nity in cros s -examination to highlight the abs ence at tria l of certain l aboratory e m ployees. Underqu estioning by Bullcoming’s attorney, Razatos ack n owledged that his name did n o t appear o nthe repo rt; that he di d not receive the sample, perform th e analysis, or complete the review; and that h edid not know the re ason for some personnel decisions. App. 58. After weigh i ng arguments from de

fense couns el concerning these ad missions, a n d after con

sidering the testimon y of Mr. Razatos, who k n ew the laboratory’s protocols and pr ocesses, the jury found no reasonable doubt as to the defendant’s guilt. In these circumstances, requiring the State t o call the technician who filled out a form a n d recorded the results of a test is a hollow formality. The defense remains free to challenge a n y and all forensic evidence. It may call an d examine the technician who performed a test. And it may call other expert witne sses to explain that tests are not always reliable orthat the technician might h ave made a mistake. T h e jurycanthen decid ewhether t ocredit the test, as it did here. The States, furthermore, can assess the progress of scientif ic te sting and enact or adopt stat

utes and rules to ens u re that only reliable evidence is admitted. Rejecting these comm onsense arguments and the concept that reliability is a legitimate concern, the Court toda y takes a different course. It once more as

sumes for i t self a cent ral role in mandating detailed evi

dentiary rules, thereby extending and confirming Melendez-Diaz’s “vas t potential to disrupt c r iminal proce

dures.” 557 U. S., at ___ (slip op., at 3) (K ENN E DY , J.,5 Cite as: 56 4 U

. S. ____ (2011)
K ENNEDY , J., di s s e nting dissenting). II The protections in the Confrontation Clause, and indee d the Sixth Amendment in general, are designe dto ensure a fair trialwith reliable evidence. But the Cra wford v. Washin gton , 541 U. S. 36 (2004), line of cases has treated the reliabi li ty of evidence as a reason to exclude it. Id. , a t 61–62. Tod a y, for example, the Court bars admission of a lab report because it “is formalized in a signed document.” Ante , at 15 (internal quotationmarks omitted). The Court’s un conventional and uns tated prem ise is that the State—by acting to ensure a statement’s reliability— mak e s the statement more formal and therefore less l i k e l y to be admitted. Park, Is Confrontation the Bottom Line? 19 Regent U. L. Rev. 459, 461 ( 2007). Th at is so, the Court insists, because reliabi lity does not animate the Confrontation Clause. Ante , at 11; Melendez-Diaz , sup ra , at ___ (slip op., at 11–12); Cra wfor d , supra , a t61–62. Yet just this Te rm the Cou rt ruled tha t , in another confronta

tion context, reliability was an essential part of the consti

tutional inquiry. See Michiganv. Bryan t , 562 U. S. _

_

_, ___–___, ___–___ (20 1 0 ) (slip op., a t11–12, 14–15). Like reliability, other principles have weaved i nand out of the Cra wford juris p rudence. Solemnity has sometimes been dispos itive, see M e lendez-Diaz , 557 U. S., at ___ ( s li p op., at 6); id

. , at ___ ( s lip op., at 1) (T HOMAS , J., concur

ring), and s o metimes not, see Davis , 547 U. S., at 834–837, 841 (T HOMAS , J., concurring injudgment in part and dissenting in part). S o , too, with the elusiv e distinction between utterances aimed at proving past events, a n d those calcul ated to hel p police k eep the peace. Compare Davis, sup r a , and Br yant , 562 U. S., at ___–___ (slip op., at 24–30), with id. , at ___–___ (s lip op., at 5–9) (S CAL IA , J. , dissenting). It is not even clear whic h witnesses’ testi m ony could6 BULLCOMING v. NEW MEXICO
K ENNEDY , J., di s s e nting render a s c ientific report admis s ible under the Court’s approach. Melendez-Diaz stated an inflexible rule: Wher e “analysts’ affidavits” included“testimonial statements,” defendants were “entitl e d to be confronted wi th the ana

lysts” them selves. 557 U. S., at

_ __ (slip op., at 5) (inter

nal quotation marks o m itted). N o w, the Co urt re veals, this rule is either less clear than it first appeared or too strict to be followed. A repo rt is a d missible, t o day’s opin

ion states, if a “live witness competent to t e stify to th e truth of the statements made in the report” ap pears. Ante , at 1. Suchwitnesses include not just the ce rtifyingan a lyst, but also any “scientist who . . . perform[ed] or ob

serve[d] the test report ed in the certification.” Ante , at 2. Today’s ma jority is not committed in equal s hares to a common set of principles in applying the holding of Cr aw ford

