Lead Opinion
delivered the opinion of the Court, except as to Part IV and footnote 6.
In Melendez-Diaz v. Massachusetts, 557 U. S. 305 (2009), this Court held that a forensic laboratory report stating that a suspect substance was cocaine ranked as testimonial for purposes of the Sixth Amendment’s Confrontation Clause. The report had been created specifically to serve as evidence in a criminal proceeding. Absent stipulation, the Court ruled, the prosecution may not introduce such a report without offering a live witness competent to testify to the truth of the statements made in the report.
In the case before us, petitioner Donald Bullcoming was arrested on charges of driving while intoxicated (DWI). Principal evidence against Bullcoming was a forensic laboratory report certifying that Bullcoming’s blood-alcohol concentration was well above the threshold for aggravated DWI. At trial, the prosecution did not call as a witness the analyst who signed the certification. Instead, the State called another analyst who was familiar with the laboratory’s testing procedures, but had neither participated in nor observed the test on Bullcoming’s blood sample. The New Mexico Supreme Court determined that, although the blood-alcohol analysis was “testimonial,” the Confrontation Clause did not require the certifying analyst’s in-court testimony. Instead,
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 pickup truck at an intersection in Farmington, New Mexico. When the truckdriver exited his vehicle and approached Bullcoming to exchange insurance information, he noticed that Bullcoming’s eyes were bloodshot. Smelling alcohol on Bullcoming’s breath, the truck-driver told his wife to call the police. Bullcoming left the scene before the police arrived, but was soon apprehended by an officer who observed his performance of field sobriety tests. Upon failing the tests, Bullcoming was arrested for driving a vehicle while “under the influence of intoxicating liquor” (DWI), in violation of N. M. Stat. Ann. § 66-8-102 (2004).
Because Bullcoming refused to take a breath test, the police obtained a warrant authorizing a blood-alcohol analysis. Pursuant to the warrant, a sample of Bullcoming’s blood was drawn at a local hospital. To determine Bullcoming’s blood-alcohol concentration (BAC), the police sent the sample to the New Mexico Department of Health, Scientific Labora
' SLD’s report contained in the top block “information . . . filled in by [the] arresting officer.” Ibid, (capitalization omitted). This information included the “reason [the] suspect [was] stopped” (the officer checked “Accident”), and the date (“8.14.05”) and time (“18:25 PM”) the blood sample was drawn. Ibid, (capitalization omitted). The arresting officer also affirmed that he had arrested Bullcoming and witnessed the blood draw. Ibid. The next two blocks contained certifications by the nurse who drew Bullcoming’s blood and the SLD intake employee who received the blood sample sent to the laboratory. Ibid.
Following these segments, the report presented the “certificate of analyst,” ibid, (capitalization omitted), completed and signed by Curtis Caylor, the SLD forensic analyst assigned to test Bullcoming’s blood sample, id., at 62, 64-65. Caylor recorded that the BAC in Bullcoming’s sample was 0.21 grams per hundred milliliters, an inordinately high level. Id., at 62. Caylor also affirmed that “[t]he seal of th[e] sample was received intact and broken in the laboratory,” that “the statements in [the analyst’s block of the report] are correct,” and that he had “followed the procedures set out on the reverse of th[e] report.” Ibid. Those “procedures” instructed analysts, inter alia, to “retai[n] the sample container and the raw data from the analysis,” and to “not[e] any circumstance or condition which might affect the integrity of the sample or otherwise affect the validity of the analysis.” Id., at 65. Finally, in a block headed “certificate of reviewer,” the SLD examiner who reviewed Caylor’s analysis certified that Caylor was qualified to conduct the BAC test, and that the “established procedure” for handling and analyzing Bullcoming’s sample “ha[d] been followed.” Id., at 62 (capitalization omitted).
B
The case was tried to a jury in November 2005, after our decision in Crawford v. Washington,
Bullcoming’s counsel opposed the State’s proposal. Id., at 44-45. Without Caylor’s testimony, defense counsel maintained, introduction of the analyst’s finding would violate Bullcoming’s Sixth Amendment right “to be confronted with
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.”
In light of Melendez-Diaz, the New Mexico Supreme Court acknowledged that the blood-alcohol report introduced at Bullcoming’s trial qualified as testimonial evidence. Like the affidavits in Melendez-Diaz, the court observed, the report was “functionally identical to live, in-court testimony, doing precisely what a witness does on direct examination.” 147 N. M., at 494,
First, the court said certifying analyst Caylor “was a mere scrivener,” who “simply transcribed the results generated by the gas chromatograph machine.” 147 N. M., at 494-495,
We granted certiorari to address this question: Does the Confrontation Clause permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification.
