In A.E. Van Vogt’s murky but classic science fiction novel, The World of Null-A, the main character repeatedly dies, only to reappear in a new body with no memory of his former life. With help from extra brain matter, he moves on anyway. That, very roughly, is what the state of Arizona tried to accomplish in Smith v. Arizona, 144 S.Ct. 1785 (2024). It wrote off one expert witness but allowed her to live on through another expert. This plot twist left the defendant complaining that his Sixth Amendment “right … to be confronted with the witnesses against him” had been violated. This right, the Supreme Court repeatedly has held, prevents the prosecution from introducing “testimonial hearsay” without producing the author of the hearsay for cross-examination.
The Court’s struggle to define “testimonial” is becoming epic, and the definition of hearsay is one of those terrors of law school that leaves many students wondering whether they should have gone to some other professional or graduate school. One essential feature of hearsay is that the assertion is offered to prove “the truth of the matter asserted.” This phrase was at the center of the dispute in Smith, and the Court usefully clears up some of the confusion created by the opinions in Williams v. Illinois, 567 U.S. 50 (2012). Unfortunately, the Court did not stop there but also expressed some hasty thoughts about what might make a forensic-science expert’s hearsay statements nontestimonial.
This post describes the facts of Smith. They are drawn primarily from Justice Kagan's opinion for the Court. Ruminations on both parts of the majority opinion—and the three concurring opinions—may come later.
Jason Smith was arrested in a shed in Yuma county that contained “a large quantity of what appeared to be drugs and drug-related items.” He pleaded not guilty to charges of possession. The State asked “a crime lab run by the Arizona Department of Public Safety (DPS) for a ‘full scientific analysis.’” The State informed the lab of who the defendant was, what he was charged with, and the fact that a trial was pending. An analyst named Elizabeth Rast “ran the requested tests.” She typed out notes and submitted a signed report. The notes described each item, its weight, the tests performed, and a conclusion about its identity. The report of “results/interpretations” stated that four items “[c]ontained a usable quantity of methamphetamine,” three “[c]ontained a usable quantity of marijuana,” and one “[c]ontained a usable quantity of cannabis.”
After Rast “stopped working at the lab, for unexplained reasons,” prosecutors replaced her name on the “final pre-trial conference statement” with thast of a current employee. They promised that “Greggory Longoni, [a] forensic scientist (substitute expert),” who had no previous connection to the case, would “provide an independent opinion on the drug testing performed by Elizabeth Rast.” At trial, Longoni purported to give an independent opinion on the nature of the eight items. Yet, he arrived at his opinion by consulting nothing more than Rast's report and notes. He did no re-examination or retesting of his own. He merely
referred to those materials and related what was in them, item by item by item. As to each, he described the specific ‘scientific method[s]’ Rast had used … (e.g., a microscopic examination, a chemical color test, a gas chromatograph/mass spectrometer test). … [H]e stated that the testing had adhered to ‘general principles of chemistry,’ as well as to the lab's ‘policies and practices …. [H]e noted, for example, that Rast had run a “blank” to confirm that testing equipment was not contaminated. \1/
Readers of the opinion might think that "those materials" to which Longoni referred "[w]hen [he] took the stand" included Rast's report, but this is not quite correct. The prosecution was careful not to ask Longoni to recite the conclusions in the report. For example, the prosecutor posed these questions:
Q Let me be clear. You’re not testifying as to her report, you’re testifying as to review of lab notes?
A Correct.
Q In reviewing what was done, your knowledge and training as a forensic scientist, your knowledge and experience with DPS’s policies, practices, procedures, your knowledge of chemistry, the lab notes, the intake records, the chemicals used, the tests done, can you form an independent opinion on the identity of Item 26?
A Yes.
In this manner, Longoni told the jury that his “independent opinion” was that “Item 26 was 'a usable quantity of marijuana,' … Items 20A and 20B were 'usable quantit[ies] of methamphetamine,' and … Item 28 was '[a] usable quantity of cannabis.'”
The jury convicted, and Smith appealed on the ground that he was convicted via Rast’s written statements with no opportunity to cross-examine her. The State insisted that “Longoni testified about ‘his own independent opinions,’ even though making use of Rast's records.” The Arizona Court of Appeals agreed that Longoni was “present[ing] his independent expert opinions” as “based on his review of Rast's work.” It affirmed, relying on a 2014 case in which it had stated that an expert may testify to “the substance of a non-testifying expert's analysis, if such evidence forms the basis of the [testifying] expert's opinion.” State ex rel. Montgomery v. Karp, 236 Ariz. 120 (Ct. App. 2014). According to the Court of Appeals in Karp, the “underlying facts” are then “used only to show the basis of [the in-court witness's] opinion and not to prove their truth.” All this seemed so obvious to the court that it did not think its opinion was even worth publishing. The Arizona Supreme Court declined review without comment.
