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Confrontation Clause. Applying this rule to the present case, we conclude that the expert's testimony did not violate the Sixth Amendment.” B. The plurality concedes that this “argument would have force if petitioner had elected to have a jury trial. In that event, there would have been a danger of the jury's taking Lambatos's testimony as proof that the Cellmark profile was derived from the sample obtained from the victim's vaginal swabs. Absent an evaluation of the risk of juror confusion and careful jury instructions, the testimony could not have gone to the jury. This case, however, involves a bench trial and we must assume that the trial judge understood that the portion of Lambatos's testimony to which the dissent objects was not admissible to prove the truth of the matter asserted.” Distinguishing Bullcoming (June 23, 2011) and Melendez-Diaz (June 25, 2009) [ see both under sub-heading Business Records, above ], where reports were admitted to prove the truth of their contents, but without the testimony of their authors. C. Apparently critical to the plurality are the circumstances here which make the DNA profile especially reliable (although reliability of the evidence isn’t supposed to be relevant to Confrontation Clause analysis): Lambatos essentially testified that the match showed that the sample wasn’t degraded, and it was impossible for Cellmark to have matched the defendant’s DNA by mistake or fraud. 3. Alito adds “a second, independent basis” for the plurality’s position: the private lab report wasn’t testimonial because it didn’t have “the primary purpose of accusing a targeted individual of engaging in criminal conduct”; to the contrary, when the report was created, the perpetrator was unknown. “The report was produced before any suspect was identified. The report was sought not for the purpose of obtaining evidence to be used against petitioner, who was not even under suspicion at the time, but for the purpose of finding a rapist who was on the loose. And the profile that Cellmark provided was not inherently inculpatory. On the contrary, a DNA profile is evidence that tends to exculpate all but one of the more than 7 billion people in the world today. The use of DNA evidence to exonerate persons who have been wrongfully accused or convicted is well known. If DNA profiles could not be introduced without calling the technicians who participated in the preparation of the profile, economic pressures would encourage prosecutors to forgo DNA testing and rely instead on older forms of evidence, such as eyewitness identification, that are less reliable. See Perry v. New Hampshire, 10-8974, ___ U.S. ___, 132 S.Ct. 716, 181 L.Ed.2d 694, 2012 WL 75048 (January 11, 2012). The Confrontation Clause does not mandate such an undesirable development. This conclusion will not prejudice any defendant who really wishes to probe the reliability of the DNA testing done in a particular case because those who participated in the testing may always be subpoenaed by the defense and questioned at trial.” Breyer concurs, but urges a Confrontation Clause “exception that presumptively would allow introduction of DNA reports from accredited crime laboratories. The defendant would remain free to call laboratory technicians as witnesses. Were there significant reason to question a laboratory's technical competence or its neutrality, the presumptive exception would disappear, thereby requiring the prosecution to produce any relevant technical witnesses. Such an exception would lie outside Crawford 's constitutional limits.” Thomas concurs in result only, agreeing with the dissent that the reference to the Cellmark profile was clearly intended to prove the truth of the matter asserted; but finding that the report wasn’t testimonial because not certified or otherwise bearing “indicia of solemnity.” “[T]here was no plausible reason for the introduction of Cellmark’s statements other than to establish their truth,” Thomas says. “There is no meaningful distinction between disclosing an out-of-court statement so that the factfinder may evaluate the expert's opinion and disclosing that statement for its truth. ‘To use the inadmissible information in evaluating the expert's testimony, the jury must make a preliminary judgment about whether this information is true.’ D. Kaye, D. Bernstein, & J. Mnookin, The New Wigmore: A Treatise on Evidence: Expert Evidence § 4.10.1, p. 196 (2d ed., 2011).” Thomas also dismisses efforts to find the “primary purpose” of statements as a test of whether they are testimonial, noting that “[s]tatements to police are often made both to resolve an ongoing emergency and to establish facts about a crime for potential prosecution. The primary purpose test gives courts no principled way to assign primacy to one of those purposes.” Worse in Thomas’s view, however, is the plurality new requirement that the statement be made “for the purpose of proving the guilt of a particular criminal defendant.” Thomas finds no historical or textual justification for such a rule, and argues that the ex parte witness examinations which prompted the adoption of the Confrontation Clause sometimes “occurred while the accused remained ‘unknown or fugitive.’” Thomas also worries over the use of expert witnesses to bring in types of hearsay other than scientific reports. Kagan, writing for Scalia, Ginsburg and Sotomayor in dissent, agrees with Thomas’s criticisms of the plurality, but also criticizes Thomas’s approach for allowing lab reports as long as they’re not notarized or called a “certificate.” Such a rule would favor admission of less reliable evidence, “and so turn the Confrontation Clause upside down.” The dissent takes cold comfort from Thomas’s assurances that “the Confrontation Clause reaches bad-faith attempts to evade the formalized process.” There appears to be little in the way of binding precedent here, as every rationale is opposed by a majority of the Court; it’s unclear if the plurality would have agreed if the case had involved anything other than a) DNA evidence and b) a bench trial. It would appear unwise to rely on any scientific report as a basis for expert opinion without properly admitting the underlying report in evidence. The best summary is probably Kagan’s note in dissent that “until a majority of this Court reverses or confines [ Melendez-Diaz and Bullcoming ], I would understand them as continuing to govern, in every particular, the admission of forensic evidence.”