The Supreme Court ruled on June 21 that prosecutors infringed on an Arizona drug defendant’s constitutional right to confront witnesses against him by using the testimony of a substitute expert witness who didn’t actually conduct the drug tests that another expert performed.
The Confrontation Clause in the Sixth Amendment states that “in all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.”
The Supreme Court overturned a lower court decision that upheld a guilty verdict against the defendant. The nation’s highest court returned the case to the Court of Appeals of Arizona for further consideration.
Although all nine justices agreed with the Court’s judgment in the case, not all of the justices agreed in full with the reasoning in the opinion.
The case concerns Jason Smith who entered not guilty pleas to five drug offenses in Yuma County, Arizona. The state sent the drug evidence to a state-run crime laboratory, which found the drugs in question were illegal, but the expert witness who testified against him at trial was different from the expert who performed the tests on the drugs.
He challenged the substitution of the witness but was still convicted.
Mr. Smith argued that this switching of expert witnesses violated his Sixth Amendment constitutional right to confront his accuser.
In the case, Mr. Smith was present at his father’s residence when police showed up and searched the premises. Officers discovered what they believed were methamphetamine, marijuana, cannabis wax, and assorted drug paraphernalia in a shed on the property.
The forensic analyst who tested the evidence, Elizabeth Rast, left her job before the trial. The state presented another analyst at trial, Greg Longoni, who testified about crime lab standards and protocols and read from Ms. Rast’s notes about the analysis. Mr. Longoni did not perform any tests on the material seized by police.
At the oral argument on Jan. 10, the justices seemed to agree that Mr. Longoni’s testimony violated Mr. Smith’s Sixth Amendment rights but had differing views about how to rule in the case. The justices spent much of the hearing discussing the notes that Ms. Rast made.
Mr. Smith’s attorney, Hari Santhanam, told the justices that when Mr. Longoni testified, he “was actually reciting verbatim the same statements that Rast made in her report to set forth her conclusions.”
But a lower court held that the testimony was permissible by “applying the legal fiction that an expert may state the basis for his underlying conclusions and opinions … without offering that basis for the truth,” the lawyer said.
That legal fiction, as a plurality of the Supreme Court previously recognized, “is unrealistic.”
“It’s unrealistic to expect that a jury … would understand that fiction. And, in this case, for the jury to have understood what Longoni’s opinions were and to have evaluated those opinions, it necessarily had to have considered the truth of those underlying statements that were offered to support them,” Mr. Santhanam said.
The State made a strategic decision to make Ms. Rast a witness against Mr. Smith, and in doing so, it used Mr. Longoni to recite Ms. Rast’s past statements. At that time, it was required to make Ms. Rast available for cross-examination.
Its failure to do so violated Mr. Smith’s confrontation right, the attorney said. Citing precedent, in the new opinion, Justice Kagan wrote that the Confrontation Clause forbids the use of “testimonial statements” of an absent witness unless she is “unavailable to testify, and the defendant has had a prior opportunity” to cross-examine her.
This prohibition applies in full to forensic evidence, the justice added.
“So a prosecutor cannot introduce an absent laboratory analyst’s testimonial out-of-court statements to prove the results of forensic testing.”
Here, an expert witness restated an absent lab analyst’s factual assertions to buttress his own opinion testimony. The Supreme Court has found that the Confrontation Clause’s requirements apply only when the prosecution relies on the out-of-court statements for “the truth of the matter asserted,” she wrote.
Some state courts have held that this condition is not met when an expert repeats another analyst’s statements as the basis for his opinion, but “we reject that view.”
When an expert reiterates an absent analyst’s statements to support his opinion, and the statements “provide that support only if true, then the statements come into evidence for their truth.”
As the current dispute shows, that will generally be the case when an expert relays an absent lab analyst’s statements as part of offering his opinion.
“And if those statements are testimonial too—an issue we briefly address but do not resolve as to this case—the Confrontation Clause will bar their admission,” Justice Kagan wrote.
Justice Samuel Alito filed an opinion concurring in the Court’s judgment but criticized aspects of the Court’s opinion. Chief Justice John Roberts joined the opinion.
“Today, the Court inflicts a needless, unwarranted, and crippling wound on modern evidence law,” Justice Alito wrote.
Although it used to be the practice that expert witnesses were required to express their opinions as responses to hypothetical questions, eventually, “this highly artificial, awkward, confusing, and abuse-laden form of testimony earned virtually unanimous condemnation.”
Then, more than a century ago, jurists began to recommend that courts give up on the required use of hypotheticals, and more than 50 years ago, the Federal Rules of Evidence did so.
But in the new Supreme Court opinion, the Court declares that “a prosecution expert will frequently violate the Confrontation Clause when he testifies in strict compliance with the Federal Rules of Evidence and similar modern state rules.”
Now, the Court would have experts return to the form that was abandoned a half-century ago.
“There is no good reason for this radical change,” Justice Alito added.
