BULLCOMING v. NEW MEXICO

Opinion of the Court

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preliminary print of the United States Reports. Readers are requested to
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SUPREME COURT OF THE UNITED STATES
_________________

No. 09–10876

_________________

DONALD BULLCOMING, PETITIONER v. NEW

MEXICO

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

NEW MEXICO

[June 23, 2011]

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

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

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

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

I

A

In August 2005, a vehicle driven by petitioner Donald Bullcoming rear-ended a pick-up truck at an intersection in Farmington, New Mexico. When the truckdriver exited his vehicle and approached Bullcoming to exchange insur ­ ance information, he noticed that Bullcoming’s eyes were bloodshot. Smelling alcohol on Bullcoming’s breath, the truckdriver told his wife to call the police. Bullcoming left the scene before the police arrived, but was soon appre ­ hended by an officer who observed his performance of field sobriety tests. Upon failing the tests, Bullcoming was arrested for driving a vehicle while “under the influence of intoxicating liquor” (DWI), in violation of N. M. Stat. Ann. §66–8–102 (2004). Because Bullcoming refused to take a breath test, the police obtained a warrant authorizing a blood-alcohol analy­ sis. Pursuant to the warrant, a sample of Bullcoming’s blood was drawn at a local hospital. To determine Bull ­ coming’s blood-alcohol concentration (BAC), the police sent the sample to the New Mexico Department of Health, Scientific Laboratory Division (SLD). In a standard SLD form titled “Report of Blood Alcohol Analysis,” partici ­ pants in the testing were identified, and the forensic ana ­ lyst certified his finding. App. 62.

SLD’s report contained in the top block “information . . . filled in by [the] arresting officer.” Ibid. (capitalization omitted). This information included the “reason [the] suspect [was] stopped” (the officer checked “Accident”), and the date (“8.14.05”) and time (“18:25 PM”) the blood sample was drawn. Ibid. (capitalization omitted). The arresting officer also affirmed that he had arrested Bull ­ coming and witnessed the blood draw. Ibid. The next two blocks contained certifications by the nurse who drew Bullcoming’s blood and the SLD intake employee who received the blood sample sent to the laboratory. Ibid.

Following these segments, the report presented the “certificate of analyst,” ibid. (capitalization omitted), com ­ pleted and signed by Curtis Caylor, the SLD forensic analyst assigned to test Bullcoming’s blood sample. Id., at 62, 64–65. Caylor recorded that the BAC in Bullcoming’s sample was 0.21 grams per hundred milliliters, an inordi ­ nately high level. Id., at 62. Caylor also affirmed that “[t]he seal of th[e] sample was received intact and broken in the laboratory,” that “the statements in [the analyst’s block of the report] are correct,” and that he had “followed the procedures set out on the reverse of th[e] report.” Ibid. Those “procedures” instructed analysts, inter alia, to “re ­ tai[n] the sample container and the raw data from the analysis,” and to “not[e] any circumstance or condition which might affect the integrity of the sample or otherwise affect the validity of the analysis.” Id., at 65. Finally, in a block headed “certificate of reviewer,” the SLD examiner who reviewed Caylor’s analysis certified that Caylor was qualified to conduct the BAC test, and that the “estab ­ lished procedure” for handling and analyzing Bullcoming’s sample “ha[d] been followed.” Id., at 62 (capitalization omitted).

SLD analysts use gas chromatograph machines to de ­ termine BAC levels. Operation of the machines requires specialized knowledge and training. Several steps are involved in the gas chromatograph process, and human error can occur at each step.1 Caylor’s report that Bullcoming’s BAC was 0.21 sup ­ ported a prosecution for aggravated DWI, the threshold for which is a BAC of 0.16 grams per hundred milliliters, §66– 8–102(D)(1). The State accordingly charged Bullcoming with this more serious crime.

B

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

Bullcoming’s counsel opposed the State’s proposal. Id., at 44–45. Without Caylor’s testimony, defense counsel maintained, introduction of the analyst’s finding would violate Bullcoming’s Sixth Amendment right “to be con ­ fronted with the witnesses against him.” Ibid.2 The trial court overruled the objection, id., at 46–47, and admitted the SLD report as a business record, id., at 44–46, 57.3 The jury convicted Bullcoming of aggravated DWI, and the New Mexico Court of Appeals upheld the conviction, con ­ cluding that “the blood alcohol report in the present case was non-testimonial and prepared routinely with guaran ­ tees of trustworthiness.” 2008–NMCA–097, §17, 189 P. 3d 679, 685.

C

While Bullcoming’s appeal was pending before the New Mexico Supreme Court, this Court decided Melendez-Diaz. In that case, “[t]he Massachusetts courts [had] admitted into evidence affidavits reporting the results of forensic analysis which showed that material seized by the police and connected to the defendant was cocaine.” 557 U. S., at ___ (slip op., at 1). Those affidavits, the Court held, were “ ‘testimonial,’ rendering the affiants ‘witnesses’ subject to the defendant’s right of confrontation under the Sixth Amendment.” Ibid.

In light of Melendez-Diaz, the New Mexico Supreme Court acknowledged that the blood-alcohol report intro ­ duced at Bullcoming’s trial qualified as testimonial evi ­ dence. Like the affidavits in Melendez-Diaz, the court observed, the report was “functionally identical to live, in ­ court testimony, doing precisely what a witness does on direct examination.” 226 P. 3d, at 8 (quoting 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 gen ­ erated by the gas chromatograph machine.” 226 P. 3d, at 8–9. Second, SLD analyst Razatos, although he did not participate in testing Bullcoming’s blood, “qualified as an expert witness with respect to the gas chromatograph machine.” Id., at 9. “Razatos provided live, in-court tes ­ timony,” the court stated, “and, thus, was available for cross-examination regarding the operation of the . . . ma ­ chine, the results of [Bullcoming’s] BAC test, and the SLD’s established laboratory procedures.” Ibid. Razatos’ testimony was crucial, the court explained, because Bull ­ coming could not cross-examine the machine or the writ ­ ten report. Id., at 10. But “[Bullcoming’s] right of con ­ frontation was preserved,” the court concluded, because Razatos was a qualified analyst, able to serve as a surro ­ gate for Caylor. Ibid.

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

II

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

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

A

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

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

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

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

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

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

A recent decision involving another Sixth Amendment right—the right to counsel—is instructive. In United States v. Gonzalez-Lopez, 548 U. S. 140 (2006), the Gov ­ ernment 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 disre ­ garded so long as the trial is, on the whole, fair.” Id., at 145. If a “particular guarantee” of the Sixth Amendment is violated, no substitute procedure can cure the violation, and “[n]o additional showing of prejudice is required to make the violation ‘complete.’ ” Id., at 146. If repre ­ sentation by substitute counsel does not satisfy the Sixth Amendment, neither does the opportunity to confront a substitute witness.

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

III

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

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

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

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

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

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

IV

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

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

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

Furthermore, notice-and-demand procedures, long in ef ­ fect in many jurisdictions, can reduce burdens on 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 per ­ suasive power of [the State’s] case[,] . . . [even] when the defense would have preferred that the analyst did not testify.” PDS Brief 8.

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

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

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.

* JUSTICE SOTOMAYOR and JUSTICE KAGAN join all but Part IV of this opinion. JUSTICE THOMAS joins all but Part IV and footnote 6.

1 Gas chromatography is a widely used scientific method of quan­ titatively analyzing the constituents of a mixture. See generally H. McNair & J. Miller, Basic Gas Chromatography (2d ed. 2009) (hereinaf­ ter McNair). Under SLD’s standard testing protocol, the analyst ex ­ tracts two blood samples and inserts them into vials containing an “internal standard”—a chemical additive. App. 53. See McNair 141– 142. The analyst then “cap[s] the [two] sample[s],” “crimp[s] them with an aluminum top,” and places the vials into the gas chromatograph machine. App. 53–54. Within a few hours, this device produces a printed graph—a chromatogram—along with calculations representing a software-generated interpretation of the data. See Brief for State of New Mexico Dept. of Health, SLD as Amicus Curiae 16–17. Although the State presented testimony that obtaining an accurate BAC measurement merely entails “look[ing] at the [gas chromatograph] machine and record[ing] the results,” App. 54, authoritative sources re­ veal that the matter is not so simple or certain. “In order to perform quantitative analyses satisfactorily and . . . support the results under rigorous examination in court, the analyst must be aware of, and adhere to, good analytical practices and understand what is being done and why.” Stafford, Chromatography, in Principles of Forensic Toxicol ­ ogy 92, 114 (B. Levine 2d ed. 2006). See also McNair 137 (“Errors that occur in any step can invalidate the best chromatographic analysis, so attention must be paid to all steps.”); D. Bartell, M. McMurray, & A. ImObersteg, Attacking and Defending Drunk Driving Tests §16:80 (2d revision 2010) (stating that 93% of errors in laboratory tests for BAC levels are human errors that occur either before or after machines analyze samples). Even after the machine has produced its printed result, a review of the chromatogram may indicate that the test was not valid. See McNair 207–214. Nor is the risk of human error so remote as to be negligible. Amici inform us, for example, that in neighboring Colorado, a single forensic laboratory produced at least 206 flawed blood-alcohol readings over a three-year span, prompting the dismissal of several criminal prosecu­ tions. See Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 32–33. An analyst had used improper amounts of the internal standard, causing the chromatograph machine system­ atically to inflate BAC measurements. The analyst’s error, a supervi­ sor said, was “fairly complex.” Ensslin, Final Tally on Flawed DUI: 206 Errors, 9 Tossed or Reduced, Colorado Springs Gazette, Apr. 19, 2010, p. 1 (internal quotation marks omitted), available at http:// www.gazette.com/articles/report-97354-police-discuss.html. (All Inter ­ net materials as visited June 21, 2011, and included in Clerk of Court’s case file).

2 The State called as witnesses the arresting officer and the nurse who drew Bullcoming’s blood. Bullcoming did not object to the State’s failure to call the SLD intake employee or the reviewing analyst. “It is up to the prosecution,” the Court observed in Melendez-Diaz v. 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.”

