Issues
Is the Sixth Amendment’s Confrontation Clause violated when a testifying expert uses a nontestifying expert’s notes as the basis for their opinion when a defendant has not subpoenaed the nontestifying expert or otherwise had an opportunity to cross examine them?
This case asks the Supreme Court to decide whether the Confrontation Clause of the Sixth Amendment is violated when the State employs an expert who uses another expert’s notes as the basis of their own opinion. Jason Smith argues that the Confrontation Clause forbids the introduction of testimonial statements for their truth from expert witnesses whom a defendant has not had the opportunity to cross-examine, and that the testifying expert’s testimony in his case relied on the nontestifying expert’s testimonial notes and conclusions. Arizona argues that the Confrontation Clause allows experts to testify using facts that are not otherwise admissible when the facts are not submitted for their truth, and that the nontestifying expert’s notes in Smith’s case were not testimonial because they were not created for the purpose of testifying and lacked formality. The outcome of this case has serious implications for defendant’s Confrontation Clause rights and prosecutors’ ability to pursue cases that require forensics.
Questions as Framed for the Court by the Parties
Whether the Confrontation Clause of the Sixth Amendment permits the prosecution in a criminal trial to present testimony by a substitute expert conveying the testimonial statements of a nontestifying forensic analyst, on the grounds that (a) the testifying expert offers some independent opinion and the analyst’s statements are offered not for their truth but to explain the expert’s opinion, and (b) the defendant did not independently seek to subpoena the analyst.
Facts
The Confrontation Clause in the Sixth Amendment of the Constitution provides defendants with the right to “be confronted with the witnesses against [them],” allowing them to challenge the validity of the testimony before a jury. U.S. Const. amend. VI. States are free to develop their own rules that govern trial evidence and witnesses, but these rules cannot violate the defendant’s Confrontation Clause rights. At issue in this case is Arizona Rule of Evidence 703, which allows experts to form and testify to their opinions based on a data set and notes created by a different expert.
In this case, Jason Smith was charged with five drug offenses after he was arrested in December 2019 on his medically-compromised father’s property. Arizona v. Smith at 3-4. Smith was found in a shed that contained a bed, a couch, a refrigerator, and clothes along with pounds of alleged drugs and drug paraphernalia. Id. at 4. During the arrest, Smith refused to comply with the officers’ demands and had to be forcibly removed. Id. In addition to Smith, eleven other individuals were arrested on the property that same day. Id.
The prosecution sent the alleged drug evidence to the Arizona Department of Public Safety for testing. Brief of Petitioner, Jason Smith at 4. Forensic scientist Elizabeth Rast conducted the tests and typed notes that recorded her observations, test methods, and results. Id. at 4. Her notes contained the only details on the tests used and their results. Id. at 5. She further prepared a formal report which stated her conclusions that the substances were illegal drugs, along with the weight of each substance. Id.
At the time of the trial, Rast had left the lab, so the State announced that it would introduce her analysis through a substitute expert witness, forensic scientist Gregory Longoni. Brief of Petitioner, Jason Smith at 6. Longoni testified that the substances tested were marijuana, methamphetamine, and cannabis. Arizona at 5. While Longoni could have redone the tests that Rast conducted in under three hours, he chose to base his testimony solely on the report and notes taken by Rast. Brief of Petitioner, Jason Smith at 6,9.
After the evidence was presented, Smith moved for an acquittal, arguing that Longoni’s opinion was not independent. Id. at 9. Smith argued that Longoni relied on Rast’s own opinion and that his Confrontation Clause rights were violated because he could not cross-examine Rast. Id. at 10. The Court denied this motion, and the state relied exclusively on Longoni’s testimony to prove that the substances seized were illicit drugs. Id. at 10. Smith was found guilty of possession of marijuana for sale and possession of methamphetamine, cannabis, and drug paraphernalia by a jury. Arizona at 4-6.
