This case raises a question that I believe neither theplurality nor the dissent answers adequately: How doesthe Confrontation Clause apply to the panoply of crimelaboratory reports and underlying technical statementswritten by (or otherwise made by) laboratory technicians?In this context, what, if any, are the outer limits of the “testimonial statements” rule set forth in Crawford v. Washington, 541 U. S. 36 (2004)? Because I believe the question difficult, important, and not squarely addressed either today or in our earlier opinions, and because I believe additional briefing would help us find a proper,generally applicable answer, I would set this case for reargument. In the absence of doing so, I adhere to the dissenting views set forth in Melendez-Diaz v. Massachusetts, 557 U. S. 305 (2009), and Bullcoming v. New Mexico, 564 U. S. ___ (2011). I also join the plurality’s opinion.
He clearly wants to get rid of Melendez-Diaz. And he’s been watching a lot of CSI:
Once one abandons the traditional rule, there would seem often to be no logical stopping place between requiring the prosecution to call as a witness one of the laboratory experts who worked on the matter and requiring the prosecution to call all of the laboratory experts who did so. Experts—especially laboratory experts—regularly rely onthe technical statements and results of other experts to form their own opinions. The reality of the matter is thatthe introduction of a laboratory report involves layer upon layer of technical statements (express or implied) made byone expert and relied upon by another. Hence my general question: How does the Confrontation Clause apply to crime laboratory reports and underlying technical statements made by laboratory technicians?
And he’s not impressed with Kagan’s “whatever” dissent:
While, as a matter of purelogic, one might use those cases to answer a narrowedversion of the question presented here, see post, at 7–8 (KAGAN, J., dissenting), those cases do not fully consider the broader evidentiary problem presented. I consequently find the dissent’s response, “Been there, donethat,” unsatisfactory. See post, at 21.
I also like that flow-chart on p. 16 of Breyer’s opinion.
Update: Kagan in dissent notes that contrary to Breyer, the plurality is not quite ready to ditch Melendez-Diaz:
And althoughthe plurality is close, it is not quite ready (or able) to dispense with that decision. See ante, at 29, n. 13 (“Experience might yet show that the holdings in [Bullcomingand other post-Crawford] cases should be reconsidered”).So the plurality must explain: What could support a distinction between the laboratory analysis there and the DNA test in this case?4
4 JUSTICE BREYER does not attempt to distinguish our precedents,opting simply to adhere to “the dissenting view set forth in Melendez-Diaz and Bullcoming.” See ante, at 8 (concurring opinion). He principally worries that under those cases, a State will have to call to the witness stand “[s]ix to twelve or more technicians” who have worked on a report. See ante, at 5; see also ante, at 3, 16–18. But none of our cases—including this one—has presented the question of how many analysts must testify about a given report. (That may suggest that inmost cases a lead analyst is readily identifiable.) The problem in the cases—again, including this one—is that no analyst came forward to testify. In the event that some future case presents the multipletechnician issue, the Court can focus on “the broader ‘limits’ question” that troubles JUSTICE BREYER, ante, at 7. But the mere existence of that question is no reason to wrongly decide the case before us—which,it bears repeating, involved the testimony of not twelve or six or threeor one, but zero Cellmark analysts