OPINION OF THE COURT
BULLCOMING V. NEW MEXICO
564 U. S. ____ (2011)
SUPREME COURT OF THE UNITED STATES
NO. 09-10876
DONALD BULLCOMING, PETITIONER
v. NEW
MEXICO
on writ of certiorari to the supreme court of new
mexico
[June 23, 2011]
Justice Ginsburg delivered the
opinion of the Court, except as to Part IV and footnote 6.*
In
Melendez-Diaz v.
Massachusetts, 557 U. S. ___ (2009), this Court held that
a forensic laboratory report stating that a suspect substance was
cocaine ranked as testimonial for purposes of the Sixth Amendment’s
Confrontation Clause. The report had been created specifically to
serve as evidence in a criminal proceeding. Absent stipulation, the
Court ruled, the prosecution may not introduce such a report
without offering a live witness competent to testify to the truth
of the statements made in the report.
In the case before us, petitioner Donald
Bullcoming was arrested on charges of driving while intoxicated
(DWI). Principal evidence against Bullcoming was a 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 participated in nor observed the test on Bullcoming’s blood
sample. The New Mexico Supreme Court determined that, although the
blood-alcohol analysis was “testimonial,” the Confrontation Clause
did not require the certifying analyst’s in-court testimony.
Instead, New Mexico’s high court held, live testimony of another
analyst satisfied the constitutional requirements.
The question presented is whether the
Confrontation Clause permits the prosecution to introduce a
forensic laboratory report containing a testimonial
certification—made for the purpose of proving a particular
fact—through the in-court testimony of a scientist who did not sign
the certification or perform or observe the test reported in the
certification. We hold that surrogate testimony of that order does
not meet the constitutional requirement. The accused’s right is to
be confronted with the analyst who made the certification, unless
that analyst is unavailable at trial, and the accused had an
opportunity, pretrial, to cross-examine that particular
scientist.
I
A
In August 2005, a vehicle driven
by petitioner Donald Bullcoming rear-ended a pick-up truck at an
intersection in Farmington, New Mexico. When the truckdriver exited
his vehicle and approached Bullcoming to exchange insurance
information, he noticed that Bullcoming’s eyes were bloodshot.
Smelling alcohol on Bullcoming’s breath, the truckdriver told his
wife to call the police. Bullcoming left the scene before the
police arrived, but was soon apprehended by an officer who observed
his performance of field sobriety tests. Upon failing the tests,
Bullcoming was arrested for driving a vehicle while “under the
influence of intoxicating liquor” (DWI), in violation of N. M.
Stat. Ann. §66–8–102 (2004).
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
Bullcoming’s blood-alcohol concentration (BAC), the police sent the
sample to the New Mexico Department of Health, Scientific
Laboratory Division (SLD). In a standard SLD form titled “Report of
Blood Alcohol Analysis,” participants in the testing were
identified, and the forensic analyst certified his finding. App.
62.
SLD’s report contained in the top block
“information … filled in by [the] arresting officer.”
Ibid. (capitalization omitted). This information included
the “reason [the] suspect [was] stopped” (the officer checked
“Accident”), and the date (“8.14.05”) and time (“18:25 PM”) the
blood sample was drawn.
Ibid. (capitalization omitted).
The arresting officer also affirmed that he had arrested Bullcoming
and witnessed the blood draw.
Ibid. The next two blocks
contained certifications by the nurse who drew Bullcoming’s blood
and the SLD intake employee who received the blood sample sent to
the laboratory.
Ibid.
Following these segments, the report presented
the “certificate of analyst,”
ibid. (capitalization
omitted), 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 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 “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 “established procedure” for handling and analyzing
Bullcoming’s sample “ha[d] been followed.”
Id., at 62
(capitalization omitted).
SLD analysts use gas chromatograph machines to
determine BAC levels. Operation of the machines requires
specialized knowledge and training. Several steps are involved in
the gas chromatograph process, and human error can occur at each
step.[
Footnote 1]
Caylor’s report that Bullcoming’s BAC was 0.21
supported a prosecution for aggravated DWI, the threshold for which
is a BAC of 0.16 grams per hundred milliliters, §66–8–102(D)(1).
