(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 declarant is unavailable, and only where the defendant has had a prior 

opportunity to cross-examine.” Later, in Melendez-Diaz v. Massachusetts, 557 U. S. ___, the Court declined to create a “forensic evidence” 

exception to Crawford, holding that a forensic laboratory report, created specifically to serve as evidence in a criminal proceeding, ranked 

as “testimonial” for Confrontation Clause purposes. 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 report’s statements. 557 U. S., at ___. 

Petitioner Bullcoming’s jury trial on charges of driving while intoxicated (DWI) occurred after Crawford, but before Melendez-Diaz. 

Principal evidence against him was a forensic laboratory report certifying that his blood-alcohol concentration was well above the threshold for aggravated DWI. Bullcoming’s blood sample had been tested

at the New Mexico Department of Health, Scientific Laboratory Division (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 undisclosed 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 results, and (2) SLD analyst Razatos, although he did not participate in

testing Bullcoming’s blood, qualified as an expert witness with respect 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 opinion concludes, does not permit the prosecution to introduce a forensic 

laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimony

of an analyst who did not sign the certification or personally perform 

or observe the performance of the test reported in the certification. 

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. Pp. 8–16. 

(a) If an out-of-court statement is testimonial, it may not be introduced against the accused at trial unless the witness who made the

statement is unavailable and the accused has had a prior opportunity 

to confront that witness. 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 integrity or the analysis’ validity. These representations, relating to 

past events and human actions not revealed in raw, machineproduced data, are meet for cross-examination. The potential ramifications 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, however, 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 because 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 accounted 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 introduction of the SLD report did not implicate the Confrontation Clause because the report is nontestimonial. Like the certificates in MelendezDiaz, the SLD report is undoubtedly an “affirmation made for the 

purpose of establishing or proving some fact” in a criminal proceeding. 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 required by law to assist in police investigations. Like the MelendezDiaz 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 attending the report were more than adequate to qualify Caylor’s assertions 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, Washington, 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 testimonial for purposes of the Sixth Amendment’s Confrontation 

Clause. The report had been created specifically to serve

as evidence in a criminal proceeding. Absent stipulation, 

the Court ruled, the prosecution may not introduce such a 

report without offering a live witness competent to testify

to the truth of the statements made in the report. 

In the case before us, petitioner Donald Bullcoming

was arrested on charges of driving while intoxicated

(DWI). Principal evidence against Bullcoming was a forensic laboratory report certifying that Bullcoming’s bloodalcohol 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 participated in nor observed the test on Bullcoming’s blood sample. The New Mexico Supreme Court determined that, 

although the blood-alcohol analysis was “testimonial,” the 

Confrontation Clause did not require the certifying analyst’s in-court testimony. Instead, New Mexico’s high

court held, live testimony of another analyst satisfied the 

constitutional requirements.

The question presented is whether the Confrontation

Clause permits the prosecution to introduce a forensic 

laboratory report containing a testimonial certification—

made for the purpose of proving a particular fact—through

the in-court testimony of a scientist who did not sign the 

certification or perform or observe the test reported in the

certification. We hold that surrogate testimony of that

order does not meet the constitutional requirement. The 

accused’s right is to be confronted with the analyst who 

made the certification, unless that analyst is unavailable 

at trial, and the accused had an opportunity, pretrial, to

cross-examine that particular scientist. 

I 

A 

In August 2005, a vehicle driven by petitioner Donald

Bullcoming rear-ended a pick-up truck at an intersection 

in Farmington, New Mexico. When the truckdriver exited 

his vehicle and approached Bullcoming to exchange insurance information, he noticed that Bullcoming’s eyes were

bloodshot. Smelling alcohol on Bullcoming’s breath, the 

truckdriver told his wife to call the police. Bullcoming left 

the scene before the police arrived, but was soon apprehended by an officer who observed his performance of field 

sobriety tests. Upon failing the tests, Bullcoming was 

arrested for driving a vehicle while “under the influence of

intoxicating liquor” (DWI), in violation of N. M. Stat. Ann. 

§66–8–102 (2004). 
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 analysis. Pursuant to the warrant, a sample of Bullcoming’s

blood was drawn at a local hospital. To determine Bullcoming’s blood-alcohol concentration (BAC), the police 

sent the sample to the New Mexico Department of Health, 

Scientific Laboratory Division (SLD). In a standard SLD 

form titled “Report of Blood Alcohol Analysis,” participants in the testing were identified, and the forensic analyst certified his finding. App. 62.

SLD’s report contained in the top block “information . . .

filled in by [the] arresting officer.” Ibid. (capitalization

omitted). This information included the “reason [the]

suspect [was] stopped” (the officer checked “Accident”),

and the date (“8.14.05”) and time (“18:25 PM”) the blood 

sample was drawn. Ibid. (capitalization omitted). The 

arresting officer also affirmed that he had arrested Bullcoming and witnessed the blood draw. Ibid. The next two 

blocks contained certifications by the nurse who drew 

Bullcoming’s blood and the SLD intake employee who 

received the blood sample sent to the laboratory. Ibid. 

Following these segments, the report presented the 

“certificate of analyst,” ibid. (capitalization omitted), completed and signed by Curtis Caylor, the SLD forensic

analyst assigned to test Bullcoming’s blood sample. Id., at 

62, 64–65. Caylor recorded that the BAC in Bullcoming’s

sample was 0.21 grams per hundred milliliters, an inordinately high level. Id., at 62. Caylor also affirmed that

“[t]he seal of th[e] sample was received intact and broken

in the laboratory,” that “the statements in [the analyst’s

block of the report] are correct,” and that he had “followed 

the procedures set out on the reverse of th[e] report.” Ibid. 

Those “procedures” instructed analysts, inter alia, to “retai[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 “established procedure” for handling and analyzing Bullcoming’s

sample “ha[d] been followed.” Id., at 62 (capitalization

omitted).

SLD analysts use gas chromatograph machines to determine BAC levels. Operation of the machines requires 

specialized knowledge and training. Several steps are

involved in the gas chromatograph process, and human 

error can occur at each step.1 

—————— 

1Gas chromatography is a widely used scientific method of quantitatively analyzing the constituents of a mixture. See generally H.