The U.S. Supreme Court was much more interested. In Williams v. Illinois, 567 U.S. 50 (2012), five Justices—a majority of the Court—had rejected this very reasoning. These Justices had dismissed the basis-only rationale as “legal fiction” (Thomas, J., concurring), “very weak,” “factually implausible,” “nonsense,” and “sheer fiction.” (Kagan, Scalia, Ginsburg & Sotomayor, JJ., dissenting and quoting D. Kaye, D. Bernstein, & J. Mnookin, The New Wigmore: Expert Evidence §4.10.1, pp. 196-197 (2d ed. 2011); id., §4.11.6, at 24 (Supp. 2012)). However, the remaining four Justices, in a plurality opinion written by Justice Alito, had vigorously advanced the not-for-its-truth theory for basis evidence.
The absence of a unifying rationale from a majority of the Court in Williams enabled the Arizona court to rely on one part of the Williams plurality opinion in one breath and to say that the “plurality decision … has limited if any precedential value” in the next. Meanwhile, other states had found the only-to-show-the-basis argument entirely unpersuasive.
And, so, for the fourth time, the Supreme Court granted a writ of certiorari to review either the introduction of forensic-science test findings made by analysts who were not presented for cross-examination or references to another analyst's findings by the expert presenting the scientific evidence. The petition propounded the question:
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 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 … .
On this narrow issue, the Court was unanimous: At least when the surrogate expert endorses the basis for his opinion as reliable, introducing the missing witness’s out-of-court but “testimonial” statements of and about her findings violates the Confrontation Clause. Justice Kagan wrote an opinion, joined in its discussion of this issue by every other Justice (except for Justice Alito and the Chief Justice). Justices Thomas and Gorsuch also filed concurring opinions that no one else joined. Justice Alito, joined only by the Chief Justice, filed an concurring opinion accusing the rest of the Court of “inflict[ing] a needless, unwarranted, and crippling wound on modern evidence law” and of “blow[ing] up the Federal Rules” with “a radical change” to the Rule 703 framework for admitting expert testimony. This is an obvious exaggeration, but explaining why merits a later post to unpack the logical foundation of Rule 703.
Beyond the hearsay issue, based on little more than sketchy suggestions from the Deputy Solicitor General at oral argument, Justice Kagan proposed that laboratory documentation could be introduced with no opportunity for confrontation if its “primary purpose” was for accreditation, quality control, or unofficial “notes to self.” Two of the seven Justices signing the majority opinion defected from this part of it. Justice Gorsuch expressed broader skepticism of the primary-purpose tests the Court had introduced in previous Confrontation Clause cases. Already, crime laboratories are talking about how to restructure or rewrite their documentation to fit into these new, nontestimonial categories. \2/ As I see it (so far), the nature of forensic science makes these alleged purposes too intertwined with the knowing production of evidence for a “primary purpose” test to disentangle them, but that conclusion also begs for later explanation.
In any event, the Supreme Court unanimously vacated the state court of appeals order affirming Smith's conviction and remanding for the Arizona Court of Appeals “[t]o address the additional issue of whether Rast's records were testimonial (including whether that issue was forfeited).” The state then conceded that it had forfeited the opportunity to argue that parts of the testimony were not “testimonial” hearsay under Crawford because it had not raised the argument in its appeal. The Arizona Court of Appeals remanded to the Yuma County Superior Court to vacate the judgment of conviction.
But this did not guarantee Jason Smith his freedom. The state could have tried him a second time. Perhaps Rast could be located to testify. Or, the lab could test the drugs again. (At trial, Longoni had testified that retesting would have taken only two to three hours.) After that, an analyst who did such testing could have testified to truly independent findings. On August 20, however, Jason Smith entered into a plea bargain, sparing the state the burden of retrying him. What concession he received in return, I do not know.
Note
- 144 S.Ct. at 1799. But see id. at 1802 (declining to resolve a dispute between the parties as to whether Longoni's references to the report indicated that he partially relied on it as opposed to only the notes).
- Consortium of Forensic Science Organizations, Untitled Memorandum, Aug. 20, 2024, https://thecfso.org/wp-content/uploads/2024/08/Smith-v-Arizona-Final.pdf
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