I
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,
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 655. Nor did Bullcoming have an opportunity to cross-examine Caylor. Crawford and Melendez-Diaz, therefore, weigh heavily in Bullcoming’s favor. The New Mexico Supreme Court, however, although recognizing that the SLD report was testimonial for purposes of the Confrontation Clause, considered SLD analyst Razatos an adequate substitute for Caylor. We explain first why Razatos’ appearance did not meet the Confrontation Clause requirement. We next address the State’s argument that the SLD report ranks as “nontestimonial,” and therefore “[was] not subject to the Confrontation Clause” in the first place. Brief for Respondent 7 (capitalization omitted).
A
The New Mexico Supreme Court held surrogate testimony adequate to satisfy the Confrontation Clause in this case because analyst Caylor “simply transcribed the resul[t] generated by the gas chromatograph machine,” presenting no interpretation and exercising no independent judgment. 226 R 3d, at 8. Bullcoming’s “true ‘accuser,’” the court said, was the machine, while testing analyst Caylor’s role was that of “mere scrivener.” Id., at 9. Caylor’s certification, how
Caylor certified that he received Bullcoming's blood sample intact with the seal unbroken, that he checked to make sure that the forensic report number and the sample number “correspond[ed],” and that he performed on Bullcoming’s sample a particular test, adhering to a precise protocol. App. 62-65. He further represented, by leaving the “[Remarks” section of the report blank, that no “circumstance or condition . . . a£fect[ed] the integrity of the sample or . . . the validity of the analysis.” Id., at 62, 65. These representations, relating to past events and human actions not revealed in raw, machine-produced data, are meet for cross-examination.
The potential ramifications of the New Mexico' Supreme Court's reasoning, furthermore, raise red flags. Most witnesses, after all, testify to their observations of factual conditions or events, e. g., “the light was green,” “the hour was noon.” Such witnesses may record, on the spot, what they observed. Suppose a police report recorded an objective fact — Bullcoming’s counsel posited the address above the front door of a house or the readout of a radar gun. See Brief for Petitioner 35. Could an officer other than the one who saw the number on the house or gun present the information in court — so long as that officer was equipped to testify about any technology the observing officer deployed and the police department’s standard operating procedures? As our precedent makes plain, the answer is emphatically “No.” See Davis v. Washington,
B
Recognizing that admission of the blood-alcohol analysis depended on “live, in-court testimony [by] a qualified analyst,” 147 N. M., at 496,
More fundamentally, as this Court stressed in Crawford, “[t]he text of the Sixth Amendment does not suggest any open-ended exceptions from the confrontation requirement to be developed by the courts.”
A recent decision involving another Sixth Amendment right — the right to counsel — is instructive. In United States v. Gonzalez-Lopez,
In short, when the Slate elected to introduce Gaylor’s certification, Caylor became a witness Bullcoming had the right to confront. Our precedent cannot sensibly be read any other way. See Melendez-Diaz,
III
We turn, finally, to the State s contention that SLD s blood-alcohol analysis reports are nontestimonial in character, therefore no Confrontation Clause question even arises in this case. Melendez-Diaz left no room for that argument, the New Mexico Supreme Court concluded, see 147 N. M., at 494,
In Melendez-Diaz, a state forensic laboratory, on police request, analyzed seized evidence (plastic bags) and reported the laboratory’s analysis to the police (the substance found in the bags contained cocaine).
The State maintains that the affirmations made by analyst Caylor were not “adversarial” or “inquisitorial,” Brief for Respondent 27-33; instead, they were simply observations of an “independent scientis[t]” made “according to a non-adversarial public duty,” id., at 32-33. That argument fares no better here than it did in Melendez-Diaz. A document created solely for an “evidentiary purpose,” Melendez-Diaz clarified, made in aid of a police investigation, ranks as testimonial.