McNair & J. Miller, Basic Gas Chromatography (2d ed. 2009) (hereinafter McNair). Under SLD’s standard testing protocol, the analyst extracts 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 reveal that the matter is not so simple or certain. “In order to perform 

quantitative analyses satisfactorily and . . . support the results under 

rigorous examination in court, the analyst must be aware of, and 

adhere to, good analytical practices and understand what is being done

and why.” Stafford, Chromatography, in Principles of Forensic Toxicology 92, 114 (B. Levine 2d ed. 2006). See also McNair 137 (“Errors that

occur in any step can invalidate the best chromatographic analysis, so

attention must be paid to all steps.”); D. Bartell, M. McMurray, & 

A. ImObersteg, Attacking and Defending Drunk Driving Tests §16:80 

(2d revision 2010) (stating that 93% of errors in laboratory tests for 

BAC levels are human errors that occur either before or after machines 

analyze samples). Even after the machine has produced its printed

result, a review of the chromatogram may indicate that the test was not 
Cite as: 564 U. S. ____ (2011) 5 

Opinion of the Court 

Caylor’s report that Bullcoming’s BAC was 0.21 supported a prosecution for aggravated DWI, the threshold for

which is a BAC of 0.16 grams per hundred milliliters, §66–

8–102(D)(1). The State accordingly charged Bullcoming 

with this more serious crime. 

B 

The case was tried to a jury in November 2005, after our 

decision in Crawford v. Washington, 541 U. S. 36 (2004), 

but before Melendez-Diaz. On the day of trial, the State

announced that it would not be calling SLD analyst Curtis 

Caylor as a witness because he had “very recently [been] 

put on unpaid leave” for a reason not revealed. 2010– 

NMSC–007, ¶8, 226 P. 3d 1, 6 (internal quotation marks 

omitted); App. 58. A startled defense counsel objected. 

The prosecution, she complained, had never disclosed,

until trial commenced, that the witness “out there . . . 

[was] not the analyst [of Bullcoming’s sample].” Id., at 46. 

Counsel stated that, “had [she] known that the analyst 

[who tested Bullcoming’s blood] was not available,” her 

opening, indeed, her entire defense “may very well have

been dramatically different.” Id., at 47. The State, however, proposed to introduce Caylor’s finding as a “business 

—————— 

valid. See McNair 207–214. 

Nor is the risk of human error so remote as to be negligible. Amici 

inform us, for example, that in neighboring Colorado, a single forensic 

laboratory produced at least 206 flawed blood-alcohol readings over a 

three-year span, prompting the dismissal of several criminal prosecutions. See Brief for National Association of Criminal Defense Lawyers 

et al. as Amici Curiae 32–33. An analyst had used improper amounts

of the internal standard, causing the chromatograph machine systematically to inflate BAC measurements. The analyst’s error, a supervisor said, was “fairly complex.” Ensslin, Final Tally on Flawed DUI: 

206 Errors, 9 Tossed or Reduced, Colorado Springs Gazette, Apr. 19,

2010, p. 1 (internal quotation marks omitted), available at http:// 

www.gazette.com/articles/report-97354-police-discuss.html. (All Internet materials as visited June 21, 2011, and included in Clerk of Court’s 

case file). 
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 confronted 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, concluding that “the blood alcohol report in the present case 

was non-testimonial and prepared routinely with guarantees of trustworthiness.” 2008–NMCA–097, §17, 189 P. 3d 

679, 685. 

C 

While Bullcoming’s appeal was pending before the New 

Mexico Supreme Court, this Court decided Melendez-Diaz. 

In that case, “[t]he Massachusetts courts [had] admitted 

into evidence affidavits reporting the results of forensic

analysis which showed that material seized by the police

and connected to the defendant was cocaine.” 557 U. S., at 

___ (slip op., at 1). Those affidavits, the Court held, were 

“‘testimonial,’ rendering the affiants ‘witnesses’ subject to 

—————— 

2The State called as witnesses the arresting officer and the nurse 

who drew Bullcoming’s blood. Bullcoming did not object to the State’s 

failure to call the SLD intake employee or the reviewing analyst. “It 

is up to the prosecution,” the Court observed in Melendez-Diaz v. Massachusetts, 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.” 3The 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 introduced at Bullcoming’s trial qualified as testimonial evidence. Like the affidavits in Melendez-Diaz, the court 

observed, the report was “functionally identical to live, incourt testimony, doing precisely what a witness does on

direct examination.” 226 P. 3d, at 8 (quoting MelendezDiaz, 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 generated by the gas chromatograph machine.” 226 P. 3d, 

at 8–9. Second, SLD analyst Razatos, although he did not

participate in testing Bullcoming’s blood, “qualified as 

an expert witness with respect to the gas chromatograph 

machine.” Id., at 9. “Razatos provided live, in-court testimony,” the court stated, “and, thus, was available for 

cross-examination regarding the operation of the . . . machine, the results of [Bullcoming’s] BAC test, and the

SLD’s established laboratory procedures.” Ibid. Razatos’ 

testimony was crucial, the court explained, because Bullcoming could not cross-examine the machine or the written report. Id., at 10. But “[Bullcoming’s] right of confrontation was preserved,” the court concluded, because 

Razatos was a qualified analyst, able to serve as a surrogate for Caylor. Ibid. 

We granted certiorari to address this question: Does the

Confrontation Clause permit the prosecution to introduce 

—————— 

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 certification, made in order to prove a fact at a criminal trial,

through the in-court testimony of an analyst who did not 

sign the certification or personally perform or observe the 

performance of the test reported in the certification. 561 

U. S. ___ (2010). Our answer is in line with controlling 

precedent: As a rule, if an out-of-court statement is testimonial in nature, it may not be introduced against the 

accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness. Because the New 

Mexico Supreme Court permitted the testimonial statement of one witness, i.e., Caylor, to enter into evidence 

through the in-court testimony of a second person, i.e., 

Razatos, we reverse that court’s judgment. 

II 

The Sixth Amendment’s Confrontation Clause confers 

upon the accused “[i]n all criminal prosecutions, . . . the

right . . . to be confronted with the witnesses against him.”