3 The trial judge noted that, when he started out in law practice, “there were no breath tests or blood tests. They just brought in the cop, and the cop said, ‘Yeah, he was drunk.’ ” App. 47.

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.

5 The dissent makes plain that its objection is less to the application of the Court’s decisions in Crawford and Melendez-Diaz to this case than to those pathmarking decisions themselves. See post, at 5 (criti­ cizing the “Crawford line of cases” for rejecting “reliable evidence”); post, at 8–9, 11 (deploring “Crawford’s rejection of the [reliability ­ centered] regime of Ohio v. Roberts”).

6 To rank as “testimonial,” a statement must have a “primary pur ­ pose” of “establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution.” Davis v. Washington, 547 U. S. 813, 822 (2006). See also Bryant, 562 U. S., at ___ (slip op., at 11). Elaborating on the purpose for which a “testimonial report” is created, we observed in Melendez-Diaz that business and public records “are generally admissible absent confrontation . . . because—having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial—they are not testimonial.” 557 U. S., at ___ (slip op., at 18).

7 We do not question that analyst Caylor, in common with other ana­ lysts employed by SLD, likely would not recall a particular test, given the number of tests each analyst conducts and the standard procedure followed in testing. Even so, Caylor’s testimony under oath would have enabled Bullcoming’s counsel to raise before a jury questions concern­ ing Caylor’s proficiency, the care he took in performing his work, and his veracity. In particular, Bullcoming’s counsel likely would have inquired on cross-examination why Caylor had been placed on unpaid leave.

8 At Bullcoming’s trial, Razatos acknowledged that “you don’t know unless you actually observe the analysis that someone else conducts, whether they followed th[e] protocol in every instance.” App. 59.

9 The dissent argues otherwise, reporting a 71% increase, from 2008 to 2010, in the number of subpoenas for New Mexico analysts’ testi­ mony in impaired-driving cases. Post, at 11. The dissent is silent, however, on the number of instances in which subpoenaed analysts in fact testify, i.e., the figure that would reveal the actual burden of courtroom testimony. Moreover, New Mexico’s Department of Health, Scientific Laboratory Division, has attributed the “chaotic” conditions noted by the dissent, ibid., to several favors, among them, staff attri ­ tion, a state hiring freeze, a 15% increase in the number of blood samples received for testing, and “wildly” divergent responses by New Mexico District Attorneys to Melendez-Diaz. Brief for State of New Mexico Dept. of Health, SLD as Amicus Curiae 2–5. Some New Mexico District Attorneys’ offices, we are informed, “subpoen[a] every analyst with any connection to a blood sample,” id., at 5, an exorbitant practice that undoubtedly inflates the number of subpoenas issued.

10 The dissent refers, selectively, to experience in Los Angeles, post, at 10, but overlooks experience documented in Michigan. In that State, post-Melendez-Diaz, the increase in in-court analyst testimony has been slight. Compare PDS Brief 21 (in 2006, analysts provided testimony for only 0.7% of all tests), with Michigan State Police, Forensic Science Division, available at http://www.michigan.gov/msp/0,1607,7-123 ­ 1593_3800-15901--,00.html (in 2010, analysts provided testimony for approximately 1% of all tests).

11 As in Melendez-Diaz, 557 U. S., at ___, and n. 14 (slip op., at 23, and n. 14), we express no view on whether the Confrontation Clause error in this case was harmless. The New Mexico Supreme Court did not reach that question, see Brief for Respondent 59–60, and nothing in this opinion impedes a harmless-error inquiry on remand.

SOTOMAYOR, J., concurring in part

SUPREME COURT OF THE UNITED STATES
_________________

No. 09–10876

_________________

DONALD BULLCOMING, PETITIONER v. NEW

MEXICO

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

NEW MEXICO

[June 23, 2011]

JUSTICE SOTOMAYOR, concurring in part.

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

I

A

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

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

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

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

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

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

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

B

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

II

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

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

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

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

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

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

* * *

As in Melendez-Diaz, the primary purpose of the BAC report is clearly to serve as evidence. It is therefore tes ­ timonial, and the trial court erred in allowing the State to introduce it into evidence via Razatos’ testimony. I respectfully concur.

1 Contrary to the dissent’s characterization, Bryant deemed reliabil­ ity, as reflected in the hearsay rules, to be “relevant,” 562 U. S., at ___ (slip op., at 11–12), not “essential,” post, at 5 (opinion of KENNEDY, J.). The rules of evidence, not the Confrontation Clause, are designed primarily to police reliability; the purpose of the Confrontation Clause is to determine whether statements are testimonial and therefore re­ quire confrontation.

2 This is not to say, however, that every person noted on the BAC report must testify. As we explained in Melendez-Diaz, it is not the case “that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case . . . . It is up to the prosecution to decide what steps in the chain of custody are so crucial as to require evidence . . . .” 557 U. S., at ___, n. 1 (slip op., at 5, n. 1).

3 By looking to the formality of a statement, we do not “trea[t] the reliability of evidence as a reason to exclude it.” Post, at 5 (KENNEDY, J., dissenting). Although in some instances formality could signal reliabil ­ ity, the dissent’s argument fails to appreciate that, under our Confron ­ tation Clause precedents, formality is primarily an indicator of testi­ monial purpose. Formality is not the sole indicator of the testimonial nature of a statement because it is too easily evaded. See Davis v. Washington, 547 U. S. 813, 838 (2006) (THOMAS, J., concurring in judgment in part and dissenting in part). Nonetheless formality has long been a hallmark of testimonial statements because formality suggests that the statement is intended for use at trial. As we ex­ plained in Bryant, informality, on the other hand, “does not necessarily indicate . . . lack of testimonial intent.” 562 U. S., at ___ (slip op., at 19). The dissent itself recognizes the relevance of formality to the testimonial inquiry when it notes the formality of the problematic unconfronted statements in Sir Walter Raleigh’s trial. Post, at 7–8 (opinion of KENNEDY, J.).

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, applicable to the extension of that doctrine and to the new ruling in this case, are now explained in support of this respectful dissent.

I

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

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

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

The representative of the testing laboratory whom the prosecution called was a scientific analyst named Mr. Razatos. He testified that he “help[ed] in overseeing the administration of these programs throughout the State,” and he was qualified to answer questions concerning each of these steps. App. 49. The Court has held that the government need not produce at trial “everyone who laid hands on the evidence,” Melendez-Diaz, supra, at ___, n. 1 (slip op., at 5, n. 1). Here, the defense used the opportunity in cross-examination to highlight the absence at trial of certain laboratory employees. Under questioning by Bullcoming’s attorney, Razatos acknowledged that his name did not appear on the report; that he did not receive the sample, perform the analysis, or complete the review; and that he did not know the reason for some personnel decisions. App. 58. After weighing arguments from defense counsel concerning these admissions, and after 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., dissenting).

II

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

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

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

Today’s majority is not committed in equal shares to a common set of principles in applying the holding of Crawford. Compare Davis, supra (opinion for the Court by SCALIA, J.), with id., at 834 (THOMAS, J., concurring in judgment in part and dissenting in part); and Bryant, supra, (opinion for the Court by SOTOMAYOR, J.), with id., at ___ (THOMAS, J., concurring in judgment), and id., at ___ (SCALIA, J., dissenting), and id., at ___ (GINSBURG, J., dissenting); and ante, at ___ (slip op., at 1) (opinion of the Court), with ante, at ___ (slip op., at 1) (SOTOMAYOR, J., concurring). That the Court in the wake of Crawford has had such trouble fashioning a clear vision of that case’s meaning is unsettling; for Crawford binds every judge in every criminal trial in every local, state, and federal court in the Nation. This Court’s prior decisions leave trial judges to “guess what future rules this Court will distill from the sparse constitutional text,” Melendez-Diaz, supra, at ___ (slip op., at 2) (KENNEDY, J., dissenting), or to struggle to apply an “amorphous, if not entirely subjective,” “highly context-dependent inquiry” involving “open-ended balancing.” Bryant, supra, at ___ (slip op., at 15–16) (SCALIA, J., dissenting) (internal quotation marks omitted) (listing 11 factors relevant under the majority’s approach). The persistent ambiguities in the Court’s approach are symptomatic of a rule not amenable to sensible applications. Procedures involving multiple participants illustrate the problem. In Melendez-Diaz the Court insisted that its opinion did not require everyone in the chain of custody to testify but then qualified that “what testimony is introduced must . . . be introduced live.” 557 U. S., at ___, n. 1 (slip op., at 5, n. 1); ante, at 6, n. 2. This could mean that a statement that evidence remained in law-enforcement custody is admissible if the statement’s maker appears in court. If so, an intern at police headquarters could review the evidence log, declare that chain of custody was retained, and so testify. The rule could also be that that the intern’s statement—which draws on statements in the evidence log—is inadmissible unless every officer who signed the log appears at trial. That rule, if applied to this case, would have conditioned admissibility of the report on the testimony of three or more identified witnesses. See App. 62. In other instances, 7 or even 40 witnesses could be required. See supra, at 3. The court has thus—in its fidelity to Melendez-Diaz—boxed itself into a choice of evils: render the Confrontation Clause pro forma or construe it so that its dictates are unworkable.

III

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

A rule that bars testimony of that sort, however, provides neither cause nor necessity to impose a constitutional bar on the admission of impartial lab reports like the instant one, reports prepared by experienced technicians in laboratories that follow professional norms and scientific protocols. In addition to the constitutional right to call witnesses in his own defense, the defendant in this case was already protected by checks on potential prosecutorial abuse such as free retesting for defendants; 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 opposites.

Instead of freeing the Clause from reliance on hearsay doctrines, the Court has now linked the Clause with hearsay rules in their earliest, most rigid, and least refined formulations. See, e.g., Mosteller, Remaking Confrontation Clause and Hearsay Doctrine Under the Challenge of Child Sexual Abuse Prosecutions, 1993 U. Ill. L. Rev. 691, 739–740, 742, 744–746; Gallanis, The Rise of Modern Evidence Law, 84 Iowa L. Rev. 499, 502–503, 514–515, 533–537 (1999). In cases like Melendez-Diaz and this one, the Court has tied the Confrontation Clause to 18th century hearsay rules unleavened by principles tending to make those rules more sensible. Sklansky, Hearsay’s Last Hurrah, 2009 S. Ct. Rev. 1, 5–6, 36. As a result, the Court has taken the Clause far beyond its most important 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 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 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.

