concurring in part and dissenting in part.
{ 26 The majority holds that the Confrontation Clause is not violated by the admission of a lab report, which is conceded to be testimonial evidence, through testimony of a supervisor who neither performed the laboratory analysis nor supervised its performance. Maj. op. 118. Reliance upon forensic evidence has increased in criminal cases and the need to retain the traditional right of cross-examination must nonetheless be preserved. This case is only one example of the importance of testimonial forensic reports such as the lab report here. In my view, admitting a testimonial report without allowing the accused to confront the technician who created that report violates the Confrontation Clause in light of the Supreme Court's decision in Bullcoming v. New Mexico, - U.S. -, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011). I would hold that admission of the lab report through the testimony of the supervisor violated the defendant's right under the Confrontation Clause to confront the witnesses against her.
T27 The supervisor's review in this case does not substitute for the testimony of a technician who received the defendant's sample, performed the testing, and observed the results. The supervisor here testified that she did not know which technicians performed the testing and could not tell from the form she reviewed who they were. She testified that she based her certification on her expectation that the technicians had followed laboratory procedures but had no way of knowing whether they actually did follow procedures. Her supervision thus consisted of reviewing machine-generated reports in large batches, assuming procedures had been followed if there were no notes on the reports and the data indicated the machines were working properly, and "rubber stamping" the reports. Although, unlike the analyst in Bullcoming, the supervisor's signature appeared on the reports as a certifier, she testified as to the contents of a lab report without actually sereening or observing the screening of a blood sample. Her testimony raises the same constitutional concerns as the testimony of the Bullcoming analyst, who also testified about results without performing or observing the test that generated those results.
1f 28 Although the Confrontation Clause issue is dispositive to this case, I address the statutory issue because the majority does. Section 16-8-809(5), C.R.S. (2012) requires the employee or technician who "accomplished" the analysis in a laboratory test be made available to testify. In my view, the person who "accomplishes" a laboratory test is a percipient witness-one who perceives the results through his or her senses. Because a supervisor who reviews reports and does not run the tests herself does not perceive the test results and does not accomplish the test under the statute, I would also hold that the trial court erred by not following the mandate of section 16-8-809(5), which requires a forensic lab percipient witness to testify and be subject to cross-examination by either party in a criminal case. To hold as the majority does places a higher value on the convenience of state laboratory employ*950ees over the protection of the accused's confrontation rights and undermines the purpose of this statute, which is to preserve these rights. Hence, I respectfully dissent from all but Part IV of the majority opinion.
I.
129 Defendant Dina Marshall rear-ended another woman's car, then backed into the car again after pulling into a parking lot. An officer gave Marshall roadside sobriety tests, which she failed. She told the officer that she had been smoking methamphetamine. Marshall consented to a urine test and provided a sample, which the police sent to the Colorado Department of Health toxicology lab for sereening.
{30 The People notified defense counsel that they would introduce the results of Marshall's urinalysis. Marshall's defense counsel filed a motion under section 16-8-809(5) requesting that the technician who analyzed Marshall's urine sample testify in person. The People then notified defense counsel that they intended to call Cynthia Burbach, director of the toxicology lab. Burbach supervised the lab and signed off on all of the lab's final reports, but she did not test samples herself.
131 At trial, Marshall objected to Bur-bach's proposed testimony because Burbach had not tested Marshall's sample herself, nor had she actually supervised the technician who did to make sure the technician followed proper procedures. Marshall requested that the technician who performed the analysis testify. The trial court overruled Marshall's objection and allowed Burbach to testify in lieu of the technician about the results of Marshall's urine sample.
T{32 Burbach testified about the process that each sample goes through before she reviews the reports. One technician receives the sample and performs an initial sereening. A second technician then performs a more detailed test to determine more precisely what drug is in the sample and how much. The data is reviewed by two people before Burbach performs the final review. Reports for about a hundred different samples are compiled and sent to Burbach, who reviews them all in a batch as the final checkpoint before the reports are sent to the requesting police departments. This process takes her less than a day. She makes sure the tests match the calibrations and internal quality controls and checks to see whether either testing technician made any notes. If all appears to have gone according to procedure, then Burbach signs the reports before they are sent out,. She does not observe the technicians while they perform the tests and does not perform any testing herself.