In a pathmarking 2004 decision, Crawford v. Washington, 

we overruled Ohio v. Roberts, 448 U. S. 56 (1980), which

had interpreted the Confrontation Clause to allow admission of absent witnesses’ testimonial statements based on 

a judicial determination of reliability. See Roberts, 448 

U. S., at 66. Rejecting Roberts’ “amorphous notions of ‘reliability,’” Crawford, 541 U. S., at 61, Crawford held 

that fidelity to the Confrontation Clause permitted admission of “[t]estimonial statements of witnesses absent from

trial . . . only where the declarant is unavailable, and only 

where the defendant has had a prior opportunity to crossexamine,” 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 evidence” 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 argument that the SLD report ranks as “nontestimonial,” and 

—————— 

5The dissent makes plain that its objection is less to the application

of the Court’s decisions in Crawford and Melendez-Diaz to this case 

than to those pathmarking decisions themselves. See post, at 5 (criticizing the “Crawford line of cases” for rejecting “reliable evidence”); 

post, at 8–9, 11 (deploring “Crawford’s rejection of the [reliabilitycentered] regime of Ohio v. Roberts”). 6To rank as “testimonial,” a statement must have a “primary purpose” of “establish[ing] or prov[ing] past events potentially relevant to

later criminal prosecution.” Davis v. Washington, 547 U. S. 813, 822 

(2006). See also Bryant, 562 U. S., at ___ (slip op., at 11). Elaborating

on the purpose for which a “testimonial report” is created, we observed

in Melendez-Diaz that business and public records “are generally 

admissible absent confrontation . . . because—having been created for

the administration of an entity’s affairs and not for the purpose of

establishing or proving some fact at trial—they are not testimonial.”

557 U. S., at ___ (slip op., at 18). 
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 testimony adequate to satisfy the Confrontation Clause in

this case because analyst Caylor “simply transcribed the 

resul[t] generated by the gas chromatograph machine,” 

presenting no interpretation and exercising no independent judgment. 226 P. 3d, at 8. Bullcoming’s “true ‘accuser,’” the court said, was the machine, while testing 

analyst Caylor’s role was that of “mere scrivener.” Id., at 

9. Caylor’s certification, however, reported more than a 

machine-generated number. See supra, at 3–4. 

Caylor certified that he received Bullcoming’s blood

sample intact with the seal unbroken, that he checked to 

make sure that the forensic report number and the sample

number “correspond[ed],” and that he performed on Bullcoming’s sample a particular test, adhering to a precise 

protocol. App. 62–65. He further represented, by leaving

the “[r]emarks” section of the report blank, that no “circumstance or condition . . . affect[ed] the integrity of the

sample or . . . the validity of the analysis.” Id., at 62, 65. 

These representations, relating to past events and human

actions not revealed in raw, machine-produced data, are

meet for cross-examination. 

The potential ramifications of the New Mexico Supreme 

Court’s reasoning, furthermore, raise red flags. Most witnesses, after all, testify to their observations of factual 

conditions or events, e.g., “the light was green,” “the hour 

was noon.” Such witnesses may record, on the spot, what

they observed. Suppose a police report recorded an objective fact—Bullcoming’s counsel posited the address above 

the front door of a house or the read-out of a radar gun. 

See Brief for Petitioner 35. Could an officer other than the 
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 deployed and the police department’s standard operating

procedures? As our precedent makes plain, the answer is

emphatically “No.” See Davis v. Washington, 547 U. S. 

813, 826 (2006) (Confrontation Clause may not be “evaded

by having a note-taking police[ officer] recite the . . . testimony of the declarant” (emphasis deleted)); MelendezDiaz, 557 U. S., at ___ (slip op., at 6) (KENNEDY, J., dissenting) (“The Court made clear in Davis that it will not 

permit the testimonial statement of one witness to enter 

into evidence through the in-court testimony of a second.”). 

The New Mexico Supreme Court stated that the number 

registered by the gas chromatograph machine called for

no interpretation or exercise of independent judgment on

Caylor’s part. 226 P. 3d, at 8–9. We have already explained that Caylor certified to more than a machinegenerated number. See supra, at 3–4. In any event, the 

comparative reliability of an analyst’s testimonial report

drawn from machine-produced data does not overcome the 

Sixth Amendment bar. This Court settled in Crawford 

that the “obviou[s] reliab[ility]” of a testimonial statement 

does not dispense with the Confrontation Clause. 541 

U. S., at 62; see id., at 61 (Clause “commands, not that

evidence be reliable, but that reliability be assessed in a

particular manner: by testing [the evidence] in the crucible of cross-examination”). Accordingly, the analysts who 

write reports that the prosecution introduces must be 

made available for confrontation even if they possess “the 

scientific acumen of Mme. Curie and the veracity of 

Mother Teresa.” Melendez-Diaz, 557 U. S., at ___, n. 6 

(slip op., at 14, n. 6). 

B 

Recognizing that admission of the blood-alcohol analysis 
12 BULLCOMING v. NEW MEXICO 

Opinion of the Court 

depended on “live, in-court testimony [by] a qualified analyst,” 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 laboratory 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 Significant here, Razatos had no knowledge of the reason why 

Caylor had been placed on unpaid leave. With Caylor on 

the stand, Bullcoming’s counsel could have asked questions designed to reveal whether incompetence, evasiveness, or dishonesty accounted for Caylor’s removal from

his work station. Notable in this regard, the State never 

asserted that Caylor was “unavailable”; the prosecution

conveyed only that Caylor was on uncompensated leave.

Nor did the State assert that Razatos had any “independent opinion” concerning Bullcoming’s BAC. See Brief for 

Respondent 58, n. 15. In this light, Caylor’s live testimony

could hardly be typed “a hollow formality,” post, at 4. 

More fundamentally, as this Court stressed in Crawford, “[t]he text of the Sixth Amendment does not sug­

—————— 

7We do not question that analyst Caylor, in common with other analysts employed by SLD, likely would not recall a particular test, given 

the number of tests each analyst conducts and the standard procedure

followed in testing. Even so, Caylor’s testimony under oath would have

enabled Bullcoming’s counsel to raise before a jury questions concerning Caylor’s proficiency, the care he took in performing his work, and 

his veracity. In particular, Bullcoming’s counsel likely would have 

inquired on cross-examination why Caylor had been placed on unpaid

leave. 8At 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 requirement to be developed by the courts.” 541 U. S., at 54. 

Nor is it “the role of courts to extrapolate from the words 

of the [Confrontation Clause] to the values behind it, and 

then to enforce its guarantees only to the extent they serve

(in the courts’ views) those underlying values.” Giles v. 

California, 554 U. S. 353, 375 (2008). Accordingly, the

Clause does not tolerate dispensing with confrontation 

simply because the court believes that questioning one 

witness about another’s testimonial statements provides a 

fair enough opportunity for cross-examination.

A recent decision involving another Sixth Amendment

right—the right to counsel—is instructive. In United 

States v. Gonzalez-Lopez, 548 U. S. 140 (2006), the Government argued that illegitimately denying a defendant 

his counsel of choice did not violate the Sixth Amendment where “substitute counsel’s performance” did not

demonstrably prejudice the defendant. Id., at 144–145. 