Distinguishing Bullcoming’s case from Melendez-Diaz, where the analysts’ findings were contained in certificates “sworn to before a notary public,” id., at 308, the State emphasizes that the SLD report of Bullcoming’s BAC was “un-sworn.” Brief for Respondent 13; post, at 676 (“only sworn statement” here was that of Razatos, “who was present and [did] testif[y]”). As the New Mexico Supreme Court recognized, “ The absence of [an] oath [i]s not dispositive’ in determining if a statement is testimonial.” 147 N. M., at 494,
In all material respects, the laboratory report in this case resembles those in Melendez-Diaz. Here, as in Melendez-
In sum, the formalities attending the “report of blood alcohol analysis” are more than adequate to qualify Caylor’s assertions as testimonial. The absence of notarization does not remove his certification from Confrontation Clause governance. The New Mexico Supreme Court, guided by Melendez-Diaz, correctly recognized that Caylor’s report ‘Tell within the core class of testimonial statements,” 147 N. M., at 493,
IV
The State and its amici urge that unbending application of the Confrontation Clause to forensic evidence would impose an undue burden on the prosecution. This argument, also advanced in the dissent, post, at 683, largely repeats a refrain rehearsed and rejected in Melendez-Diaz. See
New Mexico law, it bears emphasis, requires the laboratory to preserve samples, which can be retested by other analysts, see N. M. Admin. Code § 7.33.2.15(A)(4)-(6) (2010),
Notably, New Mexico advocates retesting as an effective means to preserve a defendant’s confrontation right “when the [out-of-court] statement is raw data or a mere transcription of raw data onto a public record.” Brief for Respondent 53-54. But the State would require the defendant to initiate retesting. Id., at 55; post, at 677 (defense “remains free to . . . call and examine the technician who performed a test”); post, at 681 (“free retesting” is available to defendants). The prosecution, however, bears the burden of proof. Melendez-Diaz,
Furthermore, notice-and-demand procedures, long in effect in many jurisdictions, can reduce burdens on forensic laboratories. Statutes governing these procedures typically “render . . . otherwise hearsay forensic reports admissible[,] while specifically preserving a defendant’s right to demand that the prosecution call the author/analyst of [the] report.” PDS Brief 9; see Melendez-Diaz,
Even before this Court’s decision in Crawford, moreover, it was common prosecutorial practice to call the forensic analyst to testify. Prosecutors did so “to bolster the persuasive power of [the State’s] case[,] . . . [even] when the defense would have preferred that the analyst did not testify.” PDS Brief 8.
We note also the “small fraction of... cases” that “actually proceed to trial.” Melendez-Diaz,
Tellingly, in jurisdictions in which “it is the [acknowledged] job of . . . analysts to testify in court. . . about their test results,” the sky has not fallen. PDS Brief 23. State
H» ^
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.
It is so ordered.
Notes
Justice Sotomayor and Justice Kagan join all but Part IV of this opinion. Justice Thomas joins all but Part IV and footnote 6.
Gas chromatography is a widely used scientific method of quantitatively analyzing the constituents of a mixture. See generally H. McNair & J. Miller, Basic Gas Chromatography (2d ed. 2009) (hereinafter McNair). Under SLD’s standard testing protocol, the analyst extracts two blood samploo and inserto them into vialo containing an “internal standard” — a chemical additive. App. 53. See McNair 141-142. The analyst then “cap[s] the [two] sample[s],” “erimp[s] them with an aluminum top,” and placeo the vialo into the gaa chromatograph machine. App. 53-54. Within a few hours, thio device produces a printed graph a chromatogram — along with calculations representing a software generated inter pretation of the data. See Brief for New Mexico Department 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 rocord[ing] the resultn,” App. 54, authoritative sources reveal that the matter is not so simple or certin. “In order to perform quantita tive analyses satisfactorily and . . . support the results under rigorous examination in court, the analyst must be aware of, and adhere to, good analytical prácticos and understand what is being done and why.” Stafford, Chromatography, in Principles of Forensic Toxicology 91, 114 (B. Levine 2d ed. 2006). See also McNair 137 (“Errors that occur in any step can invalidate the best chromatographic analysis, go attention must bo 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 erroro in laboratory tests for BAC levels arc human errora that occur cither 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 usj for example, that in neighboring Colorado, a single forensic laboratory produced at least 206 flawed blood alcohol readings over a throe-year span, prompting the diamisoal of several criminal prosecutions. See Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 32-33. An analyst had used improper amounts of the internal standard, causing the chromatograph machine systematically to in-
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. 305, 311, n. 1 (2009), “to decide what steps in the chain of custody arc so crucial as to require evidence; but what testimony ia introduced must (if the defendant objects) be introduced live.”
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.
The dissent makes plain that its objection is less to the application of the Court’s docisiono in Crawford and Melendez-Diaz to this case than to those pathmarking decisions themselves. See post, at 678 (criticizing the Crawford “line of cases” for rejecting “reliable evidence”); post, at 681, 684 (deploring “Crawford’s rejection of the [reliability-centered] regime of Ohio v. Roberts”).
In so ruling, the New Mexico Supreme Court explicitly overruled State v. Dedman,
To rank as “testimonial,” a statement must have a “primary purpose” of “establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution.” Davis v. Washington,
We do not question that analyot Caylor, in common with other analysts employed by SLD, likely would not recall a particular test, given the number of tests each analyst conducts and the standard procedure followed in
At Bullcoming’s trial, Rosatos acknowledged that “you don’t know un-Iodo you actually observe the analysis that someone else conducts, whether they followed th[e] protocol in every instance.” App. 59.
The dissent argues otherwise, reporting a 71% increase, from 2008 to 2010, in the number of subpoenas for New Mexico analysts’ testimony in impaired-driving cases. Post, at 683. 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, post, at 684, to several factors, among them, staff attrition, a state hiring freeze, a 15% increase in the number of blood samples received for testing, and “wildly” divergent responses by New Mexico District Attorneys to Melendez-Diaz. Brief for New Mexico Department 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.