T33 Burbach testified that she had not tested Marshall's sample and had not supervised the technicians who did. To determine whether Marshall's sample had been tested according to lab procedures, Burbach examined the printouts showing the results. These printouts did not show who had tested Marshall's sample or what had happened during the tests. Burbach did not know whether either of the technicians who tested Marshall's sample had run the sample more than onee or had taken any other corrective measures. She testified: "I'm not standing over them on the day that they did it ... I expect them to follow the standard operating procedure, but being over their shoulder, no."
IL.
34 Under the Sixth Amendment of the U.S. Constitution, the accused "shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI; see also Colo. Const. art. II, § 16 ("[Thhe accused shall have the right ... to meet the witnesses against him face to face."). The accused's right to confrontation is rooted in the common law tradition dating back to sixteenth-century England, "one of live testimony in court subject to adversarial testing." Crawford v. Washington, 541 U.S. 36, 43, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). This established tradition prevents the introduction in court of an out-of-court statement that is testimonial in nature, "made for the purpose of establishing or proving some fact," without allowing the accused to eross-exam-ine the witness who made that statement. Id. at 51, 58-54, 124 S.Ct. 1854. A testimonial statement against an accused is thus inad*951missible unless the witness who made that statement appears at trial or, if the witness is unavailable, the defendant had a prior opportunity to cross-examine the witness. Id. at 58-54, 124 S.Ct. 1354. The results of a forensic analysis stating the composition of an analyzed substance are testimonial statements. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). An accused is thus entitled to "be confronted with" the analyst who created such a report at trial. Id.1
135 In Bullcoming, the Supreme Court considered whether a "surrogate" analyst who does not "sign the certification or personally perform or observe the performance of the test reported in the certification" is a sufficient substitute. 181 S.Ct. at 2718. The prosecution presented evidence of the defendant's blood-aleohol level through the admission of a lab report. Id. at 2709. Instead of calling the technician who analyzed the defendant's blood sample as a witness, the prosecution called another technician who was familiar with the lab's procedures but who had neither tested the defendant's blood sample nor observed the testing. Id. The Court concluded that "surrogate testimony [cannot] convey what [the technician] knew or observed about ... the particular test and testing process he employed." Id. at 2715.
T86 Forensic evidence such as that featured in Melendezs-Diaz and Bullcoming has "become an increasingly important and routinized aspect of our criminal justice system." Richard D. Friedman, Confrontation and Forensic Laboratory Reports, Round Four, 45 Tex. Tech L.Rev. 51, 58 (2012). "[COJriminal convictions often turn on scientific testing." Jesse J. Norris, Who Can Testify About Lab Results After Melendez-Diaz and Bullcom-ing?: Surrogate Testimony and the Confrontation Clause, 38 Am. J.Crim. L. 375, 377 (2011). However, the results of scientific testing, such as the urinalysis performed here, are "not uniquely immune from the risk of manipulation." Melendes-Diaz, 557 U.S. at 318, 129 S.Ct. 2527.2 The Innocence Project at Cardozo University reports that invalidated or improper forensic science played a role in approximately half of the wrongful convictions later overturned based on DNA evidence.3 In Colorado, the Attorney General's office recently issued a report detailing problems at the state toxicology lab.4 The report describes technicians testing samples after only three weeks of training, blood samples kept in an unlocked refrigerator, and an unidentified supervisor 5 who was bi*952ased in favor of the prosecution, enjoyed testifying at trial, and bragged about making defense attorneys look like "idiots." As the U.S. Supreme Court noted, a forensic analyst responding to a request from law enforcement may have an incentive or feel pressure to provide a result favorable to the prosecution. Melendezs-Diaz, 557 U.S. at 318, 129 S.Ct. 2527.
