Decision alert: Supreme Court unanimously finds confrontation clause affected when testifying expert provides basis for opinions of absent expert

On 21 June 2024 in Smith vs Arizonathe Supreme Court unanimously held that if an expert relays the testimony of an absent laboratory analyst in support of the expert’s opinion, and the testimony provides that support only if it is true, then those testimony counts as evidence of its truth. Consequently, they violate the Confrontation Clause of the Sixth Amendment. Justice Kagan delivered the majority opinion for the Court, reversing the Arizona Court of Appeals’ decision and remanding the case.

As previously summarized in Dykema’s February 2024 issue, Jason Smith was charged with five drug offenses. The drug evidence was sent to a crime lab for testing. A forensic analyst who was to serve as the prosecution’s trial expert performed the testing and documentation but was unavailable for the trial. The state wanted to present the results through a “surrogate expert,” but Smith objected because the replacement expert had not performed any testing or quality assurance checks and had not communicated with the previous expert. Nevertheless, the replacement expert was allowed to testify and the jury found Smith guilty. The Arizona Court of Appeals affirmed the verdict.

The Supreme Court reversed the ruling. The Confrontation Clause states that “in all criminal proceedings, the accused shall have the right to be confronted… with the prosecution witnesses.” The clause thus protects the accused’s right to cross-examination by limiting the prosecution’s ability to introduce testimony from people not present in the courtroom. The court’s opinion focused on whether the non-testifying expert’s testimony was given because of its truth or to explain the testifying expert’s opinion. It ruled that the original expert’s testimony was given because of its truth because it was admitted to support the basis of the testifying expert’s opinions. And those opinions were based on the assumption that the original expert’s testimony was true. However, the court decided not to resolve whether the testifying expert’s testimony was testimonial, a question that takes into account the “primary purpose” of the testimony, and remanded the case for that question to be considered first by the state court.

Justice Thomas filed a concurring opinion agreeing that the state court should assess whether the statements were testimonial but should not examine the “primary purpose” of each statement. Instead, it should consider whether the statements exhibit the requisite formality and solemnity to be considered testimonial. Justice Gorsuch filed a concurring opinion expressing disapproval with both the intent to determine whether the statement was testimonial and the primary purpose test. Finally, Justice Alito filed a concurring opinion, joined by Chief Justice Roberts, to disagree with the contention that expert testimony often violates the Confrontation Clause even when given in strict accordance with the Federal Rules of Evidence and similar modern state rules.

Bring away

• A defendant has the right to confront the expert who evaluated the materials, conducted the tests and prepared the documentation that served as the basis for his or her report.

For more information, please contact Chantel Febus, James Azadian, Cory Webster, Christopher Sakauye, Monica Harris, Puja Valeraor A. Joseph Duffy, IV.