The State accordingly charged Bullcoming with this more serious
crime.
B
The case was tried to a jury in
November 2005, after our decision in
Crawford v.
Washington,
541 U. S. 36 (2004), but
before
Melendez-Diaz. On the day of trial, the State
announced that it would not be calling SLD analyst Curtis Caylor as
a witness because he had “very recently [been] put on unpaid leave”
for a reason not revealed. 2010–NMSC–007, ¶8, 226 P. 3d 1, 6
(internal quotation marks omitted); App. 58. A startled defense
counsel objected. The prosecution, she complained, had never
disclosed, until trial commenced, that the witness “out there …
[was] not the analyst [of Bullcoming’s sample].”
Id., at
46. Counsel stated that, “had [she] known that the analyst [who
tested Bullcoming’s blood] was not available,” her opening, indeed,
her entire defense “may very well have been dramatically
different.”
Id., at 47. The State, however, proposed to
introduce Caylor’s finding as a “business record” during the
testimony of Gerasimos Razatos, an SLD scientist who had neither
observed nor reviewed Caylor’s analysis.
Id., at 44.
Bullcoming’s counsel opposed the
State’s proposal.
Id., at 44–45. Without Caylor’s
testimony, defense counsel maintained, introduction of the
analyst’s finding would violate Bullcoming’s Sixth Amendment right
“to be confronted with the witnesses against him.”
Ibid.[
Footnote 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.[
Footnote 3] The jury
convicted Bullcoming of aggravated DWI, and the New Mexico Court of
Appeals upheld the conviction, concluding that “the blood alcohol
report in the present case was non-testimonial and prepared
routinely with guarantees of trustworthiness.” 2008–NMCA–097, §17,
189 P. 3d 679, 685.
C
While Bullcoming’s appeal was
pending before the New Mexico Supreme Court, this Court decided
Melendez-Diaz. In that case, “[t]he Massachusetts courts
[had] admitted into evidence affidavits reporting the results of
forensic analysis which showed that material seized by the police
and connected to the defendant was cocaine.” 557 U. S., at ___
(slip op., at 1). Those affidavits, the Court held, were
“ ‘testimonial,’ rendering the affiants ‘witnesses’ subject to
the defendant’s right of confrontation under the Sixth Amendment.”
Ibid.
In light of
Melendez-Diaz, the New Mexico Supreme Court acknowledged that
the blood-alcohol report introduced at Bullcoming’s trial qualified
as testimonial evidence. Like the affidavits in
Melendez-Diaz, the court observed, the report was
“functionally identical to live, in-court testimony, doing
precisely what a witness does on direct examination.” 226
P. 3d, at 8 (quoting
Melendez-Diaz, 557 U. S., at ___
(slip op., at 4)).[
Footnote 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 testimony,” the court stated,
“and, thus, was available for cross-examination regarding the
operation of the … machine, the results of [Bullcoming’s] BAC test,
and the SLD’s established laboratory procedures.”
Ibid.
Razatos’ testimony was crucial, the court explained, because
Bullcoming could not cross-examine the machine or the written
report.
Id., at 10. But “[Bullcoming’s] right of
confrontation was preserved,” the court concluded, because Razatos
was a qualified analyst, able to serve as a surrogate for Caylor.
Ibid.
We granted certiorari to address this
question: Does the Confrontation Clause permit the prosecution to
introduce a forensic laboratory report containing a testimonial
certification, made in order to prove a fact at a criminal trial,
through the in-court testimony of an analyst who did not sign the
certification or personally perform or observe the performance of
the test reported in the certification. 561 U. S. ___ (2010). Our
answer is in line with controlling precedent: As a rule, if an
out-of-court statement is testimonial in nature, it may not be
introduced against the accused at trial unless the witness who made
the statement is unavailable and the accused has had a prior
opportunity to confront that witness. Because the New Mexico
Supreme Court permitted the testimonial statement of one witness,
i.e., Caylor, to enter into evidence through the in-court
testimony of a second person,
i.e., Razatos, we reverse
that court’s judgment.
II
The Sixth Amendment’s
Confrontation Clause confers upon the accused “[i]n all criminal
prosecutions, … the right … to be confronted with the witnesses
against him.” In a pathmarking 2004 decision,
Crawford v.
