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SCOTUS will again grapple with expert testimony and Confrontation

Smith v. Arizona, U.S.S.C. No. 22-899, cert. granted 9/29/23; Scotusblog page (containing links to briefs and commentary)

Question presented:

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.

Well, we’ll see what they do. If the Court can generate a majority opinion– something they it to do in Williams v. Illinois, 567 U.S. 50 (2012), which address much the same question–it may at least provide some guidance to the lower courts on whether and when a “substitute” expert can relay the statements of the expert who actually performed the forensic testing the government wants to introduce. Williams went 4-1-4. The four justices in the plurality would have held that a testifying expert may relay the testing expert’s statements to the jury because they form the basis for the testifying expert’s opinion. That is, they are probative of the soundness of the testifying expert’s opinion, rather than being admitted for the truth of the matter they assert (generally, the results of whatever testing was done).

This theory is, as a moment’s thought reveals, hogwash. As the dissenters and Justice Thomas in concurrence pointed out, the underlying statements give weight to the testifying expert’s opinion only if they are taken to be true. Otherwise, they’re of no probative value whatsoever.

As the petition says, Williams‘ competing and highly contestable rationales have left the nation’s other courts in a state of confusion. Our own high court has concluded, in State v. Griep and State v. Deadwiller, that Williams has no discernible holding and is thus limited to its facts. So perhaps we’ll get a more workable rule here.

It’s possible that this case could affect more than just “substitute expert” scenarios. Wisconsin, for example, has an evidentiary rule (Wis. Stat. § 907.03) permitting any otherwise inadmissible facts or data to be presented to the jury if “the court determines that their probative value in assisting the jury to evaluate the expert’s opinion or inference substantially outweighs their prejudicial effect.” Depending how the Court decides this case, that evidentiary rule could be curtailed or reshaped, at least where the facts or data at issue are “testimonial” and thus implicate the Confrontation Clause.

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