This Court rejected the Government’s argument. “[T]rue 

enough,” the Court explained, “the purpose of the rights

set forth in [the Sixth] Amendment is to ensure a fair

trial; but it does not follow that the rights can be disregarded so long as the trial is, on the whole, fair.” Id., at 

145. If a “particular guarantee” of the Sixth Amendment 

is violated, no substitute procedure can cure the violation,

and “[n]o additional showing of prejudice is required to

make the violation ‘complete.’” Id., at 146. If representation 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 character, therefore no Confrontation Clause question even

arises in this case. Melendez-Diaz left no room for that 

argument, the New Mexico Supreme Court concluded,

see 226 P. 3d, at 7–8; supra, at 7, a conclusion we find 

inescapable.

In Melendez-Diaz, a state forensic laboratory, on police

request, analyzed seized evidence (plastic bags) and reported the laboratory’s analysis to the police (the substance found in the bags contained cocaine). 557 U. S., at 

___ (slip op., at 2). The “certificates of analysis” prepared 

by the analysts who tested the evidence in Melendez-Diaz, 

this Court held, were “incontrovertibly . . . affirmation[s] 

made for the purpose of establishing or proving some fact” 

in a criminal proceeding. Id., at ___ (slip op., at 4) (internal quotation marks omitted). The same purpose was

served by the certificate in question here. 

The State maintains that the affirmations made by

analyst Caylor were not “adversarial” or “inquisitorial,” 

Brief for Respondent 27–33; instead, they were simply 

observations of an “independent scientis[t]” made “according to a non-adversarial public duty,” id., at 32–33. That 

argument fares no better here than it did in MelendezDiaz. A document created solely for an “evidentiary purpose,” Melendez-Diaz clarified, made in aid of a police 

investigation, ranks as testimonial. 557 U. S., at ___ (slip 

op., at 5) (forensic reports available for use at trial are

“testimonial statements” and certifying analyst is a 

“‘witness’ for purposes of the Sixth Amendment”).

Distinguishing Bullcoming’s case from Melendez-Diaz, 

where the analysts’ findings were contained in certificates 

“sworn to before a notary public,” id., at ___ (slip op., at 2), 
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 testimonial.” 226 P. 3d, at 8 (quoting Crawford, 541 U. S., at 52). 

Indeed, in Crawford, this Court rejected as untenable any

construction of the Confrontation Clause that would render inadmissible only sworn ex parte affidavits, while 

leaving admission of formal, but unsworn statements

“perfectly OK.” Id., at 52–53, n. 3. Reading the Clause in

this “implausible” manner, ibid., the Court noted, would 

make the right to confrontation easily erasable. See 

Davis, 547 U. S., at 830–831, n. 5; id., at 838 (THOMAS, J., 

concurring in judgment in part and dissenting in part). 

In all material respects, the laboratory report in this

case resembles those in Melendez-Diaz. Here, as in 

Melendez-Diaz, a law-enforcement officer provided seized

evidence to a state laboratory required by law to assist in

police investigations, N. M. Stat. Ann. §29–3–4 (2004). 

Like the analysts in Melendez-Diaz, analyst Caylor tested 

the evidence and prepared a certificate concerning the

result of his analysis. App. 62. Like the Melendez-Diaz 

certificates, Caylor’s certificate is “formalized” in a signed 

document, Davis, 547 U. S., at 837, n. 2 (opinion of 

THOMAS, J.), headed a “report,” App. 62. Noteworthy as

well, the SLD report form contains a legend referring to

municipal and magistrate courts’ rules that provide for the 

admission of certified blood-alcohol analyses. 

In sum, the formalities attending the “report of blood 

alcohol analysis” are more than adequate to qualify Caylor’s assertions as testimonial. The absence of notarization does not remove his certification from Confrontation 

Clause governance. The New Mexico Supreme Court,

guided by Melendez-Diaz, correctly recognized that Cay­
Opinion of the Court 

16 BULLCOMING v. NEW MEXICO 

Opinion of GINSBURG, J. 

lor’s report “fell within the core class of testimonial statements” 226 P. 3d, at 7, described in this Court’s leading

Confrontation Clause decisions: Melendez-Diaz, 557 U. S., 

at ___ (slip op., at 4); Davis, 547 U. S., at 830; Crawford, 

541 U. S., at 51–52. 

IV 

The State and its amici urge that unbending application of the Confrontation Clause to forensic evidence would 

impose an undue burden on the prosecution. This argument, also advanced in the dissent, post, at 10–11, largely 

repeats a refrain rehearsed and rejected in Melendez-Diaz. 

See 557 U. S., at ___–___ (slip op., at 19–23). The constitutional requirement, we reiterate, “may not [be] disregard[ed] . . . at our convenience,” id., at ___ (slip op., at

19), and the predictions of dire consequences, we again

observe, are dubious, see id., at ___ (slip op., at 19–20). 

New Mexico law, it bears emphasis, requires the 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 http://www.nmcpr.state.nm.us/nmac/

_title07/T07C033.htm, and neither party questions SLD’s

compliance with that requirement. Retesting “is almost

always an option . . . in [DWI] cases,” Brief for Public

Defender Service for District of Columbia et al. as Amici 

Curiae 25 (hereinafter PDS Brief), and the State had that

option here: New Mexico could have avoided any Confrontation Clause problem by asking Razatos to retest the

sample, and then testify to the results of his retest rather

than to the results of a test he did not conduct or observe. 

Notably, New Mexico advocates retesting as an effective

means to preserve a defendant’s confrontation right “when

the [out-of-court] statement is raw data or a mere transcription of raw data onto a public record.” Brief for Respondent 53–54. But the State would require the defendant to initiate retesting. Id., at 55; post, at 4 (defense 
Opinion of the Court 

Cite as: 564 U. S. ____ (2011) 17 

Opinion of GINSBURG, J. 

“remains free to . . . . call and examine the technician who 

performed a test”), post, at 8 (“free retesting” is available

to defendants). The prosecution, however, bears the burden of proof. Melendez-Diaz, 557 U. S., at ___ (slip op., at 

19) (“[T]he Confrontation Clause imposes a burden on the 

prosecution to present its witnesses, not on the defendant 

to bring those adverse witnesses into court.”). Hence the 

obligation to propel retesting when the original analyst is 

unavailable is the State’s, not the defendant’s. See Taylor 

v. Illinois, 484 U. S. 400, 410, n. 14 (1988) (Confrontation

Clause’s requirements apply “in every case, whether or not 

the defendant seeks to rebut the case against him or to

present a case of his own”). 