Transcript: 

ORAL ARGUMENT OF JEFFREY L. FISHER ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We will hear argument first this morning in Case 09-10876, Bullcoming v. New Mexico.

Mr. Fisher.

Mr. Fisher: Mr. Chief Justice, and may it please the Court:

The text, purpose, and history of the Confrontation Clause make it clear that the prosecution cannot introduce one person's testimonial statements through the in-court testimony of someone else.

Thus, having held in Melendez-Diaz that a lab analyst's statements in a forensic lab report are testimonial, this is an easy case.

The State violated the Confrontation Clause by introducing lab analyst Curtis Caylor's statements in a forensic lab report without putting him on the stand.

The New Mexico Supreme Court resisted this analysis, straightforward as it is, on the ground that Mr. Bullcoming, as the defendant, had the opportunity to cross-examine a substitute or a surrogate witness, Mr. Razatos.

But a surrogate witness procedure violates all four components of the right to confrontation.

It quite obviously violates the defendant's right to have the witness testify in his presence, in the presence of the jury so the jury can observe it, and under oath, as happened in this case.

Justice Ruth Bader Ginsburg: Mr. Fisher, when you say "in the presence", do you -- do you mean it necessarily must be in the courtroom, or would a video-conferencing set-up be permissible so that the technician or the analyst could testify from the lab, rather -- but it would be screened in -- in the courthouse?

Mr. Fisher: Well, the default rule under the Confrontation Clause is in presence, in the courtroom.

Now, in Maryland v. Craig, this Court held in a child witness setting -- of course, very different than this case -- that closed-circuit TV would be permissible, and I believe, you know, in a future case, if the State perhaps made some sort of showing that the lab analyst couldn't come to court for some reason, and certainly if the defendant stipulated, and maybe even if the defendant didn't stipulate, a court could accommodate--

Justice Ruth Bader Ginsburg: The defendant didn't give his consent, so we don't -- that's not a concern, but let's -- let's suppose defendant doesn't stipulate.

Is this adequate to meet the Confrontation Clause?

Mr. Fisher: --I don't think it would be adequate, Justice Ginsburg, with at least some -- absent at least some showing of unavailability of the witness or -- making the witness unable to come to court.

Now -- now, there is an amicus brief in the case, I believe, that suggests some flexibility that trial judges might employ in -- in accommodating lab analysts' schedules.

Justice Antonin Scalia: What about police witnesses?

What about not requiring the officer who -- who took the confession or who witnessed the alleged crime -- not requiring him to appear because he's busy?

Mr. Fisher: Well, that's never been--

Justice Antonin Scalia: Can't make it.

He's out on the beat.

So can we have him appear by television?

Mr. Fisher: --That's never been the rule, Justice Scalia, and I don't think there would be a need to--

Justice Antonin Scalia: Why -- why is a lab technician different?

Mr. Fisher: --I don't think -- I don't think one is, and you don't have to reach that in this case, because the State never attempted to make any showing that Mr. Caylor was unavailable for any reason.

This--

Chief Justice John G. Roberts: Mr. Fisher, what if you had two people doing this procedure?

They're sitting in, you know, chairs right next to the other.

The one, you know, takes the blood samples from the vials, puts them in another vial, and puts the aluminum stuff on and crimps it.

The other one then takes the vials and puts them in the machine and runs it.

Do you have to have both of them testify?

Mr. Fisher: --Only if the State wants to present statements from them both.

Chief Justice John G. Roberts: No, they want to--

Mr. Fisher: They both--

Chief Justice John G. Roberts: --They want to present the results of the blood analysis--

Mr. Fisher: --I think--

Chief Justice John G. Roberts: --the numbers the machine spits out.

Mr. Fisher: --I think in that scenario, if both people were there for the whole thing, the State could have either one of them testify.

What the State couldn't do--

Chief Justice John G. Roberts: Even though one--

Mr. Fisher: --and this is the rule--

Chief Justice John G. Roberts: --Even though one didn't do it?

Even though the question is going to be, did you put the aluminum on and crimp it, and the answer is going to be, no, Joe did it; he sits right next to me?

Mr. Fisher: --That's right.

The Confrontation Clause is a purely procedural right, Mr. Chief Justice.

Chief Justice John G. Roberts: I'm sorry.

That's right.

Does -- do they both have to testify, then, or not?

Mr. Fisher: They do not have to.

The Confrontation Clause is a purely procedural right.

It all depends on what -- whose statements the State wants to introduce.

So, if the State is satisfied to prove its case by having somebody testify, saying, I watched the thing go into the machine and I watched this result come out and I saw that it wasn't tampered with and it was Mr. Bullcoming's sample, then that would be fine.

And in fact, what some labs do--

Justice Anthony Kennedy: I -- I don't understand that.

How is that any different than the supervisor of the lab saying, I know what these people do, I -- I watch them on a day-to-day basis, and they perform their work correctly?

Mr. Fisher: --Again, the question, Justice Kennedy, is not who the State has to bring in.

The question is whose statements the State wants to introduce.

Here, the State wanted to introduce Mr. Caylor's statements, and so it therefore needs to--

Justice Anthony Kennedy: What the State wanted to introduce is the result of the exam, and the Chief Justice gives you the hypothetical.

Say, two people are necessary for the exam.

You say only one has to be there if both saw it?

Mr. Fisher: --If only -- if the State is only introducing one person--

Justice Anthony Kennedy: But it -- but it's hearsay as to what the first person did with -- with crimping--

Mr. Fisher: --I don't--

Justice Anthony Kennedy: --crimping the thing.

It's not direct testimony from that person.

You didn't say, are you experienced in crimping?

Did you use your right hand or your left hand?

Is there a danger of spillage?

And so on.

All that is beyond the ability of the defense to ask.

Mr. Fisher: --No, I -- Justice Kennedy, I don't think it's hearsay.

It's simply being an eyewitness and saying: Here's what I watched.

I watched this person put it into the machine, and this is the result that I saw come out.

Now, again, the only question is whose statements the State wants to introduce.

By all means, Mr. Chief Justice and Justice Kennedy, if the State wanted to introduce statements from both of the lab analysts who worked together on the case, they would need to bring them both in, but if they only want to introduce one lab--

Justice Antonin Scalia: The State takes its chances, right?

I mean, as to how much it has to bring in, in order to persuade the jury?

Mr. Fisher: --That's right.

That's the decision the State makes in every case, whether it be multiple police investigators, multiple eyewitnesses, or--

Justice Anthony Kennedy: You always take your chances with a business record.

That's a given, of course.

Of course, the State takes a chance with the -- with the admission of any admissible hearsay testimony that the jury will be -- that you'll make the argument to the jury that you should discount it if the person isn't there.

That's always true.

Mr. Fisher: --I'm not sure I -- I disagree with anything you said, but the rule of the Confrontation Clause applies to a particular kind of statements, testimonial statements.

And our rule today and the one that resolves this case is, if the State wants to introduce a witness's testimonial statements, it needs to bring that witness to court.

Now, footnote 1 in Melendez-Diaz--

Justice Anthony Kennedy: Now, I take it it's a testimonial statement that this blood that was taken at the hospital was the blood of the defendant.

That's a testimonial statement?

Mr. Fisher: --Yes, I believe it would be, Justice Kennedy.

Justice Anthony Kennedy: And so I assume that in this case, the nurse and the police officer were both present.

Mr. Fisher: Yes, and, in fact--

Justice Anthony Kennedy: But I assume under your position, you could not have a record showing that the -- the nurse withdrew the sample at 10:08 p.m. on such-and-such a date and that she followed the regular procedure.

That would be insufficient if the State wanted to introduce just a certificate or just -- just that record?

Mr. Fisher: --I think that's what footnote 1 in Melendez-Diaz says.

If the defendant wants to challenge the chain of custody, then the State needs to bring in the witnesses.

Now, I think it's an interesting fact in this case, and it shows why that rule isn't so--

Justice Samuel Alito: Well, that's not -- I don't think that's what Melendez-Diaz' footnote 1 says.

It says that the State may be able to prove chain of custody by testimony other than the actual individuals who handled the sample, and then it has to take its chances as to whether the trier of fact is going to believe -- is going to believe that.

Isn't that right?

Mr. Fisher: --I think that's right.

I think what footnote 1 says is the defendant -- when the State chooses whose testimony it wants to introduce, the defendant has the right to insist that that be done live.

Justice Anthony Kennedy: It does -- it does not--

Justice Antonin Scalia: Does not Melendez-Diaz also say that if the defendant wants to challenge the -- the chain of custody, the State can adopt rules that requires the defendant to assert that challenge or his intention to make that challenge, or his intention to make that challenge, prior to the trial so that the State will know whether it has to introduce any live testimony?

Mr. Fisher: Of course, that's correct under the notice and demand regimes that Melendez-Diaz approved of.

And the Public -- the PDS brief in this case showed that many States do use those regimes.

Now, Justice Kennedy, I did want to--

Justice Anthony Kennedy: --But the chain -- the chain of custody does involve a testimonial statement that this is the blood, that I took it out at 10:05 p.m. on Saturday evening.

That's a testimonial statement.

It's the defendant's blood.

Mr. Fisher: --Yes, it can, Justice Kennedy, but chain of custody is proved by live witnesses every day in -- every day in courtrooms across the country--

Justice Stephen G. Breyer: But it's not just--

Mr. Fisher: --long before Melendez-Diaz or Crawford.

Justice Stephen G. Breyer: --It's not just chain of custody.

I think the Chief Justice is trying to get at this problem, or I am: Lab technician Jones looks at a vial, and it's blue.

She says to Smith, "it's blue".

Smith turns a lever on a machine to B.

Jason sees the B and goes into court -- you make him go into court; that's our case.