T 37 Given the increasing use of testimonial forensic evidence-and the possibility that such evidence could be analyzed incorrectly-it is important that courts maintain the historical right of an accused to cross-examine witnesses who present testimonial evidence. The problems reported at toxicology labs in general and the Colorado Department of Health toxicology lab in particular highlight the need to adhere to the traditional guarantee of confrontation. "[The analyst who provides false results may, under oath in open court, reconsider his false testimony." Id. at 819, 129 S.Ct. 2527. The eross-exami-nation process will also help reveal an incompetent analyst in court by revealing an analyst's "lack of proper training or deficiency in judgment." Id. at 8320, 129 S.Ct. 2527. Cross-examination gives the accused the opportunity to ask the analyst about the procedures the analyst used and what the analyst observed. It also gives the accused the chance to question the analyst's general knowledge and reliability.
138 A supervisor who signs off after reviewing data puts a "rubber stamp" on the report.6 This is so because a supervisor does not perceive the result with his or her own senses. When a percipient witness testifies, that witness must testify to what he or she observed: what two commentators call "a combination of perception and memory." 3 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 6:6 (3d ed. 2007). A supervisor who did not perform the test or observe it being performed cannot testify as to whether procedures were followed with a particular sample or about what the analyst observed. Allowing a supervisor who did not conduct or observe forensic evidence analysis to testify "deprives ... the defendant of an opportunity to challenge the skill, qualifications, methodology and trustworthiness of the analyst, even though the validity of the underlying data wholly depends on the analyst." Norris, Who Can Testify About Lab Results After Melendezs-Diag and Bullcom-ing, 38 Am. J.Crim. L. at 401.
€39 In this case, the majority concludes that Burbach was not a surrogate for the technician who analyzed Marshall's urine sample because she testified to her own involvement in the process and signed the report herself. Maj. op. 118. The majority reasons that Burbach's review of technicians' data reports and her signature on the final report provide a sufficient connection with the results of Marshall's urinalysis such that Burbach's testimony satisfies the requirements of the Confrontation Clause. Id. The majority cites cases from other courts that "have found that supervisor testimony satis*953fies the Confrontation Clause when the supervisor prepares or signs the report," but two of these cases involve supervisors who took a much more active role than Burbach did here. Id. 119.7 As the majority acknowledges, a separate line of cases holds that supervisor testimony does not substitute for the testimony of the technician who actually analyzed the evidence. The reasoning of this line is the better one in my view. See United States v. Moore, 651 F.3d 30, 71-72 (D.C.Cir.2011) (holding testimony of supervisor who reviewed reports but ran no tests potentially violated Confrontation Clause and remanding for trial court to make findings on whether the supervisor's testimony caused prejudicial error); Sherrill v. Thaler, H-11-0338, 2012 WL 718942 at *13 (S.D.Tex. Mar. 5, 2012) (holding that supervisor could not testify as to DNA analysis in place of analyst on maternity leave who conducted the tests); Martin v. State, 60 A.3d 1100, 1109 (Del.2013) (holding that admission of lab results through testimony of supervisor who reviewed batch results of blood samples but did not observe testing violated Confrontation Clause); People v. Morrison, 90 A.D.3d 1554, 935 NY.S.2d 234, 237 (2011) (holding that supervisor who reviewed reports to ensure that analysts followed proper procedure could not testify in place of actual analysts without violating the Confrontation Clause).
1 40 In my view, Burbach's review does not substitute for the testimony of a technician who received Marshall's sample, performed the testing, and observed the results. Bur-bach testified that she did not know which technicians performed the testing and could not tell from the form she reviewed who they were. She testified that she based her certification on her expectation that the technicians had followed laboratory procedures but had no way of knowing whether they actually did follow procedures. Her supervision thus consisted of reviewing machine-generated reports in large batches, assuming procedures had been followed if there were no notes on the reports and the data indicated the machines were working properly, and "rubber stamping" the reports. Although, unlike the analyst in Bullcoming, Burbach's signature appeared on the reports as a certifier, she testified as to the contents of a lab report without actually sereening or observing the sereening of a blood sample. Her testimony raises the same constitutional concerns as the testimony of the Bullcoming analyst, who also testified about results without performing or observing the test that generated those results.