Furthermore, notice-and-demand procedures, long in effect in many jurisdictions, can reduce burdens on forensic 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 MelendezDiaz, 557 U. S., at ___ (slip op., at 20) (observing that

notice-and-demand statutes “permit the defendant to

assert (or forfeit by silence) his Confrontation Clause right 

after receiving notice of the prosecution’s intent to use a

forensic analyst’s report”). 

Even before this Court’s decision in Crawford, moreover, 

it was common prosecutorial practice to call the forensic 

analyst to testify. Prosecutors did so “to bolster the persuasive power of [the State’s] case[,] . . . [even] when the 

defense would have preferred that the analyst did not 

testify.” PDS Brief 8. 

We note also the “small fraction of . . . cases” that “actually proceed to trial.” Melendez-Diaz, 557 U. S., at ___ 

(slip op., at 20) (citing estimate that “nearly 95% of convictions in state and federal courts are obtained via guilty

plea”). And, “when cases in which forensic analysis has 
Opinion of the Court 

18 BULLCOMING v. NEW MEXICO 

Opinion of GINSBURG, J. 

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 [acknowledged] job of . . . analysts to testify in court . . . about their 

test results,” the sky has not fallen. PDS Brief 23. State 

and municipal laboratories “make operational and staffing 

decisions” to facilitate analysts’ appearance at trial. Ibid. 

Prosecutors schedule trial dates to accommodate analysts’ 

availability, and trial courts liberally grant continuances 

when unexpected conflicts arise. Id., at 24–25. In rare 

cases in which the analyst is no longer employed by the 

laboratory at the time of trial, “the prosecution makes the 

effort to bring that analyst . . . to court.” Id., at 25. And, 

as is the practice in New Mexico, see supra, at 16, laboratories ordinarily retain additional samples, enabling them 

to run tests again when necessary.10 

—————— 

9The dissent argues otherwise, reporting a 71% increase, from 2008

to 2010, in the number of subpoenas for New Mexico analysts’ testimony in impaired-driving cases. Post, at 11. The dissent is silent, 

however, on the number of instances in which subpoenaed analysts in

fact testify, i.e., the figure that would reveal the actual burden of

courtroom testimony. Moreover, New Mexico’s Department of Health, 

Scientific Laboratory Division, has attributed the “chaotic” conditions

noted by the dissent, ibid., to several favors, among them, staff attrition, a state hiring freeze, a 15% increase in the number of blood

samples received for testing, and “wildly” divergent responses by New

Mexico District Attorneys to Melendez-Diaz. Brief for State of New 

Mexico Dept. of Health, SLD as Amicus Curiae 2–5. Some New Mexico 

District Attorneys’ offices, we are informed, “subpoen[a] every analyst 

with any connection to a blood sample,” id., at 5, an exorbitant practice

that undoubtedly inflates the number of subpoenas issued. 10The 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). 11As 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 question of whether a scientific report is testimonial. As the

Court explains, ante, at 14–15, in Melendez-Diaz v. Massachusetts, 557 U. S. ___ (2009), we held that “certificates 
2 BULLCOMING v. NEW MEXICO 

SOTOMAYOR, J., concurring in part 

of analysis,” completed by employees of the State Laboratory Institute of the Massachusetts Department of Public

Health, id., at ___ (slip op., at 2), were testimonial because

they were “incontrovertibly . . . ‘“solemn declaration[s] or 

affirmation[s] made for the purpose of establishing or

proving some fact,”’” id., at ___ (slip op., at 4) (quoting 

Crawford v. Washington, 541 U. S. 36, 51 (2004), in turn

quoting 2 N. Webster, An American Dictionary of the 

English Language (1828)).

As we explained earlier this Term in Michigan v. Bryant, 562 U. S. ___ (2010), “[i]n making the primary purpose determination, standard rules of hearsay . . . will be

relevant.” Id., at ___ (slip op., at 11–12).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. Relatedly, in the Confrontation Clause context, business

and public records “are generally admissible absent confrontation . . . because—having been created for the administration of an entity’s affairs and not for the purpose

of establishing or proving some fact at trial—they are not 

testimonial.” Melendez-Diaz, 557 U. S., at ___ (slip op., at 

18). We concluded, therefore, that because the purpose of

the certificates of analysis was use at trial, they were not 

—————— 

1Contrary to the dissent’s characterization, Bryant deemed reliability, as reflected in the hearsay rules, to be “relevant,” 562 U. S., at ___ 

(slip op., at 11–12), not “essential,” post, at 5 (opinion of KENNEDY, J.). 

The rules of evidence, not the Confrontation Clause, are designed

primarily to police reliability; the purpose of the Confrontation Clause

is to determine whether statements are testimonial and therefore require 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 decision that the certificates were testimonial under the primary purpose analysis required by the Confrontation

Clause. See id., at ___ (slip op., at 5) (explaining that 

under Massachusetts law not just the purpose but the

“sole purpose of the affidavits was to provide” evidence).

Similarly, in this case, for the reasons the Court sets

forth the BAC report and Caylor’s certification on it

clearly have a “primary purpose of creating an out-of-court

substitute for trial testimony.” Bryant, 562 U. S., at ___ 

(slip op., at 11). The Court also explains why the BAC 

report is not materially distinguishable from the certificates we held testimonial in Melendez-Diaz. See 557 U. S., 

at ___ (slip op., at 2, 4–5). 2 

The formality inherent in the certification further suggests its evidentiary purpose. Although “[f]ormality is not

the sole touchstone of our primary purpose inquiry,” a

statement’s formality or informality can shed light on 

whether a particular statement has a primary purpose

of use at trial. Bryant, 562 U. S., at ___ (slip op., at 19). 3 

—————— 

2This 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). 3By looking to the formality of a statement, we do not “trea[t] the 

reliability of evidence as a reason to exclude it.” Post, at 5 (KENNEDY, J., 

dissenting). Although in some instances formality could signal reliability, the dissent’s argument fails to appreciate that, under our Confrontation Clause precedents, formality is primarily an indicator of 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 admission was permissible under the Confrontation Clause for 

two reasons: because Caylor was a “mere scrivener,” and 

because Razatos could be cross-examined on the workings

of the gas chromatograph and laboratory procedures. 226 

P. 3d, at 8–10. The Court convincingly explains why those 

—————— 

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 explained in Bryant, informality, on the other hand, “does not necessarily

indicate . . . lack of testimonial intent.” 562 U. S., at ___ (slip op., at 

19). The dissent itself recognizes the relevance of formality to the

testimonial inquiry when it notes the formality of the problematic 

unconfronted statements in Sir Walter Raleigh’s trial. Post, at 7–8 

(opinion of KENNEDY, J.). 
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 purpose, for the BAC report. For example, the State has not 

claimed that the report was necessary to provide Bullcoming with medical treatment. See Bryant, 562 U. S., at ___ , 

n. 9 (slip op., at 15, n. 9) (listing “Statements for Purposes

of Medical Diagnosis or Treatment” under Federal Rule of 

Evidence 803(4) as an example of statements that are 

“by their nature, made for a purpose other than use in a

prosecution”); Melendez-Diaz, 557 U. S., at ___, n. 2 (slip

op., at 6, n. 2) (“[M]edical reports created for treatment

purposes . . . would not be testimonial under our decision 

today”); Giles v. California, 554 U. S. 353, 376 (2008) 

