Supreme Court Dissects Sixth Amendment Rules of Evidence

In Smith v. Arizona, the Supreme Court dives into whether the Sixth Amendment’s Confrontation Clause allows the prosecution in a criminal trial to present testimony of an expert conveying the testimonial statements of a non-testifying expert. The question is whether the testimony is valid as an independent opinion and whether the non-testifying expert’s statements are not offered for their truth but to explain the testifying expert’s opinion.

Jason Smith faced charges related to five drug offenses and pleaded not guilty. The drug evidence was sent to a crime lab for testing. A forensic analyst, initially identified as the trial expert, conducted the testing and documented her work. However, when the trial arrived, she was no longer employed by the crime lab, so the state announced that it would present the results through a “substitute” expert. Smith objected because the substitute expert had not conducted any testing, quality assurance checks on prior analyses, or communicated with the former expert. Nevertheless, the substitute expert testified, and the jury found Smith guilty. The trial court denied Smith’s new-trial request, and the Arizona Court of Appeals affirmed.

During oral argument, Justice Thomas questioned the basis for considering evidence to be testimonial, and Justice Sotomayor noted that since the state had conceded that the evidence was testimonial, the Court should focus on whether it was offered for the truth of the matter asserted. Still, the Justices wanted to explore how to determine if the basis of the evidence was testimonial; Justice Kavanaugh suggested the use of Justice Thomas’s test for formality and solemnity. Justice Barrett drew attention to the primary-purpose test and asked if more information was needed to reach a conclusion on whether the primary purpose of the notes and report creates a substitute for trial testimony.

The Justices also reviewed other aspects of trial procedure that could have prevented the dispute. For instance, Justice Alito mentioned that the defense could have requested a jury instruction that the statements not be accepted. Justice Roberts suggested that the substitute, testifying expert’s limited knowledge could have been addressed on cross-examination, and Justice Gorsuch reminded the parties that had the opinion been based on personal knowledge, industry standard, or a hypothetical, it would not have been called into question. But, because the testimonial question did exist, Justice Gorsuch contended that Smith should have raised and preserved the issue sooner.

Other questions remained. Justice Thomas wondered how the circumstances would change if the notes were wrong or inaccurate. Justice Jackson asked if an expert has to be trusted when he says he reached his opinion independently especially when, as Justice Kagan pointed out, the substitute expert here kept referencing the non-testifying expert’s report for answers on the stand. And most of the Justices struggled to understand how a lab report or notes about tests and their results were not offered for the truth when the expert is expected to rely on them to reach a scientific conclusion.

The case was argued on January 10, 2024. A decision is expected later in the term. Stay tuned for Dykema’s client alert discussing the Court’s opinion.

For more information, please contact Chantel Febus, James Azadian, David Schenck, Cory Webster, Christopher Sakauye, McKenna Crisp, Monika Harris, or Puja Valera.