The Arizona Court of Appeals affirmed the conviction and held that the admission of Longoni’s opinion was acceptable because it was an independent conclusion based on Rast’s work. Id. at 11. Further, the Court held that Smith was fully able to cross-examine Longoni. Id. The Court did not believe that Longoni acted “as a mere conduit” for Rast’s conclusion, but instead formed his own conclusion. Id. Smith appealed to the Arizona Supreme Court, but the court denied his appeal. Brief of Petitioner, Jason Smith at 11.
On September 29, 2023, Smith filed a petition for a writ of certiorari. Petition for a Writ of Certiorari. The United States Supreme Court granted certiorari on September 29, 2023.
Analysis
STATEMENTS OFFERED FOR PURPOSES OTHER THAN THEIR TRUTH
Smith argues that Elizabeth Rast’s notes were offered for their truth and that Gregory Longoni, the testifying expert, offered no opinion of his own. Brief for Petitioner, Jason Smith at 28. Smith explains that the Sixth Amendment’s Confrontation Clause forbids introducing testimonial statements from an expert witness whom the defendant has not had a previous opportunity to cross examine if those statements are offered for their truth at trial. Id. at 28-29. Smith notes that while the Confrontation Clause allows testimonial statements to be offered for reasons other than their truth, the Arizona Court of Appeals erred in ruling that all information upon which testifying experts base their opinions are categorically asserted for matters other than their truth. Id. at 29. Smith contends that the only historical support for such an exception comes from Federal Rule of Evidence 703 (“FRE 703”), from which Arizona derives its expert evidence rule. Id. at 30. Smith explains that the Federal Rules of Evidence were only adopted in 1975, which is too late for them to inform the original understanding of the Confrontation Clause. Id. Smith asserts that the common law limited experts to presenting facts within their personal knowledge or which they heard in that court case, and did not allow relying on another expert’s notes as occurred in Smith’s case. Id. Smith contends that FRE 703 acknowledges the danger that nontestifying experts’ notes could pose to the Confrontation Clause, as it includes a balancing test that only allows the basis of an expert’s opinion into evidence when its admission would be substantially more helpful to the jury than prejudicial to the defendant. Id. at 31. However, Smith says that this balancing test is inadequate to overcome the categorical demands of the Confrontation Clause, which does not allow exceptions for expert basis evidence. Id. Smith argues that the Court has allowed an expert’s basis evidence only when “there is a ‘legitimate, nonhearsay purpose,’” where “hearsay” describes an out-of-court statement offered for its truth. Id. at 32; LII Wex. Smith contends that no legitimate nonhearsay purpose exists in his case because Longoni’s opinion only has value insofar as Rast’s information, which he based that opinion upon, is true. Id. at 33. Smith concludes that admitting Rast’s notes here would allow many future forensic reports into evidence without giving defendants the chance to adequately cross examine investigators as required by the Confrontation Clause. Id. at 37.
Arizona argues the Confrontation Clause permits experts to disclose the evidence upon which they based their opinions so juries can assess the strength of those opinions. Brief for Respondent, State of Arizona at 12. Arizona emphasizes that in Smith’s case, Longoni only testified to data the jury needed to evaluate his opinions, including Rast’s statements identifying the tests she conducted and affirmations that she followed official protocols. Id. at 12, 20. He then offered independent analysis and conclusions based on that bare information. Id. at 12. Arizona asserts that Arizona law does not permit basis evidence to be admitted for its truth, and its practice is consistent with historical applications of the Confrontation Clause. Id. at 15-16. Arizona contends that the Court has never found a Confrontation Clause violation when a defendant had the opportunity to cross examine the expert giving their opinion. Id. at 13. Further, Arizona argues that, under the common law, experts were able to rely on facts that were not otherwise admissible, contending that the provability of such underlying evidence went to the expert opinion’s persuasive influence, not the evidence’s admissibility. Id. at 15. Arizona stresses that the Court permitted offering testimonial statements for reasons other than their truth in prior cases and that the comments to FRE 703 say that basis evidence is “admissible only for the purpose of assisting the jury in evaluating [the] expert’s opinion.” Id. at 18. Arizona contends that the balancing test mentioned by Smith is not a concession that basis evidence is being offered for its truth because the amenders of the Federal Rules of Evidence explicitly stated that “the underlying information must not be used for substantive purposes.” Id. at 19. Arizona points out that Longoni gave a fully independent opinion that reasonably relied on the facts Rast laid out in her notes. Id. at 23. Arizona asserts the truth of an expert’s basis evidence does not implicate the Confrontation Clause because that truth goes to the relevance of the expert’s opinion, and the relevance of a piece of evidence is governed by federal and state rules of evidence, not the Constitution. Id. at 26-27. Arizona concludes that a rule which excludes Rast’s notes from evidence would “strain the constitutional text,” covering evidence that was never intended to receive protection from the Confrontation Clause. Id. at 30.