(“[S]tatements to physicians in the course of receiving

treatment would be excluded, if at all, only by hearsay 

rules”).

Second, this is not a case in which the person testifying

is a supervisor, reviewer, or someone else with a personal, 

albeit limited, connection to the scientific test at issue. 

Razatos conceded on cross-examination that he played no 

role in producing the BAC report and did not observe any

portion of Curtis Caylor’s conduct of the testing. App. 58. 

The court below also recognized Razatos’ total lack of

connection to the test at issue. 226 P. 3d, at 6. It would 

be a different case if, for example, a supervisor who observed an analyst conducting a test testified about the 

results or a report about such results. We need not 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 relevant test and report. 

Third, this is not a case in which an expert witness was

asked for his independent opinion about underlying testimonial reports that were not themselves admitted into

evidence. See Fed. Rule Evid. 703 (explaining that facts or

data of a type upon which experts in the field would reasonably rely in forming an opinion need not be admissible 

in order for the expert’s opinion based on the facts and 

data to be admitted). As the Court notes, ante, at 12, the 

State does not assert that Razatos offered an independent, 

expert opinion about Bullcoming’s blood alcohol concentration. Rather, the State explains, “[a]side from reading a 

report that was introduced as an exhibit, Mr. Razatos 

offered no opinion about Petitioner’s blood alcohol content 

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

Here the State offered the BAC report, including Caylor’s

testimonial statements, into evidence. We would face a 

different question if asked to determine the constitutionality of allowing an expert witness to discuss others’ testimonial statements if the testimonial statements were not 

themselves admitted as evidence. 

Finally, this is not a case in which the State introduced

only machine-generated results, such as a printout from a

gas chromatograph. The State here introduced Caylor’s

statements, which included his transcription of a blood

alcohol concentration, apparently copied from a gas chromatograph printout, along with other statements about 

the procedures used in handling the blood sample. See 

ante, at 10; App. 62 (“I certify that I followed the procedures set out on the reverse of this report, and the statements in this block are correct”). Thus, we do not decide 

whether, as the New Mexico Supreme Court suggests, 226 

P. 3d, at 10, a State could introduce (assuming an adequate chain of custody foundation) raw data generated by 
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 testimonial, 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 arising from a state criminal prosecution, the Court interpreted the Clause to mandate exclusion of a laboratory 

report sought to be introduced based on the authority of 

that report’s own sworn statement that a test had been

performed yielding the results as shown. Melendez-Diaz v. 

Massachusetts, 557 U. S. ___ (2009). The Court’s opinion 

in that case held the report inadmissible because no one 

was present at trial to testify to its contents. 

Whether or not one agrees with the reasoning and the 

result in Melendez-Diaz, the Court today takes the new

and serious misstep of extending that holding to instances

like this one. Here a knowledgeable representative of the 

laboratory was present to testify and to explain the lab’s 

processes and the details of the report; but because he was

not the analyst who filled out part of the form and transcribed onto it the test result from a machine printout, the

Court finds a confrontation violation. Some of the principal objections to the Court’s underlying theory have been

set out earlier and need not be repeated here. See id., at 

___ (KENNEDY, J., dissenting). Additional reasons, 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 Confrontation Clause bars admission of scientific findings when

an employee of the testing laboratory authenticates the 

findings, testifies to the laboratory’s methods and practices, and is cross-examined at trial. Far from replacing

live testimony with “systematic” and “extrajudicial” examinations, Davis v. Washington, 547 U. S. 813, 835, 836 

(2006) (THOMAS, J., concurring in judgment in part and 

dissenting in part) (emphasis deleted and internal quotation marks omitted), these procedures are fully consistent 

with the Confrontation Clause and with well-established 

principles for ensuring that criminal trials are conducted

in full accord with requirements of fairness and reliability

and with the confrontation guarantee. They do not “resemble Marian proceedings.” Id., at 837. 

The procedures followed here, but now invalidated by

the Court, make live testimony rather than the “solemnity” of a document the primary reason to credit the laboratory’s scientific results. Id., at 838. Unlike MelendezDiaz, where the jury was asked to credit a laboratory’s findings based solely on documents that were 

“quite plainly affidavits,” 557 U. S., at ___ (slip op., at 1) 

(THOMAS, J., concurring) (internal quotation marks omitted), here the signature, heading, or legend on the document were routine authentication elements for a report 

that would be assessed and explained by in-court testimony subject to full cross-examination. The only sworn

statement at issue was that of the witness who was present and who testified. 

The record reveals that the certifying analyst’s role here 

was no greater than that of anyone else in the chain of 
Cite as: 564 U. S. ____ (2011) 3 

KENNEDY, J., dissenting 

custody. App. 56 (laboratory employee’s testimony agreeing that “once the material is prepared and placed in the

machine, you don’t need any particular expertise to record

the results”). The information contained in the report was 

the result of a scientific process comprising multiple participants’ acts, each with its own evidentiary significance. 

These acts included receipt of the sample at the laboratory; recording its receipt; storing it; placing the sample 

into the testing device; transposing the printout of the

results of the test onto the report; and review of the results. See Id., at 48–56; see also Brief for State of New 

Mexico Dept. of Health Scientific Laboratory Division as 

Amicus Curiae 4 (hereinafter New Mexico Scientific Laboratory Brief) (“Each blood sample has original testing

work by . . . as many as seve[n] analysts . . . .”); App. 62

(indicating that this case involved three laboratory analysts who, respectively, received, analyzed, and reviewed

analysis of the sample); cf. Brief for State of Indiana et al. 

as Amici Curiae in Briscoe v. Virginia, O. T. 2009, No. 07– 

11191, p. 10 (hereinafter Indiana Brief) (explaining that 

DNA analysis can involve the combined efforts of up to 40

analysts).