And what I wonder is, is the defendant now entitled to the following instruction: Jury, because he's in court, he can say that the machine read B, but that proves nothing about the vial, nothing.

All it proves is what someone said in the laboratory to another person, and those two people aren't in court.

Now, that's -- you see, that's the problem, I think, of the intermediate step.

I'd either like to be told I'm wrong about that, you don't have to have them, or explain whatever you'd like.

Mr. Fisher: If I understand your hypothetical correctly, I think that if the defendant wanted -- the defendant can certainly make that argument to a jury, and the defendant, if he wanted to insist -- if the prosecution wanted to tie the results -- let's bring it back to the facts of this case -- wanted to tie the.21 to Mr. Bullcoming by saying that was Mr. Bullcoming's sample, then they'd need to bring somebody into court if the defendant insisted upon it.

But the one thing I want to add is that the Public Defender Service brief makes clear, and the facts of this case make clear, it's going to be very rare that a defendant wants to do that.

The defendant in this case wanted to stipulate to the nurse's blood draw and that it was his blood that was drawn in the hospital.

It was the State that insisted on putting her on the stand.

It happens in courtrooms all across the country.

Justice Anthony Kennedy: Well, but if you want to tell us, don't worry, it won't happen, I think that's an unacceptable argument.

You're saying the defense has certain rights, and we have to presume there is a defense attorney who's going to afford his client every right the Constitution has.

So the fact that we're not supposed to worry because it won't happen very often is (a) it seems to me, an unlikely hypothetical; and (b) it seems to me, irrelevant to your argument.

Mr. Fisher: Well, Justice Kennedy, I will gladly accept (b) if we want to say that consequences are irrelevant, because I think that's what -- the Sixth Amendment is what it is, but I think the only thing I would add is that all I can say is, empirically, in the States that have followed the rule we advocate today, long before Crawford or Melendez-Diaz, it simply is a manageable burden.

I'm not saying it's no burden.

But it is a thoroughly manageable--

Justice Antonin Scalia: Mr. Fisher, I thought -- I thought the Court put this worry behind us in Crawford.

Wasn't the same worry raised in Crawford?

Mr. Fisher: --Well, I think it was raised even more pointedly in Melendez-Diaz when it comes to lab analysts.

I think in both places the Court, yes, set that aside.

Justice Antonin Scalia: Said, yes, it may be something of a risk, but the States have managed it in the past, and there's no reason to think they can't manage it in the future.

Mr. Fisher: I think that's what Melendez-Diaz--

Justice Sonia Sotomayor: Counsel, there are different types of hearsay involved here or different types of statements.

There's the report itself, which was Exhibit 1 that was introduced, and it has certain certifications by the analyst, that he followed certain procedures, et cetera.

I'm assuming that you're claiming that those -- those are the Confrontation Clause violations, that exhibit itself, because it is attesting or certifying to something.

Mr. Fisher: --Yes.

Justice Sonia Sotomayor: The witness is not at trial here.

Mr. Fisher: Yes, Mr. Caylor's certifications in this -- in the lab report, not only that the blood -- that the blood had a.21 blood alcohol content, but also that--

Justice Sonia Sotomayor: Well, that's where I want--

Mr. Fisher: --Oh, but--

Justice Sonia Sotomayor: --That -- the "also" is what I summarized in saying that he followed certain procedures, that it was in accordance with law, et cetera.

Mr. Fisher: --And also that it was Mr. Bullcoming's blood sample and that the sample had not been tampered with.

Justice Sonia Sotomayor: Right.

Mr. Fisher: That's the totality of the--

Justice Sonia Sotomayor: All right.

Justice Samuel Alito: But as to those persons who--

Justice Sonia Sotomayor: Now -- if I might just finish my question.

Justice Samuel Alito: --Okay.

Go ahead.

Yes.

Justice Sonia Sotomayor: Let's assume that the raw data, the graphs that were made, were reviewed by a separate witness, and he reviewed the data and says, this data shows that the blood level concentration was.21, or two-point whatever it was.

Would that violate the Confrontation Clause, using the raw data itself?

Mr. Fisher: --I want to be clear that raw -- by "raw data", you mean the printout from a machine?

Justice Sonia Sotomayor: The printout from the machine.

Mr. Fisher: It's used a few different ways in the briefing.

Justice Sonia Sotomayor: That wasn't introduced here; am I correct?

Mr. Fisher: It was neither -- it was not introduced, and there's nothing in the record to show that Mr. Razatos even reviewed it.

Justice Sonia Sotomayor: All right.

But let's assume--

Mr. Fisher: So what he did is just read the report.

Justice Sonia Sotomayor: --Let's assume he just took the raw data at trial.

I know we now have a chain of custody, and someone will have to prove that this is the data related--

Mr. Fisher: Right.

Justice Sonia Sotomayor: --to Mr. Bullcoming.

But if that expert then read that data and testified that this was of a certain amount or percentage of alcohol, would that violate the Confrontation Clause?

Mr. Fisher: Probably not.

Provided, as you say, the chain of custody had been either properly proved or stipulated to, I think an expert could take the stand and say, I'm looking at a graph, and here's what the graph shows me.

Now, you might get into--

Justice Ruth Bader Ginsburg: And that's what -- that's the New Mexico Supreme Court suggested, didn't they?

They said bring the printout from the gas -- whatever -- chromatograph, and then have an expert who was not the one who certified -- it was not Caylor -- but that here's the graph that came out of the machine, and this is the way this process operates.

I -- in your answer to Justice Sotomayor, did you mean to agree with the New Mexico Supreme Court when they said printout plus an analyst who didn't do this particular run but knows how the process works?

Mr. Fisher: --No, Justice Ginsburg.

I'm certainly not here today to agree with the New Mexico Supreme Court.

What they said doesn't -- doesn't make any sense in this case because (a) the printout was never introduced into evidence or looked at, and (b) it would matter a great deal -- and this is how I continue my answer.

It mattered a great deal what was on the printout.

If the printout is nothing more than a graph, then I don't think you can say that's a testimonial statement.

If a printout comes out of a machine that also says at the top blood sample was Donald Bullcoming's, here's the test that was run, et cetera, those may well be testimonial statements that the analyst triggered the machine to spit out.

So the Fourth Circuit has wrestled with this issue in the Washington case, and you can -- you can look at the majority and the dissenting opinions in that case.

I think that the question would arise in that scenario, if the graphs were -- if the machine printouts were introduced into evidence, the question would be, are the machine printouts testimonial?

And to the extent they are, you'd have the same problem in this case.

To the extent they are not -- as the Fourth Circuit suggested, at least to some degree they may not be -- then you don't have a--

Justice Sonia Sotomayor: What part--

Mr. Fisher: --Confrontation Clause problem.

Justice Sonia Sotomayor: --What part do you see as testimonial or not?

What can an outside expert look at?

Mr. Fisher: I think an expert can look at anything.

The only question is what's introduced into evidence.

There's no -- there's no Confrontation Clause--

Justice Sonia Sotomayor: Well, I -- that--

Mr. Fisher: --barring an expert from reviewing whatever he wants.

Justice Sonia Sotomayor: --There's two different issues: one, what can be introduced into evidence, which is the reports themselves; and what can he or she testify to is a different question.

That's a form of evidence.

And so that's the line I'm trying to get you to describe for me, which is, when does that testimony become a violation of the Confrontation Clause?

Mr. Fisher: In one of two scenarios, Justice Sotomayor, the first which is the scenario we have in this case, when the report is introduced and it's testimonial.

The second--

Justice Sonia Sotomayor: Let's assume the hypothetical I proffered.

Mr. Fisher: --The second is that it's not introduced.

Then you have a Confrontation Clause violation if the expert -- and this is the words many lower courts have used -- is a mere conduit for introducing the out-of-court testimonial statement.

So--

Justice Samuel Alito: Could we break this down in -- in this way?

I see three things that the -- three statements that the -- the State was attempting to -- to prove.

The first was that the sample that was tested was the sample that was taken from the defendant.

Second was that the standard procedures were followed in this case, and the third was that the result was.21.

Would you agree with that?

Those are the three things?

Mr. Fisher: --I think there's one other thing, Justice Alito, which is that the sample had not been tampered with--

Justice Samuel Alito: All right.

Mr. Fisher: --or contaminated.

Justice Samuel Alito: That the sample had not been tampered with.

Now, as to the first three, in other words, everything other than the results, could the State prove those things without having -- simply by introducing testimony regarding the way things were generally done in the lab, and ask the jury to infer that the general procedures were followed in this particular case?

Mr. Fisher: I think that would be a question of State law, Justice Alito.

Justice Samuel Alito: It wouldn't be a Confrontation--

Mr. Fisher: It wouldn't be a Confrontation Clause question.

Justice Samuel Alito: --All right.

Now, in this case, as I read the record, it seems to me that's what the prosecutor was attempting to do.

This is on page 50 of the Joint Appendix.

The analyst is beginning to testify, the second answer on page 50: So what we do is we will get the sample in the mail, et cetera.

The analyst is beginning to testify about standard lab procedures, and then defense attorney says,

"Your Honor, I'm going to object to what's done in the status quo. "

I take that to mean what is generally done.

"I don't object to what was done in this case. "

So the defense attorney is preventing -- is objecting to the prosecution's attempting to discharge its responsibility with respect to those first three propositions through testimony about standard procedures, and is insisting that the analyst provide the testimony that you say was a violation of the Confrontation Clause; namely, testifying as to what was done in this particular case.

Mr. Fisher: Justice Alito, I think if you look earlier in the Joint Appendix, I believe it's at page 40, where the State for the first time says we're going to put Mr. Razatos on the stand instead of Mr. Caylor, there's a -- there's an objection there as well that says you can't then put the document into evidence that Mr. Caylor wrote if he's not going to be on the stand.

That's the critical objection here.

Now, you're right, there's nothing wrong with Mr. Razatos having taken the stand in this case, there's nothing wrong with him having described typical procedures in the lab.

I think the objection you're pointing was to the one that said -- again, as far as the State law objection, saying he can't testify to something he doesn't have personal knowledge about, which is whether the procedures were followed in this case.