Washington, we overruled
Ohio v.
Roberts,
448
U. S. 56 (1980), which had interpreted the Confrontation Clause
to allow admission of absent witnesses’ testimonial statements
based on a judicial determination of reliability. See
Roberts, 448 U. S., at 66. Rejecting
Roberts’
“amorphous notions of ‘re-liability,’ ”
Crawford, 541
U. S., at 61,
Crawford held that fidelity to the
Confrontation Clause permitted admission of “[t]estimonial
statements of witnesses absent from trial … only where the
declarant is unavailable, and only where the defendant has had a
prior opportunity to 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 evidence” exception to
this rule. 557 U. S., at ___–___ (slip op., at 11–15).[
Footnote 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).[
Footnote
6]
The State in the instant case
never asserted that the analyst who signed the certification,
Curtis Caylor, was unavailable. The record showed only that Caylor
was placed on unpaid leave for an undisclosed reason. See
supra, at 5. Nor did Bullcoming have an opportunity to
cross-examine Caylor.
Crawford and
Melendez-Diaz,
therefore, weigh heavily in Bullcoming’s favor. The New Mexico
Supreme Court, however, although recognizing that the SLD report
was testimonial for purposes of the Confrontation Clause,
considered SLD analyst Razatos an adequate substitute for Caylor.
We explain first why Razatos’ appearance did not meet the
Confrontation Clause requirement. We next address the State’s
argument that the SLD report ranks as “nontestimonial,” and
therefore “[was] not subject to the Confrontation Clause” in the
first place. Brief for Respondent 7 (capitalization omitted).
A
The New Mexico Supreme Court held
surrogate testimony adequate to satisfy the Confrontation Clause in
this case because analyst Caylor “simply transcribed the resul[t]
generated by the gas chromatograph machine,” presenting no
interpretation and exercising no independent judgment. 226
P. 3d, at 8. Bullcoming’s “true ‘accuser,’ ” the court
said, was the machine, while testing analyst Caylor’s role was that
of “mere scrivener.”
Id., at 9
. Caylor’s
certification, however, reported more than a machine-generated
number. See
supra, at 3–4.
Caylor certified that he received
Bullcoming’s blood sample intact with the seal unbroken, that he
checked to make sure that the forensic report number and the sample
number “correspond[ed],” and that he performed on Bullcoming’s
sample a particular test, adhering to a precise protocol. App.
62–65. He further represented, by leaving the “[r]emarks” section
of the report blank, that no “circumstance or condition …
affect[ed] the integrity of the sample or … the validity of the
analysis.”
Id., at 62, 65. These representations, relating
to past events and human actions not revealed in raw,
machine-produced data, are meet for cross-examination.
The potential ramifications of the New Mexico
Supreme Court’s reasoning, furthermore, raise red flags. Most
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 objective
fact—Bullcoming’s counsel posited the address above the front door
of a house or the read-out of a radar gun. See Brief for Petitioner
35. Could an officer other than the one who saw the number on the
house or gun present the information in court—so long as that
officer was equipped to testify about any technology the observing
officer deployed and the police department’s standard operating
procedures? As our precedent makes plain, the answer is
emphatically “No.” See
Davis v.
Washington,
547 U. S. 813, 826 (2006)
(Confrontation Clause may not be “evaded by having a note-taking
police[ officer] recite the … testimony of the declarant” (emphasis
deleted));
Melendez-Diaz, 557 U. S., at ___ (slip op., at
6) (Kennedy, J., dissenting) (“The Court made clear in
Davis that it will not permit the testimonial statement of
one witness to enter into evidence through the in-court testimony
of a second.”).
The New Mexico Supreme Court stated that the
number registered by the gas chromatograph machine called for no
interpretation or exercise of independent judgment on Caylor’s
part. 226 P. 3d, at 8–9. We have already explained that Caylor
certified to more than a 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
crucible of cross-examination”). Accordingly, the analysts who
write reports that the prosecution introduces must be made
available for confrontation even if they possess “the scientific
acumen of Mme. Curie and the veracity of Mother Teresa.”
Melendez-Diaz, 557 U. S., at ___, n. 6 (slip op., at
14, n. 6).