In the New Mexico scientific laboratory where the blood

sample was processed, analyses are run in batches involving 40–60 samples. Each sample is identified by a computer-generated number that is not linked back to the file

containing the name of the person from whom the sample 

came until after all testing is completed. See New Mexico 

Scientific Laboratory Brief 26. The analysis is mechanically performed by the gas chromatograph, which may

operate—as in this case—after all the laboratory employees leave for the day. See id., at 17. And whatever the 

result, it is reported to both law enforcement and the 

defense. See id., at 36. 

The representative of the testing laboratory whom the 

prosecution called was a scientific analyst named Mr. 
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 opportunity in cross-examination to highlight the absence at trial

of certain laboratory employees. Under questioning by 

Bullcoming’s attorney, Razatos acknowledged that his 

name did not appear on the report; that he did not receive 

the sample, perform the analysis, or complete the review;

and that he did not know the reason for some personnel 

decisions. App. 58. After weighing arguments from defense counsel concerning these admissions, and after considering the testimony of Mr. Razatos, who knew the

laboratory’s protocols and processes, the jury found no 

reasonable doubt as to the defendant’s guilt. 

In these circumstances, requiring the State to call the

technician who filled out a form and recorded the results 

of a test is a hollow formality. The defense remains free to 

challenge any and all forensic evidence. It may call and 

examine the technician who performed a test. And it may

call other expert witnesses to explain that tests are not

always reliable or that the technician might have made a

mistake. The jury can then decide whether to credit the

test, as it did here. The States, furthermore, can assess 

the progress of scientific testing and enact or adopt statutes and rules to ensure that only reliable evidence is

admitted. Rejecting these commonsense arguments and 

the concept that reliability is a legitimate concern, the

Court today takes a different course. It once more assumes for itself a central role in mandating detailed evidentiary rules, thereby extending and confirming 

Melendez-Diaz’s “vast potential to disrupt criminal procedures.” 557 U. S., at ___ (slip op., at 3) (KENNEDY, J., 
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 confrontation context, reliability was an essential part of the constitutional inquiry. See Michigan v. Bryant, 562 U. S. ___, 

___–___, ___–___ (2010) (slip op., at 11–12, 14–15). 

Like reliability, other principles have weaved in and out 

of the Crawford jurisprudence. Solemnity has sometimes

been dispositive, see Melendez-Diaz, 557 U. S., at ___ (slip 

op., at 6); id., at ___ (slip op., at 1) (THOMAS, J., concurring), and sometimes not, see Davis, 547 U. S., at 834–837, 

841 (THOMAS, J., concurring in judgment in part and 

dissenting in part). So, too, with the elusive distinction 

between utterances aimed at proving past events, and 

those calculated to help police keep the peace. Compare 

Davis, supra, and Bryant, 562 U. S., at ___–___ (slip op., at

24–30), with id., at ___–___ (slip op., at 5–9) (SCALIA, J., 

dissenting).

It is not even clear which witnesses’ testimony could 
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 analysts” themselves. 557 U. S., at ___ (slip op., at 5) (internal quotation marks omitted). Now, the Court reveals, 

this rule is either less clear than it first appeared or too 

strict to be followed. A report is admissible, today’s opinion states, if a “live witness competent to testify to the

truth of the statements made in the report” appears. Ante, 

at 1. Such witnesses include not just the certifying analyst, but also any “scientist who . . . perform[ed] or observe[d] the test reported in the certification.” Ante, at 2. 

Today’s majority is not committed in equal shares to a

common set of principles in applying the holding of Crawford. Compare Davis, supra (opinion for the Court by 

SCALIA, J.), with id., at 834 (THOMAS, J., concurring in

judgment in part and dissenting in part); and Bryant, 

supra, (opinion for the Court by SOTOMAYOR, J.), with id., 

at ___ (THOMAS, J., concurring in judgment), and id., at 

___ (SCALIA, J., dissenting), and id., at ___ (GINSBURG, J., 

dissenting); and ante, at ___ (slip op., at 1) (opinion of the 

Court), with ante, at ___ (slip op., at 1) (SOTOMAYOR, J., 

concurring). That the Court in the wake of Crawford has 

had such trouble fashioning a clear vision of that case’s 

meaning is unsettling; for Crawford binds every judge in

every criminal trial in every local, state, and federal court

in the Nation. This Court’s prior decisions leave trial

judges to “guess what future rules this Court will distill 

from the sparse constitutional text,” Melendez-Diaz, supra, 

at ___ (slip op., at 2) (KENNEDY, J., dissenting), or to struggle to apply an “amorphous, if not entirely subjective,” 

“highly context-dependent inquiry” involving “open-ended 

balancing.” Bryant, supra, at ___ (slip op., at 15–16) 

(SCALIA, J., dissenting) (internal quotation marks omitted) 

(listing 11 factors relevant under the majority’s approach). 
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 applications. Procedures involving multiple participants illustrate the problem. In Melendez-Diaz the Court insisted 

that its opinion did not require everyone in the chain of 

custody to testify but then qualified that “what testimony 

is introduced must . . . be introduced live.” 557 U. S., 

at ___, n. 1 (slip op., at 5, n. 1); ante, at 6, n. 2. This 

could mean that a statement that evidence remained in 

law-enforcement custody is admissible if the statement’s 

maker appears in court. If so, an intern at police headquarters could review the evidence log, declare that chain

of custody was retained, and so testify. The rule could also 

be that that the intern’s statement—which draws on 

statements in the evidence log—is inadmissible unless 

every officer who signed the log appears at trial. That 

rule, if applied to this case, would have conditioned admissibility of the report on the testimony of three or more

identified witnesses. See App. 62. In other instances, 7 or 

even 40 witnesses could be required. See supra, at 3. The 

court has thus—in its fidelity to Melendez-Diaz—boxed 

itself into a choice of evils: render the Confrontation 

Clause pro forma or construe it so that its dictates are

unworkable. 

