                 Cite as: 586 U. S. ____ (2018)            1

                    GORSUCH, J., dissenting

SUPREME COURT OF THE UNITED STATES
            VANESSA STUART v. ALABAMA
  ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF 

             CRIMINAL APPEALS OF ALABAMA

            No. 17–1676. Decided November 19, 2018


   The petition for a writ of certiorari is denied.
   JUSTICE GORSUCH, with whom JUSTICE SOTOMAYOR
joins, dissenting from the denial of certiorari.
   More and more, forensic evidence plays a decisive role in
criminal trials today. But it is hardly “immune from the
risk of manipulation.” Melendez-Diaz v. Massachusetts,
557 U. S. 305, 318 (2009). A forensic analyst “may feel
pressure—or have an incentive—to alter the evidence in a
manner favorable to the prosecution.” Ibid. Even the
most well-meaning analyst may lack essential training,
contaminate a sample, or err during the testing process.
See ibid.; see also Bullcoming v. New Mexico, 564 U. S.
647, 654, n. 1 (2011) (documenting laboratory problems).
To guard against such mischief and mistake and the risk
of false convictions they invite, our criminal justice system
depends on adversarial testing and cross-examination.
Because cross-examination may be “the greatest legal
engine ever invented for the discovery of truth,” California
v. Green, 399 U. S. 149, 158 (1970) (internal quotation
marks omitted), the Constitution promises every person
accused of a crime the right to confront his accusers.
Amdt. 6.
   That promise was broken here. To prove Vanessa Stu-
art was driving under the influence, the State of Alabama
introduced in evidence the results of a blood-alcohol test
conducted hours after her arrest. But the State refused to
bring to the stand the analyst who performed the test.
Instead, the State called a different analyst. Using the
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                    GORSUCH, J., dissenting

results of the test after her arrest and the rate at which
alcohol is metabolized, this analyst sought to estimate for
the jury Ms. Stuart’s blood-alcohol level hours earlier
when she was driving. Through these steps, the State
effectively denied Ms. Stuart the chance to confront the
witness who supplied a foundational piece of evidence in
her conviction. The engine of cross-examination was left
unengaged, and the Sixth Amendment was violated.
   To be fair, the problem appears to be largely of our
creation. This Court’s most recent foray in this field,
Williams v. Illinois, 567 U. S. 50 (2012), yielded no major-
ity and its various opinions have sown confusion in courts
across the country. See, e.g., State v. Dotson, 450 S. W. 3d
1, 68 (Tenn. 2014) (“The Supreme Court’s fractured deci-
sion in Williams provides little guidance and is of uncer-
tain precedential value”); State v. Michaels, 219 N. J. 1,
31, 95 A. 3d 648, 666 (N. J. 2014) (“We find Williams’s
force, as precedent, at best unclear”); United States v.
Turner, 709 F. 3d 1187, 1189 (CA7 2013); United States v.
James, 712 F. 3d 79, 95 (CA2 2013).
   This case supplies another example of that confusion.
Though the opinion of the Alabama court is terse, the
State defends it by arguing that, “[u]nder the rule of the
Williams plurality,” the prosecution was free to introduce
the forensic report in this case without calling the analyst
who prepared it. Brief in Opposition 6. This is so, the
State says, because it didn’t offer the report for the truth
of what it said about Ms. Stuart’s blood-alcohol level at the
time of the test, only to provide the State’s testifying
expert a basis for estimating Ms. Stuart’s blood-alcohol
level when she was driving.
   But while Williams yielded no majority opinion, at least
five Justices rejected this logic—and for good reason.
After all, why would any prosecutor bother to offer in
evidence the nontestifying analyst’s report in this case
except to prove the truth of its assertions about the level of
                  Cite as: 586 U. S. ____ (2018)            3

                     GORSUCH, J., dissenting

alcohol in Ms. Stuart’s blood at the time of the test? The
whole point of the exercise was to establish—because of
the report’s truth—a basis for the jury to credit the testify-
ing expert’s estimation of Ms. Stuart’s blood-alcohol level
hours earlier. As the four dissenting Justices in Williams
explained, “when a witness . . . repeats an out-of-court
statement as the basis for a conclusion, . . . the statement’s
utility is then dependent on its truth.” 567 U. S., at 126
(opinion of KAGAN, J.). With this JUSTICE THOMAS fully
agreed, observing that “[t]here is no meaningful distinc-
tion between disclosing an out-of-court statement so that
the factfinder may evaluate the [testifying] expert’s opin-
ion and disclosing that statement for its truth.” Id., at 106
(opinion concurring in judgment).
   Faced with this difficulty, the State offers an alternative
defense of its judgment in this case. Even if it did offer
the forensic report for the truth of its assertion about Ms.
Stuart’s blood-alcohol level at the time of her arrest, the
State contends that the Sixth Amendment right to con-
frontation failed to attach because the report wasn’t “tes-
timonial.” Brief in Opposition 9.
   But piecing together the fractured decision in Williams
reveals this argument to be mistaken too—and this time
in the view of eight Justices. The four-Justice Williams
plurality took the view that a forensic report qualifies as
testimonial only when it is “prepared for the primary
purpose of accusing a targeted individual” who is “in
custody [or] under suspicion.” 567 U. S., at 84. Mean-
while, four dissenting Justices took the broader view that
even a report devised purely for investigatory purposes
without a target in mind can qualify as testimonial when
it is “made under circumstances which would lead an
objective witness reasonably to believe that [it] would be
available for use at a later trial.” Id., at 121 (KAGAN, J.,
dissenting) (internal quotation marks omitted). But how-
ever you slice it, a routine postarrest forensic report like
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                    GORSUCH, J., dissenting

the one here must qualify as testimonial. For even under
the plurality’s more demanding test, there’s no question
that Ms. Stuart was in custody when the government
conducted its forensic test or that the report was prepared
for the primary purpose of securing her conviction.
  Respectfully, I believe we owe lower courts struggling to
abide our holdings more clarity than we have afforded
them in this area. Williams imposes on courts with
crowded dockets the job of trying to distill holdings on two
separate and important issues from four competing opin-
ions. The errors here may be manifest, but they are un-
derstandable and they affect courts across the country in
cases that regularly recur. I would grant review.
