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SCOTUS addresses half of the Confrontation Clause analysis on substitute expert testimony; holds such testimony is generally hearsay

Smith v. Arizona, USSC No. 22-899, 6/21/2024, vacating and remanding Arizona v. Smith, No. 1CA-CR 21-0451 (Ariz. Ct. App. 2022) (unreported); Scotusblog page (with links to briefs and commentary)

SCOTUS unanimously holds that expert witness testimony restating an absent lab analyst’s factual assertions to support his or her own opinion is hearsay. However, the Court declined to address the second part of the Confrontation Clause test, whether the underlying evidence was testimonial, as the issue was undeveloped in this case.

(Our post on the cert grant is available here).

This case involves the testing of drugs. Officers executed a search warrant and found Smith with a large quantity of what appeared to be drugs. (p.11). One lab analyst at Arizona’s crime lab ran tests requested by the prosecutor, and prepared a set of typed notes and a signed report. (p.11). She concluded that of the eight items tested, four contained a usable quantity of methamphetamine, three “contained a usable quantity of marijuana, and one contained a usable quantity of cannabis. (p.11-12). After this analyst left her position, the state replaced her with another analyst who reviewed her notes and report and came to the same conclusions. (p.12). The substitute expert testified about what she had done (per the notes and report), and offered an “independent opinion” of the items’ identity. (pp.12-13).

The Sixth Amendment’s Confrontation Clause guarantees a criminal defendant the right to confront the witnesses against him. (p.4). Thus, the Clause bars the admission of “testimonial hearsay” (via another witness or some other evidentiary means) unless the witness is unavailable and the defendant had a prior chance to cross examine the witness. (pp.5-6). (For a description of the history of the Clause’s application to forensic testimony and reports, see Section I.A. of the opinion).

Ultimately, the Court’s ruling is quite simple. The state cannot get around the Clause by having a substitute expert review a report and come to his or her own opinions because those opinions are based on the truthfulness of the original report. To do so deprives the defendant “of the opportunity to challenge the veracity of the court-of-court assertions that are doing much of the work.” (p.15). After going through the testimony in this case to illustrate this point, the Court concluded:

Longoni could opine that the tested substances were marijuana, methamphetamine, and cannabis only because he accepted the truth of what Rast had reported about her work in the lab—that she had performed certain tests according to certain protocols and gotten certain results. And likewise, the jury could credit Longoni’s opinions identifying the substances only because it too accepted the truth of what Rast reported about her lab work (as conveyed by Longoni). If Rast had lied about all those matters, Longoni’s expert opinion would have counted for nothing, and the jury would have been in no position to convict. So the State’s basis evidence—more precisely, the truth of the statements on which its expert relied—propped up its whole case. But the maker of those statements was not in the courtroom, and Smith could not ask her any questions.


A secondary expert who did not conduct the analysis in question could still provide valuable testimony, such as describing from personal knowledge how the lab typically functioned (standards, practices, procedures to test substances, maintaining chain of custody, etc.). (p.21). However, in Smith,

the bulk of Longoni’s testimony took no such permissible form. Ibid. Here, the State used Longoni to relay what Rast wrote down about how she identified the seized substances. Longoni thus effectively became Rast’s mouthpiece. He testified to the precautions (she said) she took, the standards (she said) she followed, the tests (she said) she performed, and the results (she said) she obtained. The State offered up that evidence so the jury would believe it—in other words, for its truth. So if the out-of-court statements were also testimonial, their admission violated the Confrontation Clause. Smith would then have had a right to confront the person who actually did the lab work, not a surrogate merely reading from her records.


The next question—whether the out-of-court statements the substitute expert conveyed were testimonial—is not fit for resolution. The Court therefore remands the issue to the state court. (pp.22-23). In doing so, the majority (Kagan, Sotomayor, Kavanaugh, Barrett, and Jackson) presents two questions to guide the state court’s analysis: (1) “the court will need to consider exactly which of Rast’s statements are at issue” (since the testimony seems to have primarily come from the notes and not the report); and (2) the court must determine whether the primary purpose of the out-of-court statements, considering the range of recordkeeping activities that lab analysts engage in, has “a focus on court.” (pp.23-24).

