Smith v. Arizona: The Facts and the Outcome

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

1. 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).
   
2. Consortium of Forensic Science Organizations, Untitled Memorandum, Aug. 20, 2024, https://thecfso.org/wp-content/uploads/2024/08/Smith-v-Arizona-Final.pdf

A Draft Standard on "Terminology for a Suspected Pattern of Dental Origin"

The Academy Standards Board (ASB) of the American Academy of Forensic Sciences is seeking comments by September 9 on a Technical Report 194, First Edition, 2024, titled "Terminology for a Suspected Pattern of Dental Origin." Although only a "template" for organizing comments is listed on the ASB website, the draft standard can be found at https://www.aafs.org/sites/default/files/media/documents/194_TR_Ballot01.pdf.

The OSAC page on “Standards Open for Comment” (which you won't see by perusing the OSAC website unless you click on “How To Work With Us” in the navigation pane) says “NOTE: This is OSAC 2021-N-0030, Terminology for a Suspected Pattern of Dental Origin, currently on the OSAC Registry.” Does that mean the ASB committee believed that nothing in the OSAC product, which emerged with no review from an advisory scientific and technical panel of experts, needed improvement? It is good to go public as an SDO-approved standard for terminology unless someone objects and proposes something better? 

Alas, it is not that good. Although a discussion of the choice of various terms to define and the definitions themselves could occupy pages, it is too tedious an undertaking for me to write or for many readers to plough through. Suffice it to say that some of the standard has a stream-of-consciousness feeling to it. Like "spurious observation anomaly not intrinsically present feature not related to the source."

The larger question is why try to promulgate a free-floating standard terminology rather than articulate standard procedures with appropriate terms? What might these standard practices be? Presumably, the proposed terminology is a precursor to performing "suspected pattern of dental origin analysis," which is defined as "forensic examination, analysis, and determination of the pattern for potential links to dental origins." This "potential links" study seems to be subdivided into (1) "bitemark assessment analysis," (2) "bitemark analysis," (3) "bitemark comparison analysis," and (4) "bitemark individualization analysis." Can any of these analyses produce results of "evidentiary value" (defined as "information of sufficient usefulness to serve as the basis for making an empirically significant scientific determination")?

The dentists are not prepared to say so. But neither are they willing to list in their bibliography any of the well-known articles and reports concluding that demonstrations of the scientific validity of these analyses are little more than wishful thinking. Rather than claim that these terms refer to procedures that have "evidentiary value" or opine that they lack such value, they merely note that their definitions are "not an endorsement of [the] scientific validity" of the processes they are supposed to describe. Apparently, the drafters from OSAC are agnostics rather than atheists. Or maybe they have their doubts about "bitemark individualization analysis." That phrase is marked "deprecated." Yet, the process of "visual comparison" is not deprecated as unvalidated or invalid, and a note suggests that other "individualization method[s]" for bitemarks could be just dandy.

So the best comment might be a recommendation to jettison this standard. Researchers can use their own clearly defined terms in devising and validating procedures that can be used in criminal investigations that involve what might be toothmarks, bitemarks, or wounds from other sources and mechanisms. When demonstrably valid procedures become available, the time will be ripe for a standard with uniform terminology.

Meanwhile, promulgating these terms and definitions, even with the agnostic disclaimers, risks encouraging the acceptance of dubious forensic "science." The very existence of an expert standard with these terms and definitions might suggest that the words describe something meaningful and encourage testimony that the field has a standardized system of some kind. I can imagine testimony that

The terms I am using in the analysis of what I have determined to be bitemarks are generally accepted in forensic odontology, medicine, and forensic science. I am following the ASB technical report on the subject. The report was produced with funding from the National Institute of Standards and Technology and is included and recommended for adoption by the government-supported Organization of Scientific Area Committees for Forensic Science.

Is this what forensic science and the law needs?