. Compare Davi s , supra(opi nion for the Court by S CALI A , J.), with id. , at 834 (T HOMAS , J., c o ncurring in judgment i npart and dissenting in part); and Bryan t , supra , (opi nion for the Court by S OTOMAYOR , J

. ), wi th id. , at ___ (T HO MA S , J., c o ncurring in judgment), and id. , at ___ (S CALIA , J., dissenting), and id

. , at ___ (G INSBU R G , J., dissenting); and ante , at ___ (slip op., at 1) (opinion of th e Court), wit h ante, at ___ (s lip op ., at 1) (S OTOMAYOR , J., concurring). That the Court in th e wake of Crawfor dha s had such trouble fash ioning a clear vision of that cas e ’s meaning is unsettling; for Crawfor d binds every judge in every criminal trial in every local, state, and federal court in the Nat i on. This Court’s p r ior decisions leave trial judges to “guess what future rul e s this Court will distill from the sparse constitutional text,” Melendez- Diaz, supra, at ___ (slip op., at 2) (K ENNEDY , J., dissenting) , or to strug

gle to apply an “amo rphous, if not entirely subjectiv e ,” “highly con t ext-dependent i nquiry” involving “open-ended balancing.” Bryant, supra, at ___ (slip op., at 15–16) (S CALI A , J., dissenting) (internal quotation marks omitte d) (listing 11 factors relevant under t h e majority’s approach)

.7 Cite as: 56 4 U

. S. ____ (2011)
K ENNEDY , J., di s s e nting The persistent ambiguities in the Court’s ap proach ar e symptomati c of a rule not amenable to sensible applica

tions. Procedures involving multiple participants illus

trate the p r oblem. In Melendez-Diaz the C o urt insisted that its opi n ion did not require everyone in the chain of custody to testify but then qualified that “wh a t testimony isintrodu ced must . . . be intro duced live.” 557 U. S. , at ___, n

. 1 (slip op., at 5, n. 1) ; ante , at 6, n. 2. This could mean that a sta t ement that evidence remained in law-enforcement custody is admissible if th e statemen t’s maker appears in court. If so, an intern at police hea d

quarters could review the evidence log, declare that chain of custody was retained, and so te stify. The r u le could also be that that the intern’s statement—which draws on statements in the evidence log—is inadmissible unl e ss every officer who signed the log appears at trial. Th at 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 in stances, 7 o r even 40 witnesses cou l d be required. See supra, at 3. The court has thus—in its fidelity to Melendez-Diaz —boxe d itself into a choice of evils: render the Confrontation Clause pro forma or construe it so that its dictates are unworkable

. III Cra wford itself does n o t compel today’s conclusion. It is true, as Cr awford confirmed, that the Confrontation Clause seeks in part to bar the go vernment f r om replicat

ing trial procedures ou tside of public view. See 541 U. S., at 50; Brya nt , sup ra, at ___ (slip op., at 11–12). Cra wfor d explained that the basic purpose of the Clause was to address th e sort of abuses exem plified at the notoriou s treason trial of Sir Wa lter Raleigh. 541 U. S., at 51. On this view the Clause operates tobar admis s ion of out- of

court sta t ements obtained through formal interrogation in8 BULLCOMING v. NEW MEXICO
K ENNEDY , J., di s s e nting preparationfor 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 observ ed—preparation for or commi ssion of the crime. An d, of course , those stat ements might not hav e been uttered at all or—even if s p oken—might not have been true. A rule that bars testimony of that sort, however, pro

vides neither cause nor necessi ty to impos ea constit u tional bar on the admission of impartial lab reports like the instant one, reports preparedby experienced techni

cians in laboratories that follow professional norms an d scientific protocols. In addition to the constitutional right to call witnesses in his own de fens e, the def e n d ant in this case was already prote cted by che c ks on potential prosecu

torial abuse such as free retesting for defendants; result

blind issuance of rep o rts; testing byan i n dependent agency; routine processes performed en masse, which reduce opportunities f o r targeted bias; and labs operatin g pursuant to scientific and profe ssional nor ms and over

sight. See Brief for Respondent 5, 14–15, 41, 54; Ne w Mexico Scientific Laboratory Brief 2, 26. In addition to preventing the State from conducting ex partetrials, Crawford ’s rejection of the regime of Ohiov. Roberts , 44 8 U. S. 56 (1980), seemed to have two under

lying jurisprudential objective s. One was to delink the intricacies of hearsay law from a constitutional mandate; and the other was to allow the States, in theirown courts and legislatures and without this Court’s supervision, to explore and develop sensibl e , specific evidentiary rules pertaining to the admissibilityof certain statements. These results were to be we lcomed, for this Court lacks the experience and day-to-dayfamiliarity with the trial process to suit it well to assume th e role of national tribu

nal for rules of evidence. Yet far from pursuing these objectives, the Court r ejects th em in favor of their oppo