The two of the three concurring opinions agree that the testimonial issue is not ripe for determination, but disagree as to the guidance the majority provides. Citing to several of his own concurrences, Thomas “adhere[s] to [his] view” that to be testimonial, statements must be “contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.” (pp.26-27). Thomas takes us back to English common law, and proposes that instead of “attempt[ing] to divine a statement’s ‘primary purpose,'” courts should “look for whether the statement is ‘similar in solemnity to the Marian examination practices that the Confrontation Clause was designed to prevent.'”  (pp.27-28).

Gorsuch writes separately due to his “worry that the Court’s proposed ‘primary purpose’ test may be a limitation of our own creation on the confrontation right.” (p.30). Gorsuch’s takes a much more expansive view of the meaning of testimony and expresses his concern that the proposed test will cause future confusion. (pp.30-31).

Alito, joined by Roberts, concurs only in judgment. He believes the majority “inflicts a needless, unwarranted and crippling wound on modern evidence law.” (pp.32). Read this concurrence if you’re particularly interested in a review of the full history of the law on expert testimony from English common law to the present, including the pitfalls of the required use of hypotheticals in the 19th and early 20th centuries. Alito’s main takeaway seems to be that scientists base their knowledge on the research and knowledge of others, and that the majority decision will stifle any ability to present “basis testimony.” He points out SCOTUS has repeatedly upheld limiting instructions where such testimony is not offered for its truth, citing Samia v. United States, which could be done in these situations as well. Alito agrees that by testifying that the facts from the report were true, the substitute expert effectively entered inadmissible hearsay into the record, thus implicating the Confrontation Clause. He believes the majority should have stopped there.

Practice Tip (with input from our Pretrial Motion Practice Coordinator): Wisconsin’s case law essentially mirrored that of Arizona’s in the underlying case here. See State v. Griep, 2015 WI 40, 361 Wis. 2d 657, 863 N.W.2d 567 (holding that expert’s review of defendant’s laboratory file, including forensic test results of analyst who was unavailable for trial, to form an independent opinion to which he testified did not violate defendant’s right of confrontation) & State v. Deadwiller, 2013 WI 75, 350 Wis. 2d 138, 834 N.W.2d 362. Thus, Smith has an immediate effect on our practice.

It is common for the state, relying on Griep, to present a substitute analyst at trial whenever the original analyst is no longer employed by the lab. These analysts typically review the records of the first analyst and then state an “independent opinion” that just so happens to be the same as the original analyst’s. There are two arguments the State has used to justify this; Smith kills one and seriously wounds the other.

The first argument is that the substitute expert is simply forming an independent conclusion and not introducing the original analyst’s opinions into evidence. That is essentially the holding in Griep, and factually that’s what happened in Smith. But the Supreme Court blows that out of the water, saying that relaying the absent analyst’s statements—even if it’s just part of the substitute analyst forming their own opinion—is still hearsay. (Note that this applies not just to the bottom line but to foundational issues, such as whether the test was performed in accordance with the lab’s policies.)

The second argument is that the original analyst’s statements are not testimonial. This one is trickier, because you’ll get a lot of variance depending on the exact records the analyst is relying on and why they were created. The majority in Smith endorses a “primary purpose” test. This creates a pretty big loophole–we anticipate the state arguing that everything but the final report was primarily created for administrative requirements such as accreditation or internal quality control purposes rather than for use in court. We’re going to have to push for a more expansive definition of “primary purpose” to win these arguments. Litigants may want to try to get courts to focus on the bigger picture of the primary purpose–why is the test being done in the first place? If the only reason the test is being done is so that the analyst can later testify in court, then aren’t the records of the testing being created for a testimonial purpose?

Although in Deadwiller, SCOW concluded that a substitute expert’s testimony didn’t violate the defendant’s confrontation rights for the same reason as Griep, the court of appeals had previously concluded that the report was not testimonial. See 350 Wis. 2d 138, ¶1. In coming to that conclusion, the COA relied the holding in Williams, in which five justices agreed that the underlying report was not testimonial (but did not agree on the test). The COA did not determine the appropriate test for whether statements are testimonial either. State v. Deadwiller, 2012 WI App 89, ¶12, 343 Wis. 2d 703, 820 N.W.2d 149, aff’d, 2013 WI 75, 350 Wis. 2d 138, 834 N.W.2d 362. Therefore, the COA opinion in Deadwiller offers little to no guidance, and courts in Wisconsin should apply the “primary purpose” test to determine if such reports are testimonial per the majority in Smith.

If you’d like materials to assist in a similar confrontation clause challenge, you should reach out to Adam Welch, Pretrial Motion Practice Coordinator.

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