B
Recognizing that admission of the
blood-alcohol analysis 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.[
Footnote 7] Nor could such surrogate testimony
expose any lapses or lies on the certifying analyst’s
part.[
Footnote 8] Significant
here, Razatos had no knowledge of the reason why Caylor had been
placed on unpaid leave. With Caylor on the stand, Bullcoming’s
counsel could have asked questions designed to reveal whether
incompetence, evasiveness, or dishonesty accounted for Caylor’s
removal from his work station. Notable in this regard, the State
never asserted that Caylor was “unavailable”; the prosecution
conveyed only that Caylor was on uncompensated leave. Nor did the
State assert that Razatos had any “independent opinion” concerning
Bullcoming’s BAC. See Brief for Respondent 58, n. 15. In this
light, Caylor’s live testimony could hardly be typed “a hollow
formality,”
post, at 4.
More fundamentally, as this Court
stressed in
Crawford, “[t]he text of the Sixth Amendment
does not sug- 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 Government argued that illegitimately denying a defendant his
counsel of choice did not violate the Sixth Amend- ment where
“substitute counsel’s performance” did not demonstrably prejudice
the defendant.
Id., at 144–145. This Court rejected the
Government’s argument. “[T]rue enough,” the Court explained, “the
purpose of the rights set forth in [the Sixth] Amendment is to
ensure a fair trial; but it does not follow that the rights can be
disregarded so long as the trial is, on the whole, fair.”
Id., at 145. If a “particular guarantee” of the Sixth
Amendment is violated, no substitute procedure can cure the
violation, and “[n]o additional showing of prejudice is required to
make the violation ‘complete.’ ”
Id., at 146. If
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 character, therefore no Confrontation Clause
question even arises in this case.
Melendez-Diaz left no
room for that argument, the New Mexico Supreme Court concluded, see
226 P. 3d, at 7–8;
supra, at 7, a conclusion we find
inescapable.
In
Melendez-Diaz, a
state forensic laboratory, on police request, analyzed seized
evidence (plastic bags) and reported the laboratory’s analysis to
the police (the substance found in the bags contained cocaine). 557
U. S., at ___ (slip op., at 2). The “certificates of analysis”
prepared by the analysts who tested the evidence in
Melendez-Diaz, this Court held, were “incontrovertibly …
affirmation[s] made for the purpose of establishing or proving some
fact” in a criminal proceeding.
Id., at ___ (slip op., at
4) (internal quotation marks omitted). The same purpose was served
by the certificate in question here.
The State maintains that the affirmations made
by analyst Caylor were not “adversarial” or “inquisitorial,” Brief
for Respondent 27–33; instead, they were simply observations of an
“independent scientis[t]” made “according to a non-adversarial
public duty,”
id., at 32–33. That argument fares no better
here than it did in
Melendez-Diaz. A document created
solely for an “evidentiary purpose,”
Melendez-Diaz
clarified, made in aid of a police investigation, ranks as
testimonial. 557 U. S., at ___ (slip op., at 5) (forensic reports
available for use at trial are “testimonial statements” and
certifying analyst is a “ ‘witness’ for purposes of the Sixth
Amendment”).
Distinguishing Bullcoming’s case from
Melendez-Diaz, where the analysts’ findings were contained
in certificates “sworn to before a notary public,”
id., at
___ (slip op., at 2), the State emphasizes that the SLD report of
Bullcoming’s BAC was “unsworn.” Brief for Respondent 13;
post, at 2 (“only sworn statement” here was that of
Razatos, “who was present and [did] testif[y]”). As the New Mexico
Supreme Court recognized, “ ‘the absence of [an] oath [i]s not
dispositive’ in determining if a statement is testimonial.” 226
P. 3d, at 8 (quoting
Crawford, 541 U. S., at 52).
Indeed, in
Crawford, this Court rejected as untenable any
construction of the Confrontation Clause that would render
inadmissible only sworn
ex parte affidavits, while leaving
admission of formal, but unsworn statements “perfectly OK.”
Id., at 52–53, n. 3. Reading the Clause in this
“implausible” manner,
ibid., the Court noted, would make
the right to confrontation easily erasable. See
Davis, 547
U. S., at 830–831, n. 5;
id., at 838 (Thomas, J.,
concurring in judgment in part and dissenting in part).