141 The "text of the Sixth Amendment does not suggest any open-ended exceptions from the confrontation requirement to be developed by the courts." Bullcoming, 131 S.Ct. at 2716 (quoting Crawford, 541 U.S. at 54, 124 S.Ct. 1354). The constitutional guarantee that an accused be able to confront the witness against her, which is rooted in our common law tradition, must apply to the forensic evidence prevalent in criminal cases today. I would hold that admission of the lab report through Burbach's testimony violated the Confrontation Clause because the accused was denied the opportunity to confront the technician who actually performed the urinalysis. Hence, I respectfully dissent from Part II of the majority opinion.
*954III.
Although the Confrontation Clause issue is dispositive, I also address the majority's holding that Burbach's testimony satisfied section 16-3-309(5) because she "accomplished" the urinalysis by reviewing the data and signing the final report. Maj. op. 1 28.
{ 43 Section 16-83-809(5) allows for reports from a forensic laboratory to be received in court "in the same manner and with the same force and effect as if the employee or technician . who accomplished the requested analysis" testified in person. § 16-3-309(5) (emphasis added). The majority defines "accomplish" as "to execute fully: perform, achieve, fulfill." Maj. op. 21. Under this definition, the majority concludes, Bur-bach "accomplished" the urinalysis because she generated the final report. Id. 123.
1 44 Section 16-8-809(5) allows either party to request that the employee or technician testify in person. The legislature included the provision that a technician would testify on request in section 16-8-809(5) to protect the constitutional rights of the accused to confront the witness against her face to face. SeeHearing on H.B. 1881 Before the House Judiciary Committee, 54th General Assembly, 2d Reg. Sess., Feb. 14, 1984 (hearing tape 84-9 5:55 p.m.-7:00 pm.). The bill's sponsor, Representative Don Mielke, noted that although the legislature's goal in enacting the statute was to make it easier to admit lab reports, the provision allowing the accused to request that the technician testify served as a "constitutional safeguard" ensuring that the rights of the accused were protected. Hearing on H.B. 1381 before the Senate Judiciary Committee, 54th General Assembly, 2d Reg. Sess. Feb. 29, 1984 (hearing tape 84-13 4:84 p.m.-4:50 p.m.).
1 45 A technician who performed a forensic test testifies as a percipient witness who perceived the results of the test through his or her own senses. See Mueller & Kirkpatrick, Federal Evidence § 6:6. To hold otherwise places a higher value on the convenience of state laboratory employees over the protection of the accused's confrontation rights and undermines the purpose of this statute, which is to preserve these rights.
146 The majority's conclusion stretches the meaning of "accomplish" to encompass a supervisor who signed off on a final report and performed no part of the urinalysis test. In my view, the person who "accomplished" the urinalysis according to the plain meaning of the word is the person who performed the test. Burbach did not perform any step of the urinalysis. Hence, I would hold that Burbach's testimony was not sufficient to satisfy section 16-3-309(5), and I respectfully dissent from Part III of the majority opinion.
I am authorized to state that Justice BOAT-RIGHT joins in the concurrence in part and the dissent in part.
. The People appear to concede, and the majority agrees, that the report in this case was testimonial. Maj. op. 115.
. '"[LJaboratory error and operator error exist even with the most well-established or unassailable scientific method." See Pamela R. Metzger, Cheating the Constitution, 59 Vand. L.Rev. 475, 494 (2006). A report by the National Academy of Sciences stated that forensic analyses are often handled by "poorly trained technicians" who might exaggerate the accuracy of their methods. Solomon Moore, Science Found Wanting in Nation's Crime Labs, NY. Times, Feb. 4, 2009, at http://www.nytimes.com/2009/02/05/us/05 forensics.html. Forensic science can also be discredited. As an example, comparative bullet lead analysis was discredited by the National Academy of Sciences in 2004, in a study stating that decades of FBI court testimony linking a particular bullet to an accused's gun should be considered misleading. John Solomon, FBI's ForensicTest Full of Holes, Wash. Post, Nov. 18, 2007, http://www. content/article/2007/1 1/1 7/AR2007111701681. html.
. Innocence Project, http:/www.innocence project.org/Content/DNA_Exonerations _Nation-wide.php (last visited June 26, 2013). Another study of 200 criminal exonerations found that faulty forensic evidence was the second leading type of evidence (after eyewitness identification) featured at trials that had resulted in wrongful convictions. Brandon L. Garrett, Judging Innocence, 108 Colum. L.Rev. 55, 59, 81 (2008). A different study of 137 exonerees' trial transcripts "found invalid forensic science testimony was not just common but prevalent." Brandon L. Garrett & Peter J. Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, 95 Va. L.Rev. 1, 14 (2009).