THE TESTIMONIAL NATURE OF THE REPORT
Smith argues that Rast’s notes and report were testimonial under three potential tests that Supreme Court justices have announced. Brief for Petitioner, Jason Smith at 20-21. First, in explaining what statements count as testimonial, Smith points to Melendez-Diaz v. Massachusetts, which provided that testimonial statements include out-of-court statements that “declarants would reasonably expect to be used prosecutorially.” Id. at 19. Smith contends that Rast’s notes are testimonial under this test because she prepared the results explicitly for the prosecution of Smith’s case. Id. at 20. Second, Smith says that Rast’s report passes the test announced in Williams v. Illinois, which states that testimonial statements are “prepared for the primary purpose of accusing a targeted individual.” Id. at 19. In support of this point, Smith highlights the fact the report was created for Smith’s prosecution and further points to the report’s inclusion of Smith’s name. Id. at 20. Third, Smith analyzes Rast’s notes and report under the test that Justice Thomas endorsed in a concurring opinion in Williams: that the statement bore “sufficient ‘formality’ or ‘indicia of solemnity.’” Id. Smith argues that Rast’s statement was sufficiently formal because investigators took an active role in producing the statement. Id. at 21. Further, Smith contends that the first page of the report referenced the Arizona Department of Public Safety by name and that Rast took very detailed notes which further underlined the report’s formality. Id. at 22. Finally, Smith compares the report in this case to the report that the Supreme Court found to be testimonial in Bullcoming v. New Mexico. Id. Smith explains that the report in Bullcoming was testimonial because the expert signed a statement that said, “I certify that I followed the procedures set out on the reverse of this report, and the statements in this block . . . are correct.” Id. at 22-23. Smith contends that the report in his case is similar in its level of formality to the report taken in Bullcoming. Id. at 23.
Arizona argues that Rast’s statements are not testimonial. Brief for Respondent, State of Arizona at 39. First, Arizona asserts that the Court should employ the “primary purpose” test from Michigan v. Bryant, which asks if a statement “was procured with a primary purpose of creating an out-of-court substitute for trial testimony.’” Id. at 40. Arizona argues that Smith misconstrues the holding from Melendez-Diaz because the Court actually employed the primary purpose test in that case and Smith is quoting language that does not declare a new test. Id. at 41. In support of this argument, Arizona points to Bryant, where a dying victim’s identification of his shooter was found not to be testimonial despite the victim likely reasonably expecting that his statement “would be available for use at a later trial.” Id. at 42. When analyzing Smith’s case under the primary purpose test, Arizona explains that all the facts Longoni analyzed in his testimony were present in Rast’s notes—not her report. Id. at 43. Arizona posits that this distinction is important because, unlike the report, the notes were merely part of the lab’s standard practice, not potentially done for the primary purpose of creating a case against Smith. Id. at 45. To support this outcome, Arizona emphasizes that the notes use language not suited for a legal audience, unlike affidavits usually filed as substitutes for live testimony. Id. at 46-47. Second, Arizona contends that Rast’s notes are not sufficiently formal to be considered testimonial under Justice Thomas’s indicia of formality test. Id. at 48. Arizona emphasizes that the letterhead the notes are written on is not relevant to the notes’ formality. Id. at 49. Further, Arizona asserts that the notes were not made to “replace live testimony” because Arizona was initially going to ask Rast to testify and the sheets did not contain any certification that would normally be expected in written testimonial statements. Id. at 49-50.