“Predictive or Profiling Evidence” and Diaz v. United States

Today the Association of American Law School’s (AALS) Section on Evidence distributed the following announcement to its members:

In a divided decision, the Supreme Court recently concluded that expert testimony about the likely mental state of individuals arrested with drugs in their position is admissible in criminal trials under the Federal Rules of Evidence in Diaz v. United States, 602 U. S. ____ (2024). This decision was sharply contested in its own right, but also drew attention to an area of broader controversy in the law of evidence: the increasing use of "predictive" or "profiling" evidence, by which expert witnesses present testimony suggesting that an individual is more or less likely to have had a particular mental state or behaved in a particular way based on their personal circumstances or characteristics. Scholars who have written about this phenomenon have expressed disquiet about the use of such evidence (and some courts have limited the use of such evidence in edge cases involving particular prejudice or overbroad characterizations), but no consensus has emerged as to the reasons for objecting to predictive evidence or as to how to systematically distinguish between such evidence and other forms of indirect and circumstantial evidence that is routinely admitted. This panel brings together scholars to discuss predictive and profiling evidence from a variety of perspectives. Was the Supreme Court right to find such evidence consistent with the federal rules governing the admissibility of expert evidence? Is such evidence generally consistent with due process and equal protection concerns? Is it generally empirically sound? Do we need new federal rules or common law doctrines to limit the admissibility of some forms of predictive or profiling evidence?

Who can object to a scholarly program on the subject, even if it is hardly new, having been the subject of a multitude of opinions, a number of statutes, and even a previous AALS program decades ago? Hopefully, the courts and the professoriate have made some progress in understanding what has come to be called "framework evidence." Neither would it be fair to criticize a necessarily brief announcement for not defining "predictive or profiling evidence." Presumably, the evidence teachers do not need a definition.

But I was surprised to read my fellow law professors’ sweeping characterization of Diaz v. United States, 144 S.Ct. 1727 (2024), as establishing that "such evidence [is] consistent with the federal rules governing the admissibility of expert evidence" and "that expert testimony about the likely mental state of individuals arrested with drugs in their position [sic?] is admissible in criminal trials under the Federal Rules of Evidence." Although I doubt that the announcement will cause its narrow range of readers to believe that the case stands for more than it does, I do worry that the same kind of language will crop up in undiscerning judicial opinions and commentary on Diaz. Therefore, it may be be worth listing some problematic aspects of the statements.

First, the case plainly held that certain "expert testimony about the likely mental state of individuals arrested with drugs in their position [possession?] is" not "admissible in criminal trials under the Federal Rules of Evidence." Every Justice agreed that no expert can testify that a defendant charged with importing proscribed drugs knew that they were transporting drugs. That would be explicit ultimate-opinion testimony on a criminal defendant's state of mind. (There are cases limiting the Rule 704(b) ban to mental health professionals, but the Court did not consider that possible way to interpret the rule. It stuck with a more literal reading of the text.)

Second, no “predictive or profiling evidence” was introduced in the case, and only one Justice thought it worth discussing. Certainly, Diaz is not a case of a criminal profiler predicting (“inferring” would be more precise) the characteristics of a criminal from the type or manner of the crimes under investigation (or any other such “predictive or profiling evidence”). As the excerpts from the trial transcript reproduced below show, the witness did not claim such expertise; furthermore, the trial judge barred him from stating a belief about the defendant’s knowledge (although one could well think that his testimony made it plain enough what his belief was). 

Third, the issue before the Court was not admissibility under the rules of evidence writ large. It was the scope of a single part of a solitary rule. Federal Rule 704(b), which has no counterpart in the rules of most states, declares that no expert witness may "state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense" because "[t]hose matters are for the trier of fact alone." All that the Diaz Court held was that when such an opinion is not stated and is an inference that does not necessarily follow (as a matter of deductive logic) from the witness’s statements, then Rule 704(b) does not preclude its admission. It did not—and could not—have held that the Rule makes it admissible. Cf. David H. Kaye, The Ultimate Opinion Rule and Forensic Science Identification, 60 Jurimetrics J. 75 (2020).

Thus, Diaz should not be read as supporting—or opposing—the use of “predictive or profiling evidence” generally, or even in the subcategory of testimony offered to prove a defendant’s state-of-mind. 