In all material respects, the laboratory
report in this case resembles those in
Melendez-Diaz.
Here, as in
Melendez-Diaz, a law-enforcement officer
provided seized evidence to a state laboratory required by law to
assist in police investigations, N. M. Stat. Ann. §29–3–4
(2004). Like the analysts in
Melendez-Diaz, analyst Caylor
tested the evidence and prepared a certificate concerning the
result of his analysis. App. 62. Like the
Melendez-Diaz
certificates, Caylor’s certificate is “formalized” in a signed
document,
Davis, 547 U. S., at 837, n. 2 (opinion of
Thomas, J.), headed a “report,” App. 62. Noteworthy as well, the
SLD report form contains a legend referring to municipal and
magistrate courts’ rules that provide for the admission of
certified blood-alcohol analyses.
In sum, the formalities attending the “report
of blood alcohol analysis” are more than adequate to qualify
Caylor’s assertions as testimonial. The absence of notarization
does not remove his certification from Confrontation Clause
governance. The New Mexico Supreme Court, guided by
Melendez-Diaz, correctly recognized that Caylor’s report
“fell within the core class of testimonial statements” 226
P. 3d, at 7, described in this Court’s leading Confrontation
Clause decisions:
Melendez-Diaz, 557 U. S., at ___ (slip
op., at 4);
Davis, 547 U. S., at 830;
Crawford,
541 U. S., at 51–52.
IV
The State and its
amici
urge that unbending applica-tion of the Confrontation Clause to
forensic evidence would impose an undue burden on the prosecution.
This argument, also advanced in the dissent,
post, at
10–11, largely repeats a refrain rehearsed and rejected in
Melendez-Diaz. See 557 U. S., at ___–___ (slip op., at
19–23). The con-stitutional requirement, we reiterate, “may not
[be] disregard[ed] … at our convenience,”
id., at ___
(slip op., at 19), and the predictions of dire consequences, we
again observe, are dubious, see
id., at ___ (slip op., at
19–20).
New Mexico law, it bears
emphasis, requires the 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 Confrontation
Clause problem by asking Razatos to retest the sample, and then
testify to the results of his retest rather than to the results of
a test he did not conduct or observe.
Notably, New Mexico advocates retesting as an
effective means to preserve a defendant’s confrontation right “when
the [out-of-court] statement is raw data or a mere transcription of
raw data onto a public record.” Brief for Respondent 53–54. But the
State would require the defendant to initiate retesting.
Id., at 55;
post, at 4 (defense “remains free to
… . call and examine the technician who performed a test”),
post, at 8 (“free retesting” is available to defendants).
The prosecution, however, bears the burden of proof.
Melendez-Diaz, 557 U. S., at ___ (slip op., at 19) (“[T]he
Confrontation Clause imposes a burden on the prosecution to present
its witnesses, not on the defendant to bring those adverse
witnesses into court.”). Hence the obligation to propel retesting
when the original analyst is unavailable is the State’s, not the
defendant’s. See
Taylor v.
Illinois,
484 U. S. 400, 410, n.
14 (1988) (Confrontation Clause’s requirements apply “in every
case, whether or not the defendant seeks to rebut the case against
him or to present a case of his own”).
Furthermore, notice-and-demand procedures,
long in ef-fect in many jurisdictions, can reduce burdens on foren-
sic laboratories. Statutes governing these procedures typically
“render … otherwise hearsay forensic reports admissible[,] while
specifically preserving a defendant’s right to demand that the
prosecution call the author/ analyst of [the] report.” PDS Brief 9;
see
Melendez- Diaz, 557 U. S., at ___ (slip op., at 20)
(observing that notice-and-demand statutes “permit the defendant to
assert (or forfeit by silence) his Confrontation Clause right after
receiving notice of the prosecution’s intent to use a forensic
analyst’s report”).
Even before this Court’s decision in
Crawford, moreover, it was common prosecutorial practice
to call the forensic analyst to testify. Prosecutors did so “to
bolster the persuasive power of [the State’s] case[,] … [even] when
the defense would have preferred that the analyst did
not
testify.” PDS Brief 8.