But Mr. -- Mr. Razatos could certainly take the stand and testify to -- to general procedures.

But at page 54 and 55 of the Joint Appendix, he -- he simply reads the report's results.

And so you have two Confrontation Clause violations, really.

You have the report being introduced in the first instance, and then you have -- I believe it's at 54 and 55 of the Joint Appendix.

You have the prosecutor asking Mr. Razatos, what was the result?

He says the result was.21.

As the State itself says at page 58, note 15 of its brief, there was no independent analysis being applied there.

All Mr. Razatos was doing was repeating and giving the jury the conclusions that Mr. Caylor had reached.

Justice Samuel Alito: But if the -- if the machine had expelled a piece of paper that said.21, that piece of paper would not be a -- introduction of that piece of paper, the contents of the piece of paper, would not be a violation of the Confrontation Clause?

Mr. Fisher: If it said nothing more than the.21 coming out of the machine, I think probably not.

Now, judge Michael in the First Circuit would disagree; and so that's an issue that's not in this case, and I think you could debate whether that should -- even that should be considered hearsay of the operator.

Justice Samuel Alito: Well, how can -- how can you debate it?

The purpose of the Confrontation Clause is to allow cross-examination.

How are you going to cross-examine the machine?

Mr. Fisher: Well -- well, the question that would arise there would be whether the.21 should be treated as Mr. Caylor's statement.

Let me -- if I give you two hypotheticals, maybe it explains.

On the one hand, I don't think anyone would claim that a time stamp on a fax machine, for example, is a human statement.

It's a machine statement, and so therefore it can't be testimonial.

On the other hand, if someone types out an affidavit on a word processor and hits print, you can't say, well, that's the machine talking, not the human.

So the question arises in the lab context whether a.21 or anything else that comes out of the machine has enough human influence that it ought to be treated as the -- as the person's statement.

Now, you don't have to resolve that in this case, and what's important to emphasize is that that hypothetical of the.21, even though the State would like it to be this case, is really miles away for the reason you said, because the State proved a lot more than.21 by Mr. Caylor's lab report, and that's why these hypotheticals I think are important.

Justice Samuel Alito: But all of those other things could potentially be proven by indirect evidence, by establishing standard procedures and asking the jury to infer that the standard procedures were followed in this case.

They might -- they might believe that; they might not--

Mr. Fisher: The State could--

Justice Samuel Alito: --They might make the inference; they might not.

Mr. Fisher: --The State could make that choice, but it would be a considerably weaker case, Justice Alito, not just because they wouldn't have anyone saying that the procedures were actually followed in this case, but also in this case it would be a far weaker case because they'd have somebody on the stand who would now be subject to cross-examination as to why he had been recently put on unpaid leave.

Justice Samuel Alito: But as to this case, didn't the defendant actually testify that he was drunk at the time of -- at the time when the blood was extracted?

He took the stand and he testified that after the accident he went off into the woods and he came upon people who were drinking vodka and he drank, they drank -- what was it -- a gallon of vodka together, and then he went back to the scene and his blood was tested?

Mr. Fisher: That was--

Justice Samuel Alito: Isn't that correct?

Mr. Fisher: --That was his defense, Justice Alito, and here's why the lab report is still important, though.

Because you're right, he did admit he was drunk.

But remember, he was not convicted simply of DUI; he was convicted in New Mexico law of aggravated DUI.

And to have aggravated DUI you need to have up to a.16 blood alcohol content.

So the report is the only the State could have proved over.16, even if Mr. Bullcoming admitted that he had been drinking that day.

So that's why it's important in this case.

That's why he wanted to challenge -- that's one reason why he wanted to challenge the report.

Let me come back to the -- to the important point, I think, though, that what the State wants to be able to do -- I don't want to ascribe a bad motive, but what the State's rule would allow States to do is to insulate people from cross-examination, not just Mr. Caylor in this case, but -- but -- but please pay attention to, for example, the Dungo case that's cited in our opening brief, from California.

That's a case where a coroner had been fired from his job, blacklisted by law enforcement, and prohibited from testifying in many counties because he falsified his reports, his autopsy reports, by writing them with the police report sitting right next to him.

Justice Samuel Alito: But the State can't--

Mr. Fisher: And--

Justice Samuel Alito: --The State can't immunize those people from testifying.

You could have subpoenaed Caylor, couldn't you?

You could have asked for a continuance and -- and a subpoena, and brought him in to testify?

It's just a question of who has to take the step, right?

Mr. Fisher: --Well, we -- we could have, but Melendez-Diaz makes clear that doesn't satisfy the Confrontation Clause.

And when you deal especially with a garden variety DUI case there is only so much time and resources at issue, and that's why the Confrontation Clause I think is especially important in a case like this, that the prosecution bring its witnesses into court.

And if I could just finish the Dungo story, in the -- in the California Court of Appeal, when they reviewed that case, they said the prosecutor's intent in that case had been to shield Mr. -- I'm sorry, the -- the actual analyst in that case from cross-examination.

And, in fact, the supervisor when he took the stand at the preliminary hearing told -- told the court the reason why they have me here is the prosecutors find it too hard to have this person in court.

So that would be perfectly permissible, if -- if the State win this case today and surrogate testimony were allowed.

Justice Ruth Bader Ginsburg: How do you answer the practical situation that Caylor, who did this particular run, does some dozens day in and day out, and he will have no memory, in fact, of this particular test.

So having him there -- he knows how the process operates; he doesn't remember this particular one -- how does having him there -- what could be elicited on cross-examination of him that couldn't be from his supervisor?

Mr. Fisher: Let me give you two answers, Justice Ginsburg, but first let me say we don't know whether somebody doesn't remember it until he's put on the stand.

What the NACDL brief says is that even though analysts don't ordinary remember run-of-the-mill tests like this, that do remember if something went wrong or if something went haywire.

So we wouldn't know that.

But assuming you're right that--

Justice Antonin Scalia: Wasn't it the case that these tests are unusual in this particular jurisdiction?

Mr. Fisher: --That's my understanding, Justice Scalia.

So that's another reason why he may have remembered.

But even if he didn't, there's two things that could be importantly probed here.

One is his credibility.

And I've explained why that was a very serious issue in this case, because he was put on unpaid leave.

The other is his competence.

Again, Melendez-Diaz says it's important to have the person on the stand to explain how he does his job, for the jury to observe his professionalism, for him to explain here's my understanding of these procedures, et cetera.

That could be very important, and if I could leave you with one thing before I--

Justice Antonin Scalia: Well, I assume that even if he doesn't remember, his testimony is not worthless to the prosecution.

He -- the prosecution can bring out his high qualifications, and he can testify: It -- this is always the way I do it.

I do it this way all the time.

I don't remember this particular incident.

All of that can be persuasive to the jury, can't it?

Mr. Fisher: --Of course, it can, Justice Scalia.

And on the flip side, even if he doesn't remember, cross-examination is very important.

If I could leave you with one thing that I think isn't highlighted in the brief maybe the way it should have been.

There's a line of cases from this Court, California v. Green, Delaware v. Fensterer, and United States v. Owens, that all hold that if a witness takes the stand and doesn't remember anything, that the Confrontation Clause is still -- is still satisfied, as long as that witness is on the stand for the reason Justice Scalia explained and because the jury can observe them, et cetera.

And so, the flip side of that has to be -- it's the holding of Owens most recently is that those are meaningful things that the Confrontation Clause requires.

And so the flip side of those cases has to be that if the witness takes the stand and doesn't remember, the ineffectiveness potentially of a cross-examination there doesn't matter, either.

If I could reserve what little time I have left.

Chief Justice John G. Roberts: Thank you, Mr. Fisher.

General King.

ORAL ARGUMENT OF GARY K. KING ON BEHALF OF THE RESPONDENT

Mr. King: Mr. Chief Justice, and may it please the Court:

As the Court said in Michigan v. Bryant, a police interrogation resembles an ex parte examination when the primary purpose of the interrogation is to create, quote, an out-of-court substitute for trial testimony, end quote.

A public record not prepared by a police officer is not the product of structured interrogation.

It is neither ex parte nor is it an examination.

Justice Antonin Scalia: I don't understand that.

You mean so long as all -- all hearsay by non-police officers can be admitted without, without confrontation, just because they're not police officers?

Mr. King: No, Your Honor, I don't believe that that's the--

Justice Antonin Scalia: I didn't think that was your point, because it's certainly not true, is it?

Mr. King: --It is not my point, Your Honor.

Your Honor, the point that I am making is that in this case, the document, the report that we're talking about is a public record, and that differentiates it from the affidavit in Melendez-Diaz, and so the case that--

Justice Sonia Sotomayor: I'm sorry, could you tell me what that means?

Why is it different than the affidavit?

It's certified, and my understanding of the dictionary meaning of certification is that that's an attestation as to the truth of the statements contained therein.

That's the common definition.

So I'm assuming it's the equivalent of an affidavit.

So how is it different than the Melendez-Diaz lab report?

Mr. King: --Your Honor, and I understand, and I'll answer your question with regard to your expectation that the certification is the same as the affidavit.

It's not our position that they're exactly the same, but there are several--

Justice Sonia Sotomayor: Tell me why not.

Mr. King: --There are other distinguishing -- distinguishing features that are significant between the affidavit in Melendez-Diaz and the report in this case.

For one, the affidavit in Melendez-Diaz was prepared pursuant to an statute in Massachusetts that called for the preparation of an affidavit from the lab at some point in time after the actual test was done, and it was to be used specifically as an in-court statement to replace the live in-court testimony of the affiant.

In our case, the report being a public record was a record that is kept contemporaneously by the analyst in the lab, it is, in this case, the.21 is a single data point that is taken from the raw data in the machine and recorded on a standard document that's provided by the--

Justice Sonia Sotomayor: Can any--

Justice Antonin Scalia: And that was prepared just for fun, not for use in trial?

Mr. King: --No, Your Honor.

I believe that -- that that statement is planned to be used in trial, and--

Justice Antonin Scalia: So what difference does it make whether the statute requires it to be taken to be used at trial or whether the police send it over to be used at trial as a use of the State?

What difference does that make?