As in Melendez-Diaz,
The dissent refers, selectively, to experience in Los Angeles, post, at 683, 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.miehigan.gov/msp/ 0,1607,7-123-1593_3800-15901 — ,00.html (in 2010, analysts provided testimony for approximately 1% of all tests).
Concurrence Opinion
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.
Under our precedents, the New Mexico Supreme Court was correct to hold that the certified BAC report in this case is testimonial.
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,
This is not the first time the Court has faced the question whether a scientific report is testimonial. As the Court explains, ante, at 663-664, in Melendez-Diaz v. Massachusetts,
As we explained earlier this Term in Michigan v. Bryant, “[i]n making the primary purpose determination, standard rules of hearsay... will be relevant.”
I
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,
In sum, I am compelled to conclude that the report has a “primary purpose of creating an out-of-court substitute for
B
After holding that the report was testimonial, the New Mexico Supreme Court nevertheless held that its admission was permissible under the Confrontation Clause for two reasons: because Caylor was a “mere scrivener,” and because Razatos could be cross-examined on the workings of the gas chromatograph and laboratory procedures. 147 N. M., at 494-496, 226 R 3d, at 8-10. The Court convincingly explains why those rationales are incorrect. Ante, at 659-663. 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 ease in which the State suggested an alternative purpose, much less an alternative primary purpose, for the BAC report. For example, the State has not claimed that the report was necessary to provide Bullcoming with medical treatment. See Bryant,
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
Third, this is not a case in which an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence. See Fed. Rule Evid. 703 (explaining that facts or data of a type upon which experts in the field would reasonably rely in forming an opinion need not be admissible in order for the expert’s opinion based on the facts and data to be admitted). As the Court notes, ante, at 662, the State does not assert that Razatos offered an independent, expert opinion about Bullcoming’s blood alcohol concentration. Rather, the State explains, “[a]side from reading a report that was introduced as an exhibit, Mr. Razatos offered no opinion about Petitioner’s blood alcohol content. . ..” Brief for Respondent 58, n. 15 (citation omitted). Here the State offered the BAC report, including Caylor’s testimonial statements, into evidence. We would face a different question if asked to determine the constitutionality of allowing an expert witness to discuss others’ testimonial statements if the testimonial statements were not themselves admitted as evidence.
Finally, this is not a case in which the State introduced only machine-generated results, such as a printout from a gas chromatograph. The State here introduced Caylor’s statements, which included his transcription of a blood alcohol concentration, apparently copied from a gas chroma-tograph printout, along with other statements about the
This case does not present, and thus the Court's opinion does not address, any of these factual scenarios.
* * *
As in Melendez-Diaz, the primary purpose of the BAC report is clearly to serve as evidence. It is therefore testimonial, and the trial court erred in allowing the State to introduce it into evidence via Razatos’ testimony. I respectfully concur.
Contrary to the dissent’s characterization, Bryant deemed reliability, as reflected in the hearsay rules, to be “relevant,”
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
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 678 (Kennedy, J., dissenting). Although in some instances formality could signal reliability, the dissent’s argument fails to appreciate that, under our Confrontation Clause precedents, formality is primarily an indicator of testimonial purpose. Formality is not the sole indicator of the testimonial nature of a statement because it is too easily evaded. See Davis v. Washington,
Dissenting Opinion
dissenting.
The Sixth Amendment Confrontation Clause binds the States and the National Government. Pointer v. Texas,
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 labo
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,
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 Melendez-Diaz, where the jury was asked to credit a laboratory’s findings based solely on documents that were “quite plainly affidavits,”
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 New Mexico Department 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 (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.
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.”
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,
Like reliability, other principles have weaved in and out of the Crawford jurisprudence. Solemnity has sometimes been dispositive, see Melendez-Diaz,
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.
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 378 (Thomas, J., concurring in judgment), id., at 379 (Scalia, J., dissenting), and id., at 395 (Ginsburg, J., dissenting); and ante, p. 647 (opinion of the Court), with ante, p. 668 (SOTO-MAYOR, 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 331 (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 393 (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 opin
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
In addition to preventing the State from conducting ex parte trials, Crawford’s rejection of the regime of Ohio v. Roberts,
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
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, 557 U. S., at 307-309, 327-329. 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
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 666-667 (plurality opinion). It is quite unrealistic, however, to think that this will take away from the defense the incentives to insist on having the certifying analyst present. There is in the ordinary case that proceeds to trial no good reason for defense counsel to waive the right of confrontation as the Court now interprets it.
Today’s opinion repeats an assertion from Melendez-Diaz that its decision will not “impose an undue burden on the prosecution. ” Ante, at 665 (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 Association 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. Prom 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
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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.