III 

Crawford itself does not compel today’s conclusion. It 

is true, as Crawford confirmed, that the Confrontation 

Clause seeks in part to bar the government from replicating trial procedures outside of public view. See 541 U. S., 

at 50; Bryant, supra, at ___ (slip op., at 11–12). Crawford 

explained that the basic purpose of the Clause was to

address the sort of abuses exemplified at the notorious

treason trial of Sir Walter Raleigh. 541 U. S., at 51. On 

this view the Clause operates to bar admission of out-ofcourt statements obtained through formal interrogation in 
8 BULLCOMING v. NEW MEXICO 

KENNEDY, J., dissenting 

preparation for trial. The danger is that innocent defendants may be convicted on the basis of unreliable, untested statements by those who observed—or claimed to

have observed—preparation for or commission of the 

crime. And, of course, those statements might not have 

been uttered at all or—even if spoken—might not have

been true. 

A rule that bars testimony of that sort, however, provides neither cause nor necessity to impose a constitutional bar on the admission of impartial lab reports like

the instant one, reports prepared by experienced technicians in laboratories that follow professional norms and 

scientific protocols. In addition to the constitutional right

to call witnesses in his own defense, the defendant in this 

case was already protected by checks on potential prosecutorial abuse such as free retesting for defendants; resultblind issuance of reports; testing by an independent

agency; routine processes performed en masse, which 

reduce opportunities for targeted bias; and labs operating 

pursuant to scientific and professional norms and oversight. See Brief for Respondent 5, 14–15, 41, 54; New 

Mexico Scientific Laboratory Brief 2, 26. 

In addition to preventing the State from conducting ex 

parte trials, Crawford’s rejection of the regime of Ohio v. 

Roberts, 448 U. S. 56 (1980), seemed to have two underlying jurisprudential objectives. One was to delink the 

intricacies of hearsay law from a constitutional mandate;

and the other was to allow the States, in their own courts 

and legislatures and without this Court’s supervision, to

explore and develop sensible, specific evidentiary rules 

pertaining to the admissibility of certain statements. 

These results were to be welcomed, for this Court lacks 

the experience and day-to-day familiarity with the trial 

process to suit it well to assume the role of national tribunal for rules of evidence. Yet far from pursuing these

objectives, the Court rejects them in favor of their 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 hearsay rules in their earliest, most rigid, and least refined

formulations. See, e.g., Mosteller, Remaking Confrontation Clause and Hearsay Doctrine Under the Challenge

of Child Sexual Abuse Prosecutions, 1993 U. Ill. L. Rev. 

691, 739–740, 742, 744–746; Gallanis, The Rise of Modern 

Evidence Law, 84 Iowa L. Rev. 499, 502–503, 514–515, 

533–537 (1999). In cases like Melendez-Diaz and this one, 

the Court has tied the Confrontation Clause to 18th century hearsay rules unleavened by principles tending to

make those rules more sensible. Sklansky, Hearsay’s Last

Hurrah, 2009 S. Ct. Rev. 1, 5–6, 36. As a result, the Court 

has taken the Clause far beyond its most important application, which is to forbid sworn, ex parte, out-of-court 

statements by unconfronted and available witnesses who 

observed the crime and do not appear at trial.

Second, the States are not just at risk of having some of 

their hearsay rules reviewed by this Court. They often are

foreclosed now from contributing to the formulation and

enactment of rules that make trials fairer and more reliable. For instance, recent state laws allowing admission 

of well-documented and supported reports of abuse by

women whose abusers later murdered them must give

way, unless that abuser murdered with the specific purpose of foreclosing the testimony. Giles v. California, 554 

U. S. 353 (2008); Sklansky, supra, at 14–15. Whether 

those statutes could provide sufficient indicia of reliability 

and other safeguards to comply with the Confrontation 

Clause as it should be understood is, to be sure, an open

question. The point is that the States cannot now participate in the development of this difficult part of the law. 

In short, there is an ongoing, continued, and systemic

displacement of the States and dislocation of the federal 

structure. Cf. Melendez-Diaz, supra, at ___, ___, ___ (slip 
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 offered by the prosecution—testimony thought proper for

many decades in state and federal courts committed to

devising fair trial processes—then the States might find it 

necessary and appropriate to enact statutes to accommodate this new, intrusive federal regime. If they do, those

rules could remain on State statute books for decades, 

even if subsequent decisions of this Court were to better 

implement the objectives of Crawford. This underscores 

the disruptive, long-term structural consequences of decisions like the one the Court announces today. 

States also may decide it is proper and appropriate to

enact statutes that require defense counsel to give advance notice if they are going to object to introduction of a

report without the presence in court of the technician who 

prepared it. Indeed, today’s opinion relies upon laws of

that sort as a palliative to the disruption it is causing. 

Ante, at 17 (plurality opinion). It is quite unrealistic,

however, to think that this will take away from the defense the incentives to insist on having the certifying 

analyst present. There is in the ordinary case that proceeds to trial no good reason for defense counsel to waive

the right of confrontation as the Court now interprets it. 

Today’s opinion repeats an assertion from 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 appearances during a 1-year period); Brief for National District

Attorneys Assocation et al. as Amici Curiae 23 (observing

that each blood-alcohol analyst in California processes 

3,220 cases per year on average). New and more rigorous 

empirical studies further detailing the unfortunate effects 
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 requiring New Mexico analysts to testify in impaired-driving

cases rose 71%, to 1,600—or 8 or 9 every workday. New 

Mexico Scientific Laboratory Brief 2. In a State that is the 

Nation’s fifth largest by area and that employs just 10

total analysts, id., at 3, each analyst in blood alcohol cases

recently received 200 subpoenas per year, id., at 33. The 

analysts now must travel great distances on most working 

days. The result has been, in the laboratory’s words,

“chaotic.” Id., at 5. And if the defense raises an objection 

and the analyst is tied up in another court proceeding; or 

on leave; or absent; or delayed in transit; or no longer 

employed; or ill; or no longer living, the defense gets a 

windfall. As a result, good defense attorneys will object in

ever-greater numbers to a prosecution failure or inability 

to produce laboratory analysts at trial. The concomitant 

increases in subpoenas will further impede the state laboratory’s ability to keep pace with its obligations. Scarce 

state resources could be committed to other urgent needs

in the criminal justice system. 

* * * 

Seven years after its initiation, it bears remembering 

that the Crawford approach was not preordained. This 

Court’s missteps have produced an interpretation of the 

word “witness” at odds with its meaning elsewhere in the

Constitution, including elsewhere in the Sixth Amendment, see Amar, Sixth Amendment First Principles, 84

Geo. L. J. 641, 647, 691–696 (1996), and at odds with

the sound administration of justice. It is time to return 

to solid ground. A proper place to begin that return is to 

decline to extend Melendez-Diaz to bar the reliable, commonsense evidentiary framework the State sought to 

follow in this case.