Mr. King: --Your Honor, I think the key is to look at the purpose of the analyst who was preparing the report, who is a public employee, who is just carrying out, as our court said, copying the information from the machine onto the report.

And so, that's significantly different than the amount of analysis that was done by -- by the -- the witness in--

Justice Sonia Sotomayor: --I'm sorry.

He's not simply looking at a number and putting it on a report.

He's certifying to certain things.

He's certifying to following certain steps, that the evidence wasn't tampered with.

He's certifying that he's complied with all the requirements of New Mexico law with respect to the report, so he's just not copying a number.

Mr. King: --That's correct, Your Honor.

In -- in this case the certification doesn't necessarily make the report testimonial.

There -- there are several other examples of -- of cases where -- where evidence is introduced at court that -- that have certifications.

For instance, it may be necessary for a public records custodian to provide a copy of a birth certificate in -- in a trial, and in that case, the custodian always has a certification that says I certify--

Justice Sonia Sotomayor: Isn't the difference between those two documents is that one was prepared primarily for the purposes -- this lab report, for prosecution purposes, and the birth certificate is not prepared for that?

It's prepared to mark the birth of a person, then it's used for many other purposes besides trial; is that correct?

Mr. King: --That is correct with regard to the birth -- birth certificate, Your Honor.

Justice Sonia Sotomayor: So tell me what makes this certificate not primarily for the purpose of use in the prosecution of an individual?

Would they have tested this blood if -- if it wasn't to prosecute him?

Mr. King: Your Honor, in -- in this case, no.

This -- this case is all about a sample that was sent to the lab to be tested for this.

But I think you made it clear in Michigan v. Bryant that -- that there might be a variety of purposes that should be analyzed in order to decide whether or not the statement is testimonial or not.

In this case, the purpose of the -- of the lab analyst is significantly different from the purpose of the police officer who requested the analysis.

The lab analyst does this for a living, and it's -- it's their public duty.

The lab in this case is -- is operated by the State Department of Health, scientific lab division, and -- and they do a variety of different kinds of analysis.

And so, the -- the analyst who does the test wouldn't necessarily have the same purpose in -- in creating their statement for that document.

As a matter of fact, the analyst would most likely be driven by the desire as a scientist--

Justice Sonia Sotomayor: Does he do any testing except for the police?

Mr. King: --Yes, Your Honor.

Justice Sonia Sotomayor: Who else do they test for?

Mr. King: This lab also tests for, in this particular case, the gas chromatograph analyses of blood alcohol, they test for the office of the medical examiner and -- and under New Mexico law, interestingly enough, the -- the defendant can also ask for a test.

They would use the same form to ask for this test.

So, the analysis might be being done for a defendant as well as for the State.

Justice Samuel Alito: Are these lab analysts civil service employees?

Are the lab analysts civil service employees?

Mr. King: Yes, Your Honor, they are.

They work for the New Mexico Department of Health.

Justice Samuel Alito: Is there any way in which your office or prosecutors or the police could cause them not to get promotions if they weren't producing the kind of lab reports that the police and the prosecution might like?

Mr. King: No, Your Honor, they could not.

As a matter of fact, there -- there is a separation between the operation of the Department of Health lab and the police that even extends to the point of a physical separation.

Police officers are not allowed into the lab area where -- where they are--

Justice Antonin Scalia: This analyst was fired, as I recall.

Was he fired, placed on administrative leave or something?

Mr. King: --No, Your Honor, the record indicates that -- that Mr. Caylor was not available for court because he was on leave without pay, which--

Justice Antonin Scalia: On leave without pay?

Mr. King: --Uh-huh.

Justice Antonin Scalia: And do we know why it was leave without pay?

Mr. King: We don't know why, Your Honor.

Justice Antonin Scalia: Does the defense know why it was leave without pay?

Could the defense have found out in cross-examination that the reason he was leave without pay because he was -- had shown himself to be incompetent, and they were in the process of firing him?

I don't know whether that's true, but wouldn't that be important to the defense?

Mr. King: Your Honor, I -- I think that the defense would like to know the answer to that question.

Justice Antonin Scalia: And didn't -- and didn't the prosecution intentionally set it up this way so that this person would not have to testify, so that he could not be cross-examined?

Isn't that why they sent the substitute to testify?

Mr. King: No, Your Honor.

In this case, that's -- that's not the case.

I -- the -- this case came about in a little bit of an unusual circumstance, because both sides had been negotiating a plea agreement and when the -- when the plea agreement was not successful, the defendant asked for the trial to be expedited and moved quickly to trial.

So the defendant didn't do as much discovery, I think, as you would normally do in a case like that, but--

Justice Antonin Scalia: I don't know what the facts are, but boy, it smells bad to me.

It really does.

And even if that was not the case, the mere possibility that it could have been the case shows why you should have to bring this person in if you want to introduce his testimony.

Mr. King: --Your Honor, I think that the key here is that if you would not look at the -- at any of the qualities of the declarant in deciding whether the statement is testimonial or not.

And so once -- once the Court makes the determination as to whether it is testimonial or not, you wouldn't -- even if you would like to ask those questions, you wouldn't have the opportunity to ask those questions.

In this case, factually, it might also be that Mr. Caylor was on unpaid leave because he had run out of his regular leave time, and he decided to do that.

We -- it would all be speculation--

Justice Antonin Scalia: I agree that whether it's testimonial does not depend upon whether there's skullduggery or not, but the possibility of skullduggery, even in machine -- machine situations such as this, is a good reason for saying this is testimonial.

Mr. King: --Your Honor, I think that's why it's -- it's important that this is a public records case, because that is one of the assumptions that courts have made for hundreds of years with regard to the fact that there is -- there is a duty by the person who's taking down the information to -- to observe in a regular manner, to record in a regular manner, and so that's important here.

Justice Ruth Bader Ginsburg: That was the principal thrust of your brief, that this isn't testimonial at all.

You have not said because it was unsworn, because you recognize the certification is the same, but you're trying to equate it to a business record, public record?

Mr. King: Yes, Your Honor.

Justice Ruth Bader Ginsburg: You do have the hurdle that this record was created for a specific purpose.

It was created to provide evidence for use in a criminal prosecution.

Mr. King: Your Honor, I don't believe that that is the only purpose that this form 705 could be used for.

It is the common purpose for this form, but it is a form that the lab uses in every circumstance.

And indeed, as I said, in New Mexico law, the defendant can ask for a second test.

They can have that done.

It's done at the State's expense.

They can have it done at any laboratory that they want to.

But if they have the report done at the State lab, and they're entitled to have that done, they would utilize the same form.

Chief Justice John G. Roberts: Well, does the--

Justice Elena Kagan: Well, what are the other--

Chief Justice John G. Roberts: --Does the analyst know whether he's being asked to do one for the prosecution or the defendant?

Mr. King: Not necessarily, Your Honor.

I -- I actually don't know the answer to that specifically except that the form -- and if you look at it, it's in the Joint Appendix -- does have some information in part A that -- that indicates that there is a police officer that -- that sent the test to the lab.

There's a nurse that did that in this case.

Chief Justice John G. Roberts: Oh, so they would know the difference, right?

Mr. King: They -- I think that the same information would be on the form whether the defendant submitted it or whether the -- or whether the prosecution submitted it, and--

Justice Antonin Scalia: Well, not the same information.

One would say the police submitted it and the other one would say the defendant submitted it, right?

Mr. King: --Your Honor--

Justice Antonin Scalia: So if the police submitted it, the -- the person doing the -- the test would know that the police submitted it, I assume.

Mr. King: --If you look at the form, Your Honor, it would have the same information, but we're not -- we're not here today arguing that the analyst wouldn't know that the police submitted this form.

But it is an arm's length request, and once again, the Court addressed that in your most recent case, in Michigan v. Bryant, I believe because the -- the question is whether or not there was an interrogation.

One of the key questions is whether there was an interrogation.

This clearly does not look like a case where there was an interrogation by the police.

It was a request on a standard form that was -- that was sent.

And so the purpose test, it appears from Michigan v. Bryant, would not even apply in cases where there's not a police interrogation.

Justice Antonin Scalia: Why is a key question whether this was an interrogation?

Does the Confrontation Clause apply only to confrontations?

To interrogations?

I mean, if a -- if a witness, before the police ask any questions, blurts out, you know, "Jones did it", can that statement get in because it has not been in response to an interrogation?

Mr. King: Your Honor, the analysis would be somewhat different.

That's the point, is that--

Justice Antonin Scalia: It would be different because interrogation doesn't make any difference.

That is not the condition for the application of the -- of the Confrontation Clause.

Mr. King: --Your Honor, we -- it appears that it does make some difference with regard to Michigan v. Bryant, and it's new to all of us.

Justice Antonin Scalia: If it were an interrogation, the factors mentioned in Michigan v. Bryant would be relevant, presumably, but since this wasn't an interrogation, I don't see how that has any -- any relevance whatever.

Mr. King: Well, the relevance, Your Honor, I think, is since it's not an interrogation, then -- then you have to look at, and I think the Court has set this out, you have to look at the nature of the evidence and to make a determination as to whether the evidence that's being presented is merely a substitute for live, in-court testimony.

And there, back to the difference between the affidavit in Melendez-Diaz and the report in this case is, in our report, even if Mr. Caylor had been at the trial and on the stand, it would have been necessary to have the report as well.

I think Justice Ginsburg raised this point, is that six months after the examination was done, to cross-examine the analyst and ask him, do you remember what the result was six months ago from this one test out of a hundred that he ran, he will not remember without looking at the report.

The report is the best evidence in this case to prove the point that is being made here, and--

Justice Antonin Scalia: Well, he'd look at the report and say, gee, I don't remember; you know, I do a lot of these reports.

But then the prosecution in direct would say, well, how do you do them?

And he would say, I always do this, I always do that, I always do the other thing.

Did you do it in this case?

Well, I don't specifically remember this case, but I always do it.

And that's the testimony that would go to the jury.

It would be pretty persuasive.

Not as good as if he did remember.