Discussion
DEFENDANTS’ TRIAL RIGHTS
The Innocence Network et al., in support of Smith, argues that affirming the lower court’s ruling would burden defendants’ abilities to cross-examine witnesses against them at trial. Brief of Amici Curiae The Innocence Network et al., in Support of Petitioner at 4. They further argue that future defendants would lose the ability to meaningfully challenge forensic evidence presented by the prosecution. Id. The Innocence Network asserts that cross-examination is crucial to an accused person’s defense since forensic evidence is uniquely powerful in determining guilt and monumentally impactful on juries. Id. at 4-5. They contend that errors in forensic science are well-recognized and that they are one of the leading causes of wrongful convictions. Id. at 6, 8. Given the potential for error in forensic science, the Innocence Network argues that meaningful cross-examination is essential to expose the fraud, mistakes, and biases that accompany forensic analysis. Id. at 8.
The United States, in support of neither party, counters that existing procedures already safeguard a defendant’s confrontation rights. See Brief of Amici Curiae The United States, in Support of Neither Party at 12. The United States posits that the Federal Rules of Evidence already ensure that experts only testify to their own conclusions, making the proposed rule unnecessary. Id. at 17. The United States further argues that the Daubert standard, which requires that experts only use data and methods their field considers reliable, provides additional protections because it ensures that all admitted forensic evidence meets a baseline level of scientific reliability. Id. at 18. Lastly, it argues that a judge may give a limiting instruction to the jury to not use inadmissible facts or data and to only rely on the expert’s independent conclusion. Id. at 20.
BURDEN ON THE PROSECUTION
The National Association of Criminal Defense Lawyers et al., (“Defense Lawyers”), in support of Smith, argues that this proposed rule is not overly burdensome to the prosecution. Brief of Amici Curiae National Associations of Criminal Defense Lawyers, in Support of Petitioners at 4. They contend that many jurisdictions throughout the country already have a similar rule requiring the author of the report to testify, and justice is not impeded there. Id. For evidence, the Defense Lawyers cite Minnesota’s record high number of felony drug convictions in 2017 while employing a similar cross-examination rule. Id. at 9. Further, the Defense Lawyers argue the proposed change will not overly burden forensic experts, since it will affect only the few cases that go to trial and the vast majority of cases are resolved by pleas. Id. at 12. They note that forensic disputes rarely occur because defendants often stipulate to their use. Id. at 13. Even if recognizing the defendant’s confrontation right is burdensome, the Defense Lawyers argue that the fundamental principles of the American justice system should not be outweighed by efficiency arguments. Id. at 14.
The United States, in support of neither party, counters that expanding Confrontation Clause rights in this case will destabilize existing standards and impede the prosecution of murder, rape, and drug cases, which often rely on forensics. Brief of Amici Curiae The United States, in Support of Neither Party at 29. It argues that if defendants can cross-examine the author of the report, then defendants may cross-examine every expert who participated in this process. Id. at 30. The American Board of Forensic Toxicology et al., (“ABFT”), in support of Arizona, argues that the proposed rule would disrupt already over-burdened forensic laboratories because up to five experts may be required to testify for each trial. Brief of Amici Curiae American Board of Forensic Toxicology et al., (“ABFT”) at 29-30. ABFT argues that forensic labs cannot comply with this new rule because they are already short-staffed and that the increase in time spent preparing for and actually testifying at trial will exacerbate this. Id.
Conclusion
Acknowledgments
Additional Resources
- Sam Curry, Smith v. Arizona: Yuma Case Sets the Stage for Long-Awaited Review of the Confrontation Clause, Arizona State Law Journal (November 23, 2023).
- Phil Dixon, Substitute Analyst Testimony and Smith v. Arizona, North Carolina Criminal Law (October 17, 2023).
- Morgan Fischer, Do Absent Experts Violate 6th Amendment ‘Confrontation Clause’? This Drug Case May Decide., Milwaukee Journal Sentinel (October 26, 2023).
- Renee Romo, Supreme Court to Hear Appeal Over Expert Testimony in Yuma Drug Case, Cronkite News (Oct. 2, 2023).