More thoughts on the three opinions in the case and how the result fits into the range of possible interpretations of Rule 704(b) will appear in the upcoming supplement to The New Wigmore on Evidence: Expert Evidence § 2.2.3(b) (available online in VitalLaw) and, time permitting, in a further positing about the case here.

---

Excerpts from Trial Transcript
Mar. 18, 2021

The most pertinent portion of the testimony at issue in Diaz is as follows (with italics added):

BY MR. OLAH [Assistant US Attorney]:
Q. Where do you work?
A. I’m a special agent with Homeland Security Investigations.
Q. And how long have you been with HSI?
A. I’ve been a special agent since 1996. So going on 20 — I believe 28 years.
Q. Were you in law enforcement before joining HSI?
A. Prior to becoming a special agent, I was a U.S. Border Patrol agent. And prior to that, I was a sheriff’s corrections deputy.
***
Q. Have you been involved in drug trafficking investigations as a special agent with HSI?
A. Yes, I have.
Q. Approximately how many such investigations?
A. I’ve been involved in over 500 investigations dealing with distribution of drugs and also the – which would include the importation of drugs.
Q. And can you summarize for the jury the various investigation techniques you’ve used?
A. The techniques I’ve used, I’ve utilized wiretaps, where you actually listen to a drug trafficker talk on the telephone and how they conduct business. I’ve done controlled purchases where I utilized an undercover agent or a cooperating source. And we actually go out on the street and buy the drugs. I’ve spoken with cooperating defendants that have been arrested for drug trafficking related offenses. I’ve talked to cooperating sources that have information related to the distribution of drugs and drug trafficking organizations. I have spoken with other agents that work drug trafficking organizations and have worked on task forces with other agencies such as the Federal Bureau of Investigation, the Drug Enforcement Administration, and local police departments dealing with drug trafficking related crimes.
***
Q. Agent Flood, why are drugs imported into the United States?
MS. IREDALE: Objection, 401.
THE COURT: Overruled.
THE WITNESS: Based upon drugs that – some drugs are manufactured in Mexico and outside the United States. Therefore, they’re brought across the border, into the United States to be sold.
BY MR. OLAH:
***
Q. With respect to vehicles, can you describe the general process of movement from Mexico to wherever it goes?
A. From Mexico, they are packaged. They are put into *** a vehicle. *** I have seen drugs hidden in every area of a vehicle. *** And then they are transported from point A to point B across the border.
Q. And based on your training and experience, are the transporters compensated for their efforts?
A. Yes. It’s a job. It’s to take it from point A to point B.
***
Q. Agent Flood, based on your training and experience, are large quantities of drugs entrusted to drivers that are unaware of those drugs?
MS. IREDALE: Objection. 401, 403.
THE COURT: Overruled.
THE WITNESS: No. In extreme circumstances – actually, in most circumstances, the driver knows they are hired. It’s a business. They are hired to take the drugs from point A to point B.
BY MR. OLAH:
Q. And why aren’t – why don’t they use unknowing couriers, generally?
MS. IREDALE: Objection. 401, 403.
THE COURT: Overruled. You may answer.
THE WITNESS: Generally, it’s a risk of your – your cargo not making it to the new market; not knowing where it’s going; not being able to retrieve it at the ending point, at your point B. So there’s a risk of not delivering your product and, therefore, you’re not going to make any money.
***
Cross Examination
***
Q. So you said that unknowing couriers are very rare.
A. Yes.
***
Q. You work for HSI. Right?
A. Correct.
Q. And you’re aware that your own agency has identified many schemes where drug trafficking organizations use unknowing couriers. Right?
A. I – I know of three schemes that were primarily identified as being possible for an unknowing courier. It doesn’t necessarily mean that they are unknowing couriers. ***

Volunteer Bias in Interlaboratory Studies

The National Institute for Standards and Technology (NIST) is soliciting laboratories to join an "interlaboratory study" of CG-MS (gas chromatography mass spectrometry) for seized drug analysis. The announcement that I received, in abbreviated form, reads:

Forensic Science Quality Assurance Program
Seized Drugs General Method for GC-MS Reporting Limits Study