Mr. King: --That's correct, Your Honor, and so that's why the analysis of whether this is testimonial or not is such an important analysis, because if the -- the reasoning that the Court has had for all of the hearsay exceptions, for excited utterances or, in this case, for a public record, would look at whether or not that evidence was the best evidence to support the truth-finding purpose of the trial.

That's our -- that's our analysis, at least, Your Honor.

And what we are arguing in this case is that there is no difference between Mr. Caylor transferring the.21 data from the machine to the piece of paper than there would be if you took a photograph, for instance, of the machine data and--

Justice Sonia Sotomayor: So why did you give the data to the analyst at trial?

If there wasn't a more persuasive power in the lab certification, why didn't you just have the new expert look at the printout from the graph and say, this is what it says?

Mr. King: --Procedurally, in this case, Your Honor, this -- the trial at the District Court level occurred before the Court's opinion in Melendez-Diaz.

And so I think that at this point in time, that it would be more normal behavior for the -- for the State to present the raw data as well.

In this case, Mr. Razatos--

Justice Sonia Sotomayor: That's that as well.

Don't you introduce the lab report because it -- it gives more credence to the reliability of the result?

Because he's certifying that he followed certain procedures, that he did certain things, that the sample wasn't tampered with?

Mr. King: --Yes, Your Honor.

Justice Sonia Sotomayor: Is it -- you're looking for that testimony, correct?

You're looking, at trial, to that testimony to bolster the test?

Mr. King: Not using testimony in the sense that we're talking about testimony here.

I mean, you might want that -- very well want that evidence in, not different from other cases where if you had a -- it was necessary to submit the judgment of a felony, for instance, to show that a person in a later trial was a felon with -- a felon in possession of a firearm, you would have a certification from the court clerk that would say, I certify that the copy of this document that I'm submitting to the court is a true copy of -- that's also not testimonial from -- for the purposes of the Confrontation Clause I don't believe.

Justice Stephen G. Breyer: You might want that in order to show the machine says X, Y, Z, but that's only as good as the stuff that was put into it.

So you're going to have to show that this was his blood put into it.

And many, many people might have handled it, and there might be a routine so that they all check a box when it's sealed and they get it.

Is it your understanding if you lose these cases -- this case that you then have to take into court all those people?

Mr. King: That's certainly a concern, Your Honor.

I -- if you look at this document, there are six or seven people who have certifications on the -- on the dire -- different statements on the document.

There are three certifications; there's one from the -- from the woman who takes the samples into the lab that says she received the samples; there's this one from Mr. Caylor; there's one from -- from the reviewing analyst who reviews it; and I gather that the -- that the Petitioner is only challenging the -- that one certification from -- from -- from Mr. Caylor.

Justice Antonin Scalia: The chain of custody wasn't -- wasn't contested here, was it?

Mr. King: It was not.

And this document--

Justice Antonin Scalia: Is it often contested?

My impression is it's not very often contested.

Mr. King: --I'm not aware of it being contested often, Your Honor, I -- and this form I think is one of the things in New Mexico that really helps with that.

The reason that the court submitted the form is that you have everything relating to the chain of evidence on -- on one document, and -- and so indeed a lot of those statements really help--

Justice Stephen G. Breyer: Yes, but the reason I asked the question is because I don't think it is normally contested.

It's normally a business record of some kind.

However, what I was looking for is a distinction, because in the future I don't see why it wouldn't be contested, unless there's a distinction.

Mr. King: --Yes, Your Honor, and I think that the distinction is that in this case the -- the analyst is not essentially a party to the action.

The analyst works arm's-length transaction from -- from the -- from the police and from the prosecutors, and so he's not part of the prosecution team, is -- is how I've been thinking about it.

Justice Antonin Scalia: General, I know your State takes a different view of it or you wouldn't be here, but aren't there are a number of States that -- that do provide the testimony of the technician, who do require the technician to come in and -- and testify?

Mr. King: Your Honor, I believe that there are other States that have statutes that -- that have different ways of presenting evidence.

Justice Antonin Scalia: And have they had, to your knowledge, serious problems about defendants contesting chain of custody simply because this other thing is required?

Again, I'm -- I'm not aware that that's been a problem.

I think it's a boogeyman.

Mr. King: Your Honor, we -- we understand that -- that the -- that the burden on the State is -- is not an issue that comes directly into the analysis relating to the Confrontation Clause.

I -- in New Mexico, for instance, one of the problems that we have is that -- is that the lab's centrally located in Albuquerque and the -- and in this case the trial was in San Juan County, so -- so the witness has to drive for about 3 hours to get to where the courthouse is.

So that's sort of different in New Mexico than, say, in Massachusetts or something like that.

And -- and even for 10 minutes worth of testimony, they might have to drive 6 hours and take a whole day out of the lab.

So it -- it is a problem that -- that is there, but I don't think that it is the seminal issue that--

Justice Stephen G. Breyer: Are there States -- are there States that do require a -- a -- a prosecutor to produce everyone who has handled something in a chain of custody at a -- at a laboratory, a criminal -- you know, normal business?

Are there States that do require that?

If so, could you tell me a couple, because I--

Mr. King: --Your Honor, I'm not aware of any State that requires that everyone in the chain of custody appear in -- in trial.

It is indeed normally up to the prosecutor with regard to chain of custody to determine who -- who is going to be appearing.

Justice Stephen G. Breyer: --What about medical reports that are aimed at a particular known victim of a crime and thus will end up in trial?

For example, a graph, a graph which the nurse keeps, which is a statement by the nurse that the patient's temperature on such and such a day was 98.6 or whatever, and normally that graph would be introduced; but are there any States that wouldn't require -- would say, oh, no, you have to produce the nurse?

You have to produce the doctor for all medical records?

Which of course, are known by the keeper that they will be used at the criminal trial.

Are there any States that require that?

Mr. King: There are none that I'm aware of, Your Honor.

I -- I don't -- I haven't--

Justice Stephen G. Breyer: Are there any States that require ordinary business records perhaps of the most ordinary kind, which always are statements that somebody did something on a particular day?

When those business records happen to be kept before with the knowledge that they'll probably be introduced at the trial, are there States that require the man or woman who made the business record to come into court?

Mr. King: --No, Your Honor, and I think that's the point of all of those.

State law has their -- their hearsay law that -- that analyzed whether those statements are admissible.

Justice Antonin Scalia: Well, I -- I don't think that's an accurate response, at least if you include the qualification that Justice Breyer put in the question, which is that the records were kept with the knowledge that they would be introduced in -- in criminal trials.

I mean, you can say that all the records of labs -- let's assume there's a -- there's a police lab which -- which only does police testing of blood.

Those would be business records of the lab, but they certainly would not be introducible just because they're business records.

If the record is made for the use in prosecution, surely it's -- it doesn't come under the business records exception, or else we wouldn't be here today.

Mr. King: Your Honor, I think the hypothetical that -- that you say really shows where the line is.

If -- if the lab is a police lab and only doing the analysis for the police, then they -- they look a lot more like a party to the -- to the lawsuit, and certainly the hearsay exceptions have made it clear that even though observations are -- are generally -- that are public records are generally allowed, that observations by police officers are not.

And -- and so--

Justice Antonin Scalia: It's an independent lab and police always send it to this independent lab, but in fact it's an independent business, it makes a profit; but all the stuff it does it knows is going to be used at trial.

That wouldn't be admissible, would it?

Even though it's a perfectly normal business record.

Mr. King: --Your Honor, I think that that depends on -- on how you look at the purpose and whose purpose it is that -- that you're analyzing.

Now first off that, would assume that the purpose test applies in this case, and it seems to me since Michigan v. Bryant that the purpose test may not apply to these kinds of cases where -- where there's not a police interrogation.

But if -- if that is the case and the purpose test applies, then it -- it also appears to me that the -- that the test now requires that -- that you look not just at the purpose of the policeman who -- who's asking the question, but that you look at the purpose of the declarant, and in this case the purpose of the labs clearly is -- is a purpose just to -- to get the sample, do a good analysis, and -- and report that analysis to, in New Mexico's case, both parties.

Justice Sonia Sotomayor: Counsel--

Mr. King: The analysis that comes from our State lab goes not only to the prosecution but also to the defendant.

Justice Sonia Sotomayor: --General--

Justice Ruth Bader Ginsburg: General, we seem to be describing -- this case seemed rather particular, that is, there was no objection by New Mexico to having an analyst show up, Razatos; so -- so he had to travel however long he said.

It's just a question of one employee's time rather than the other.

But -- and then you described how simple this thing was, you just put it in a machine, you would get out a piece of paper.

Why didn't New Mexico have this -- there was an additional sample that could have been -- it would have been simple to just retest it.

Having the witness come to the court, why don't you arm him with the additional test, and then there would be no controversy?

Mr. King: Your Honor, one of the problems in New Mexico would be since -- since the court believed that -- that that report was -- was admissible, if they did a second sample and -- and tried to submit that it would be cumulative evidence, and probably would be kept out by -- by the rule in New Mexico in that case.

So Mr. Razatos did have an important purpose at this trial.

In New Mexico you still I believe have to have a witness who -- who can authenticate the document to bring the document in.

It might not have had to have been Mr. Razatos in this case.

Justice Anthony Kennedy: Well, let's say that this Court holds that the Confrontation Clause requires the presence of the actual analyst to testify about the sample.

Is there anything in the law that says that that testimony is suddenly excused, and you do not need the analyst if there's another sample available for the defendant to test?

That's not the rule, is it?

Mr. King: It's not the rule, Your Honor, although one of the things that we pointed out is that -- is that the State always keeps two samples, that the defendant has the right statutorily in New Mexico to -- to have a sample retested at a lab--

Justice Anthony Kennedy: But I'm saying that analytically that does not bear on the question whether or not the sample that's introduced by the State requires the -- the analyst to be present.

They're just unrelated.

Mr. King: --Correct, Your Honor.

Justice Anthony Kennedy: That may -- that may show that the confrontation rule is a silly rule.

But it doesn't -- but it -- there's -- assuming confrontation is required, it's not excused--

Mr. King: Yes.

Justice Anthony Kennedy: --by the presence of another sample.