We note also the “small fraction of … cases”
that “actually proceed to trial.”
Melendez-Diaz, 557 U.
S., at ___ (slip op., at 20) (citing estimate that “nearly 95% of
convictions in state and federal courts are obtained via guilty
plea”). And, “when cases in which forensic analysis has 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).[
Footnote 9]
Tellingly, in jurisdictions in which “it is
the [acknowledged] job of … analysts to testify in court … about
their test results,” the sky has not fallen. PDS Brief 23. State
and municipal laboratories “make operational and staffing
decisions” to facilitate analysts’ appearance at trial.
Ibid. Prosecutors schedule trial dates to accommodate
analysts’ availability, and trial courts liberally grant
continuances when unexpected conflicts arise.
Id., at
24–25. In rare cases in which the analyst is no longer employed by
the laboratory at the time of trial, “the prosecution makes the
effort to bring that analyst … to court.”
Id., at 25. And,
as is the practice in New Mexico, see
supra, at 16,
laboratories ordinarily retain additional samples, enabling them to
run tests again when necessary.[
Footnote 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.[
Footnote 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.
Footnote 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) (hereinafter 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 Toxicology 92, 114 (B.
Levine 2d ed. 2006). See also McNair 137 (“Errors that occur in any
step can invalidate the best chromatographic analysis, so attention
must be paid to all steps.”); D. Bartell, M. McMurray, &
A. ImObersteg, Attacking and Defending Drunk Driving Tests
§16:80 (2d revision 2010) (stating that 93% of errors in laboratory
tests for BAC levels are human errors that occur either before or
after machines analyze samples). Even after the machine has
produced its printed result, a review of the chromatogram may
indicate that the test was not valid. See McNair 207–214.
Nor is the risk of human error so remote as to
be negligible.
Amici inform us, for example, that in
neighboring Colorado, a single forensic laboratory produced at
least 206 flawed blood-alcohol readings over a three-year span,
prompting the dismissal of several criminal prosecutions. See Brief
for National Association of Criminal Defense Lawyers et al. as
Amici Curiae 32–33. An analyst had used improper amounts
of the internal standard, causing the chromatograph machine
systematically to inflate BAC measurements. The analyst’s error, a
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
Internet materials as visited June 21, 2011, and included in Clerk
of Court’s case file).
Footnote 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.
Massa-chusetts, 557
U. S. ___, ___, n. 1 (2009) (slip op., at 5, n. 1), “to
decide what steps in the chain of custody are so crucial as to
require evidence; but what testimony
is introduced must
(if the defendant objects) be introduced live.”
Footnote 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.
Footnote 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.
Footnote 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
(criticizing 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”).
Footnote 6
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,
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).
Footnote 7
We do not question that analyst Caylor, in
common with other analysts employed by SLD, likely would not recall
a particular test, given the number of tests each analyst conducts
and the standard procedure followed in testing. Even so, Caylor’s
testimony under oath would have enabled Bullcoming’s counsel to
raise before a jury questions concerning Caylor’s proficiency, the
care he took in performing his work, and his veracity. In
particular, Bullcoming’s counsel likely would have inquired on
cross-examination why Caylor had been placed on unpaid leave.
Footnote 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.
Footnote 9
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 11. The dissent is silent, however, on the number
of instances in which subpoenaed analysts in fact testify,
i.e., the figure that would reveal the actual burden of
courtroom testimony. Moreover, New Mexico’s Department of Health,
Scientific Laboratory Division, has attributed the “chaotic”
conditions noted by the dissent,
ibid., to several favors,
among them, staff attrition, a state hiring freeze, a 15% increase
in the number of blood samples received for testing, and “wildly”
divergent responses by New Mexico District Attorneys to
Melendez-Diaz. Brief for State of New Mexico Dept. of
Health, SLD as
Amicus Curiae 2–5. Some New Mexico District
Attorneys’ offices, we are informed, “subpoen[a] every analyst with
any connection to a blood sample,”
id., at 5, an
exorbitant practice that undoubtedly inflates the number of
subpoenas issued.
Footnote 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).
Footnote 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.
Comments
Be the first to comment
Leave a Comment