-9 Cite as: 56 4 U

. S. ____ (2011)
K ENNEDY , J., di s s e nting sites. Instead of f r eeing the Clause from reliance on hearsay doctrines, t h e Court h a s now linked the Clau se with hear

say rules in their earliest, most rigid, and least refined formulation s . See, e.g. , Mosteller, Remaking Confronta

tion Clause and Hears a y 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, 502–50 3, 514–515, 533–537 (1999). In ca ses like Melendez-Diaz and this one, the Court has tied the Confrontation Clause t o18th cen

tury hears a y rules unleavened by principl es tending to make those rules more sensibl e . Sklansky, He arsay’s Las t Hurrah, 20 09 S. Ct. Re v. 1, 5–6, 36. As a result, the Court has taken the Clause far beyond its most important a p plication, which is to forbid sworn, ex par t e, out-of-court statements by unconfronted and available wit n esses who observed the crime and do not appear at trial. Second, the States a r e not just at risk of havi n g some of their hearsay rules rev i ewed by th is Court. T h ey often ar e foreclosed now from c o ntributingto the formulation and enactment of rules that make tria l s fairer and more reli

able. For i n stance, re cent state l a ws allowing admission of well-doc u mented and supported reports of abus e by women wh ose abuser s later murdered the mmust gi ve way, unless that abuser murdered with the s p ecific pur

pose of foreclosing the testimony. Gilesv. Cal ifornia , 554 U. S. 353 (2008); Sklansky, sup r a, at 14–15. Whether those statutes could provide suffici ent indicia of reliabi lity and other safeguards to comply with the Confrontation Clause as it should be understood is, to be sure, an open question. T h e 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 S t ates and dislocation of the feder a l structu re. Cf. Mel e nd ez-Diaz, su pra, at ___, ___, ___ (s l i p10 BULLCOMING v. NEW MEXICO
K ENNEDY , J., di s s e nting op., at 2–3, 22–23). If this Court persists in applying wooden formalism in order to bar reliable t e stimony of

fered by the prosecution—testimony thought proper for many deca des in stat e and federal courts committed to devising fair trial processes—then the States might find it necessary and approp r i ate to enact statu t es to accommo

date this new, intrusive federa l regime. If they do, those rules could remain on State stat ute books for decades, even if sub s equent decisions of this Court were to better implement the objectives of Crawford

. This underscores the disruptive, long-term structur a l consequences of deci

sions like th e one the Court announces today. States also may decide it is prop er and appropriate to enact statu t es that require defen s e counsel to give ad

vance notice if they ar e going to object to introduction of a report with out the pre s ence in court of the t e chnician who prepared it. Indeed, t o day’s opinion reli es u p on 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 t oinsist on having th e certifying analyst pre s ent. There is in the ordinary ca se 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 opi n ion repeats an assertion from MelendezDiaz 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 appe ar ances durin ga 1- year period); Bri e f for Natio nal District Attorneys Assocation et al. as Amici Curi ae23 (observing that each blood-alcoh ol analyst in Californ i a processes 3,220 cases per year on averag e). New and more rigorous empirical studies further detailing the unfortunate effects11 Cite as: 56 4 U

. S. ____ (2011)
K ENNEDY , J., di s s e nting of Melendez

- Diaz are s u re to be forthcoming. In the meantime, New Mexico’s experience exemplifies the problems ahead. From 200 8 to 2010, subpoenas re quiring Ne w Mexico a nalysts to t e stify in impaired-drivi n g cases rose 71%, to 1,600—or 8 or 9 every workda y. Ne w 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. Th e analysts now must tra vel great di stances on most worki n g days. The result has been, in the laboratory’s words , “chaotic.” I d ., at 5. And if the defense raises an objection and the an alyst 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 i n ever-greate rnumbers to a prosecution failur eor inability to produce laboratory analysts at trial. The concomita n t increases insubpoenas will further impede the state labo

ratory’s ability to keep pace with its obligati o ns. Scarce state resources could be comm itted to other urgent needs in the criminal justice system. * * * Seven years after its initiation, it bears re membering that the Crawfor d approach was not preordained. This Court’s mis s teps have produced a ninterpret a tion of th e word “witness” at odds with i t s meaning elsewhere in the Constitution, including elsewhere in the Sixth Amend

ment, see Amar, Sixth Amendm ent First Principles, 84 Geo. L. J. 641, 647, 691–696 (1996), and at odds with the sound administrat i on of justice. It is time to return to solid ground. A pro p er place to begin that return is to decline to extend Melendez-Diaz to bar the r e liable, com

monsenseevidentiary framew orkthe State sought to follow in thi s case.