Justice Ruth Bader Ginsburg: I -- I don't follow that because we have a substitute now.

Caylor is out of the picture; we know that it is the defendant's blood because everything else is the same, and there's this vial that has a certain amount of blood and there's a certain amount left over, so it's not cumulative, because Caylor's out of the picture.

It is the defendant's blood that has been lab tested by another analyst.

Mr. King: I'm sorry, Your Honor, in -- in your hypothetical, if -- if the State knew far enough ahead of time that they -- they would not be able to submit the -- the -- that analyst's results, they could always -- because the blood sample continues to exist, they could always retest that and -- and have another witness who could do that.

Depending on how the Court rules in this case, it might be that States will be required to do that.

But at this point in time under -- under the current jurisprudence, it -- it didn't appear to the State that they needed to retest the sample, and I think you have to worry a little bit about -- about how many people you might indeed have to have come into court and testify if -- if the State -- if the burden on the State is that you have to -- you have to sample twice just in case you're going to lose one of your analysts, I -- I think that that does indeed put a great burden on the State to do that.

And so--

Justice Antonin Scalia: General, I -- I don't want to eat up your -- your little remaining time, I think you can answer yes or no.

Does New Mexico assert the same rule as applicable to ballistics testing?

Mr. King: --No, Your Honor.

Justice Antonin Scalia: Why?

Mr. King: I think that you have to do the analysis in each kind of statement that you're looking at, Your Honor, to determine whether or not the statement that's -- that's being made and that's being proposed for trial is a substitute for live in-court testimony.

And so, with regard to ballistics, you know, you would be looking at a little bit different set of facts.

But in this case the facts are that -- that the gas chromatograph gave us a printout that said that the -- that the level of alcohol in the blood is.21 grams per 100 milliliters, Mr. Caylor transferred that to a form, and that's what we are putting in.

I -- I think that -- that it proves the point that I'm talking about, in a ballistics analysis, you would have to have some analysis and someone to reach a conclusion.

And it's that that sets Melendez-Diaz apart from this case, is -- is that there was -- that there was some analysis by -- by -- by the -- the declarant in that case.

And in the ballistics cases I think, most often, you would find that.

Now, if the -- if in the ballistics case you just took a photograph of the bullet and wanted to bring that into the court and say here's what the bullet looks like, the jury then could make a determination whether they think that that bullet appears to be the same as the other.

That wouldn't be covered by the Confrontation Clause.

Justice Antonin Scalia: Certainly not.

Mr. King: And -- and--

Justice Antonin Scalia: But you -- you -- you think the result would be a -- the same if we could develop a machine that you put the bullet in and -- and -- and -- that's been fired from this gun, and the murder bullet, and the machine goes, blah, blah, blah, and it spits out, you know, 99 percent, 99.9 percent match, that would be okay?

Mr. King: --May I answer the question, Your Honor?

Chief Justice John G. Roberts: Sure.

Mr. King: In -- in that case, if -- if the machine were able to do all of that, the machine essentially is giving you the best evidence, yes, I believe that that would be the case.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Fisher, you have 2 minutes remaining.

REBUTTAL ARGUMENT OF JEFFREY L. FISHER ON BEHALF OF THE PETITIONER

Mr. Fisher: Thank you.

Let me try to make four quick points.

First, Justice Alito, I said the first objection was at JA 40, it's actually 44-45 in the Joint Appendix.

With regard to the State's argument about whether this document is testimonial, I would simply urge the Court to take a very close look at the lab report itself.

It's at JA 62.

At the top it says, Mr. Chief Justice, in response to your question, arresting officer identification, and the officer writes, check for blood alcohol concentration.

That's the order to the lab.

If you look at the bottom in the certification of analyst, he certifies that the following is true and correct, signs his name, and perhaps the most critical thing is at the very bottom, the actual rules of the New Mexico evidence law and criminal procedure law are referenced.

So, it's exactly like Melendez-Diaz.

This is a document that is expressly prepared for substitute live testimony.

Justice Antonin Scalia: Not under oath, though, that's the only difference?

Mr. Fisher: Not under oath if a certification is actually different than an oath, that just makes this worse, as in Crawford this Court said that it would be implausible that trial by affidavit would be prohibited but trial by unsworn affidavit would be okay.

Justice Anthony Kennedy: Do the rules of criminal -- do the rules of criminal procedure in New Mexico say it should be prima facie evidence?

Mr. Fisher: They say much the same thing.

There are -- there are several rules referenced at the bottom that all make this automatically admissible, notwithstanding the hearsay rule to prove the truth of the matter asserted.

With respect to Justice Ginsburg's question about retesting, you are exactly right.

The State had many choices in the case -- in this case about how to proceed.

But if it wanted Mr. Razatos to be its witness, all it had to do was have him do a -- retest it and write a new report and have him be the witness.

There is no reason it would have to introduce Mr. Caylor's report then and come up against any State law issue.

Mr. Razatos could have been the live witness.

Chief Justice John G. Roberts: Well, it depends on when they do it, of course.

I mean, you have the right to look at their evidence presumably so -- so far in advance of trial, whatever, and if they had to get a new -- new technician, that would have to put off the trial--

Mr. Fisher: And I think that -- I'm sorry.

I think that goes to my last point, which is, Justice Breyer, you're talking about States that do this -- I'll combine my answer to these two things.

A continuance would have been perfectly -- perfectly appropriate if that scenario had arisen, Mr. Chief Justice, and that's what -- one thing the public -- Public Defender Service brief it talks about 23 -- 26 jurisdictions encompassing 23 different States that follow the rule that we're advocating today.

And it -- we're not asking for more witnesses.

It's important that we're -- this isn't a multiple witness problem, we're just asking for a different witness.

Chief Justice John G. Roberts: --Thank you, counsel.

Mr. Fisher: In other words, the State just brought the wrong witness.

Thank you.

Chief Justice John G. Roberts: Thank you, counsel.

The case is submitted.

Transcript: 

Justice Ruth Bader Ginsburg: The first is Bullcoming against New Mexico.

The Sixth Amendment provides that a defendant in a criminal proceeding shall have the right to be confronted with the witnesses against him.

In the 1980 decision, Ohio v. Roberts, this Court interpreted the Sixth Amendment's Confrontation Clause to allow the admission of an absent witness's testimonial statements if the presiding judge finds the statements reliable.

In a pathmarking 2004 decision, Crawford v. Washington, we overruled Ohio v. Roberts, fidelity to the Confrontation Clause, Crawford held, permits the admission of an absent witness' testimonial statements only when two conditions are met.

First, the witness is unavailable.

Second, the defendant has had a prior opportunity to cross-examine.

Five years after Crawford, in Melendez-Diaz v. Massachusetts, we held that a laboratory report identifying a substance as cocaine ranked as “testimonial” for purposes of the Confrontation Clause.

Absent stipulation, Melendez-Diaz 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, we decide who that live witness must be.

Petitioner Donald Bullcoming was arrested on charges of driving while intoxicated or DWI.

Bullcoming's prow took place after our decision in Crawford, but before we decided Melendez-Diaz.

Principle evidence against Bullcoming was a laboratory report certifying that his blood alcohol concentration was well above the threshold for aggravated DWI.

When trial began, the prosecution announced that it would not call as a witness Curtis Caylor, the analyst who performed the test on Bullcoming's blood sample.

In lieu of Caylor who had been placed on unpaid leave or undisclosed reasons, the State called another analyst, Gerasimos Razatos.

Razatos was familiar with the laboratory's testing procedures but had neither participated in nor observed the test on Bullcoming's blood sample.

Over Bullcoming's objection, the trial court admitted the report and the jury convicted him of aggravated DWI.

On appeal, the New Mexico Supreme Court took account involved in very recent decision in Melendez-Diaz.

Based on Melendez-Diaz, New Mexico's High Court held that the blood alcohol report was indeed testimonial.

Nevertheless, that Court further held the prosecution was not required to call certifying analyst Caylor, for lab analyst Razatos' testimony supplies to satisfy the Confrontation Clause.

The New Mexico Supreme Court's decision prompted Bullcoming's petition asking, "Does the Confrontation Clause permit the prosecution to introduce a lab report containing a testimonial certification made for the purpose of proving a particular fact at trial through the in-court testimony of a scientist who did not sign the certification or performed or observed the reported test."

We hold that surrogate testimony of that order does not meet the constitutional requirement.

The accused 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.

The New Mexico Supreme Court port -- portrayed certifying analyst Caylor as a mere scrivener who simply copied and placed in the report a machine-generated number, but Caylor affirmed more than that.

He certified to his receipt of Bullcoming's blood sample intact with the seal unbroken.

He's checked to make sure the forensics report number and the sample number corresponded.

His performance on Bullcoming's sample of a particular test adhering to the prescribed protocol and the absence of many circumstance casting doubt on the integrity of the sample or validity of the analysis.

These representations relate to past events on human actions not revealed in raw machine-produced data.

They are often subjects for cross-examination.

Surrogate testimony of the kind Razatos was equipped to give could not convey what Caylor knew or observed about the events his certification concerned, nor could such surrogate testimony expose any lapses or lies on the certifying analyst's part.

A particular note, Razatos knew nothing about why Caylor had been placed on unpaid leave, an issue on which cross-examine -- examination might have been enlightening.

Finally, we reject the State's argument that no Confrontation Clause question ever arose in this case because the blood alcohol analysis reports are non-testimonial in character.

Melendez-Diaz left no room for that argument.

To the certificates at issue in Melendez-Diaz were notarized while the report introduced at Bullcoming's trial was unsworn.

But it would make no sense to construe the Confrontation Clause to render inadmissible only sworn affidavits while leaving admission of formal, but unsworn ex parte statements perfectly okay.

And finally, adhere to Crawford and reiterate today, the Sixth Amendment 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.

We, therefore, reverse the New Mexico Supreme Court's judgment and remand for a determination whether the Confrontation Clause error at Bullcoming's trial was harmless, a question on which we express in our view.

Justice Sotomayor has filed an opinion concurring in part.

Justice Kennedy has filed a dissenting opinion in which the Chief Justice, Justice Breyer and Justice Alito have joined.