. Investigation Report, Office of the Attorney General, Mar. 18, 2013, available at http://local tvkdvr.files.wordpress.com/201 3/06/msec-letter- and-report.pdf.
. News reports identified Burbach as the supervisor. She resigned her position as supervisor of the state toxicology lab shortly before the report was released to the state attorneys general. Eli Stokols, Report: Former State Lab Supervisor Involved in Possible Cover-Up, Fox 31 Denver (June 9, 2013, 7:01 p.m., updated June 10, 2013, 9:34 p.m.), http:/kdvr.com/2013/ 06/09/report-*952former-state-crime-lab-supervisor-involved-in-possible-cover-up/; see also Tom McGhee & Joey Bunch, Defense Lawyers Want Independent Probe of Colo. Toxicology Lab, Denver Post, June 10, 2013, updated June 18, 2013, at http://www. denverpost.com/breakingnews/ci_/ defenselawyers-want-independent-investigation-colo-toxicology-lab. The 2013 report was not the first report of problems in the lab Burbach supervised. The lab had to retest 1700 blood samples in 2012 after a blood sample was found to have higher blood-alcohol content than what the technician reported. Burbach was that technician's supervisor. Felisa Cardona, Colorado Lab Director Says DUI Errors Aided Suspects, But 2 Restested Lower, Denver Post, May 11, 2012, http://www.51fdenverpost.5 1 fcom/news/ci_ 20597651/51feolorado-lab-5 i fdirector-says-dui-errors-aided-suspects. In an incident involving another lab, Colorado Springs prosecutors either dismissed or reduced nine drinking and driving charges after 206 blood-test errors were discovered. John C. Ensslin, Final Tally on Flawed DUI: 206 Errors, 9 Tossed or Reduced, Colo. Springs Gazette, Apr. 19, 2010, http://gazette. com/article/97354.
. See Norris, Who Can Testify About Lab Results After Melendez-Diaz and Bullcoming?, 38 Am. J.Crim. L. at 401; see also Pendergrass v. State, 913 N.E.2d 703, 711 (Ind.2009) (Rucker, J., dissenting). ""[Elven a laboratory supervisor might not be able to testify whether the laboratory procedures were followed if they did not watch their subordinate perform the entire test." Tara R. Price, Note, "Bull" Coming from the States: Why the Supreme Court Should Use Williams v. Illinois to Close One of Bullcoming's Confrontation Clause Loopholes, 39 Fla. St. U.L.Rev. 533, 553 (2012).
. See United States v. Summers, 666 F.3d 192, 196 (4th Cir.2011) (supervisor examined DNA evidence based on tests performed by two different analysts, one test taken from DNA on a jacket and one test taken from the defendant, prepared his own report comparing the two results, and reached conclusion that the DNA matched); State v. Lopez, 45 A.3d 1, 13-14 (R.I.2012) (supervisor took the results of DNA tests and used them to formulate a table and draw conclusions about whether the tested DNA matched the defendant's DNA). Summers and Lopez are similar to a host of other cases in which the testimony of supervisors who directly observed testing or conducted their own tests was held not to violate the Confrontation Clause. See, eg., Disharoon v. State,291 Ga. 45, 727 S.E.2d 465, 467 (2012) (testifying technician performed all but one step of DNA analysis); State v. Cabezuela,150 N.M. 654, 265 P.3d 705, 715 (2011) (supervisor observed a pathology trainee perform an autopsy, wrote the autopsy report with the trainee, and testified as to her own conclusions about the victim's cause of death); State v. McMillan, 214 N.C.App. 320, 718 S.E.2d 640, 646-47 (2011) (supervisor was present at autopsy, observed pathologist perform the autopsy, and testified as to the supervisor's own conclusions about the victim's cause of death); Jamerson v. State, 383 S.W.3d 309, 312-13 (Tex.App.2012) (supervisor prepared own report on data and defendant cross-examined the supervisor on her own errors).