. . .
Study Design, Purpose, and Rationale
The goals of the study are 1) to capture the range of methods, instrumentation, and analytical approaches used in the community, 2) investigate mass spectral variability across methods, and 3) investigate how different reporting practices effect the limit of seized drug reporting.
Timeline and Commitment
Registration is currently open and will close on July 5, 2024. To participate in this study, laboratories must be accredited forensic laboratories based in the United States and have a valid Schedule I & II DEA license, a validated seized drug screening method using GC-MS, and a documented reporting practice. To be considered for the study, participants will be required to complete a pre-study questionnaire pertaining to the method that will be used for sample analysis. After acceptance into the study, participants will be provided a kit of 10 solutions containing mixtures of controlled substances and asked to analyze the solutions and report whether the analytes are present above their established reporting thresholds. Participants will also be required to report chromatographic peak height/area and retention time of each peak and provide the raw datafile from each run. Standards used for comparison will also be reported. [D]ue to a limited number of available kits, completion of the pre-study questionnaire does not guarantee acceptance into the study. . . .
Publication of Results
Upon closure of data entry, laboratories will receive a preliminary report containing a summary of reported data, consensus results, and a summary of analytes present in each mixture. [A] final report . . . will be made publicly available by Spring 2025. . . . NIST will not knowingly reveal laboratory identities associated with study results.
For questions, contact andrea.yarberry@nist.gov
To signup, go to: https://forms.gle/gPDU9aENHguPkw1D7

The effort is laudable, but one might ask why NIST is not beginning with a sampling frame of laboratories created to represent "the community" and then drawing a probability sample from this list. Will the laboratories that notice the announcement and ask to participate present the full "range of methods, instrumentation, and analytical approaches used in the community"? Will the volunteer sample be skewed toward higher quality labs? Will it include all the "different reporting practices [that] effect [sic] the limit of seized drug reporting [whatever this "limit" denotes in the population of laboratories]"?

Rigor in sampling may not be required to answer certain questions, but it seems relevant to determining what the sign-up form refers to as "the current landscape of GC-MS methods and associated reporting practices and how those factors effect [sic] the concentration of drug that is/is not ultimately reported." Certainly, it should be a consideration for the legal community if and when the results of the study are presented as an indication of "the known or potential rate of error" for GC-MS analysis as practiced in forensic-science laboratories (Daubert v. Merrell Dow Pharm., 509 U.S. 579, 594 (1993)).

ISO Standards on Forensic Science: Pay to Play?

"ISO, the International Organization for Standardization, brings global experts together to agree on the best way of doing things – for anything from making a product to managing a process." ^1/ For the last few years, it has been devising the following overarching set of standards for all of forensic science:

• Forensic sciences (TC 272) ISO/DIS 21043-1, Forensic sciences - Part 1: Terms and definitions - 5/27/2024, $58.00
• ISO/DIS 21043-3, Forensic Sciences - Part 3: Analysis - 5/26/2024, $62.00
• ISO/DIS 21043-4, Forensic Sciences - Part 4: Interpretation - 5/26/2024, $67.00
• ISO/DIS 21043-5, Forensic Sciences - Part 5: Reporting - 5/26/2024, $53.00 ^2/

These are

part of a series which, when completed, will include the different components of the forensic process from scene to courtroom ... . The series describes primarily “what” is standardized, not the “how” or “who”. Best practice manuals and standard operating procedures should describe “how” the requirements of this document would be met. ^3/

It sounds like the standards in progress will not specify "the best way of doing things." Will they merely list the things that are in need of "standardization"? Will they be too open-ended to constitute what the U.S. Supreme Court refers to as "standards controlling the technique's operation"^4/?

I cannot answer these questions because I have not seen the drafts that were open for public comment. Members of the public cannot read the drafts without paying IS0 the $240 listed above. If anyone who has paid to play has thoughts on these documents that they would like to share beyond the TC (Technical Committee) that drafted the standards, I'll post them--at no charge.

Notes

1. Int'l Org. for Standardization, About ISO.
2. ANSI Standards Action, Mar. 15, 2024, at 48.
3. ISO 21043-1:2018(en) Forensic sciences — Part 1: Terms and definitions.
4. Daubert v. Merrell Dow Pharm., 509 U.S. 579, 594 (1993).