by Sam Rutherford

The Supreme Court of the United States unanimously held that the Sixth Amendment’s Confrontation Clause prohibits an expert witness from testifying about another non-­testifying expert’s statements and conclusions made in connection with scientific analysis where the defendant had no prior opportunity to cross-­examine the non-­testifying expert and the non-­testifying expert’s statements and conclusions were relied on by the testifying expert as being true and accurate.

Background

In December 2019, in Yuma County, Arizona, local police officers executed a search warrant on a rural property. They found Jason Smith hiding inside a shed, together with what appeared to be drugs and drug-­related items. Smith was charged with possession of methamphetamine and marijuana for sale and possession of drug paraphernalia. Smith pleaded not guilty, and a trial date was set.

In preparation for trial, the prosecutor’s office sent the substances seized from the shed to the state crime lab for forensic analysis. Importantly, the prosecutor’s written request that accompanied the substances named Smith as the person associated with them, listed the charges against him, and noted that the case was set for trial.

Analyst Elizabeth Rast contacted the prosecutor’s office concerning the substances and then performed the requested tests. She prepared typed notes and an official report documenting her lab work and the results. She concluded that the substances seized were in fact methamphetamine and marijuana.

The prosecution originally planned on calling Rast as a witness at Smith’s trial, but just three weeks before it started, she quit working for the crime lab. As a result, the State decided to call analyst Greggory Longoni as a witness instead. But Longoni did not retest the substances to independently determine they were what Rast had determined them to be. Instead, he testified at trial that in his independent, expert opinion, based solely on his review of Rast’s notes and report, the substances police seized from the shed were methamphetamine and marijuana. Smith was convicted.

Smith timely appealed, arguing that Longoni’s testimony concerning Rast’s work product violated his Sixth Amendment Confrontation Clause rights. He argued that the real witness against him was Rast, but she was unavailable as a witness. However, he did not have a prior opportunity to cross-­examine her about her lab work and the test results. The Arizona Court of Appeals rejected Smith’s Confrontation Clause challenge, ruling that under state evidentiary rules, Rast’s notes and report were not admitted at trial for the truth of the matter asserted in them but merely to establish the basis for Longoni’s in-­court testimony about his own expert opinion. Thus, the state appellate court held the Sixth Amendment does not prevent Longoni from testifying at Smith’s trial.

The Arizona Supreme Court denied discretionary review, but the U.S. Supreme Court granted certiorari to determine whether the Sixth Amendment prohibits “an expert witness [from testifying about] an absent lab analyst’s factual assertions to support his own opinion testimony.” The Court concluded that it does.

Analysis

The Sixth Amendment to the U.S. Constitution, made applicable to the States via the Fourteenth Amendment, provides in pertinent part that “[i]n all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.” This is referred to as the Confrontation Clause. The Court observed: “In operation, the Clause protects a defendant’s right of cross-­examination by limiting the prosecution’s ability to introduce statements made by people not in the courtroom.”

For much of recent history, and perhaps contrary to what seems to be the plain wording of the Confrontation Clause, the Supreme Court permitted prosecutors to present out-­of-­court statements by non-­testifying witnesses so long as the witness was unavailable and the statement bore “adequate indicia of reliability.” Ohio v. Roberts, 448 U.S. 56 (1980). What this meant in practice was that if an out-­of-­court statement was admissible under a “firmly rooted” exception to court rules prohibiting hearsay, it was also admissible under the Confrontation Clause. Id.

This practice had always been met with some skepticism by constitutional scholars and judges alike because it essentially collapsed the Confrontation Clause’s guarantee of face-­to-­face testimony into a glorified court rule regarding admissibility of hearsay statements. So, in Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court abandoned the holding in Roberts as being “fundamentally at odds with the right of confrontation.” The Confrontation Clause requires not just that evidence be reliable “but that reliability be assessed in a particular manner: by testing in the crucible of cross-­examination.” Crawford.

Notably, the Confrontation Clause “applies only to testimonial hearsay.” Davis v. Washington, 547 U.S. 813 (2006). First, the Clause is limited to “testimonial statements.” Id. The term applies to “prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” Id. In Melendez-­Diaz v. Massachusetts, 557 U.S. 305 (2009), the Supreme Court explained that testimonial certificates regarding the results of forensic analysis were created “under circumstances which would lead an objective witness reasonably to believe that the statement[s] would be available for use at a later trial.” Second, the Confrontation Clause only prohibits the introduction of “hearsay,” which is statements made out-­of-­court and offered “to prove the truth of the matter asserted.” Anderson v. United States, 417 U.S. 211 (1974).

The facts in Crawford are a perfect example of these constitutional principles at work. In that case, the defendant, Michael Crawford, stabbed a man, Kenneth Lee, who allegedly tried to rape his wife, Sylvia. The police arrested Crawford and his wife, and they both gave inculpatory statements after waiving their Miranda rights.

Sylvia did not testify concerning her statements to police because of a state marital privilege statute that prohibits one spouse from testifying against another without the non-­testifying spouse’s consent. However, state hearsay rules permitted the prosecutor to admit a tape recording of Sylvia’s statements to police during Crawford’s trial. His objection to their admission on Sixth Amendment grounds was overruled under Robert’s “indicia of reliability” test.

The Supreme Court found that these statements were clearly testimonial, were offered for the truth of the matter asserted therein, that Sylvia was unavailable to testify because of the marital privilege statute, and that Crawford had not been afforded a prior opportunity to cross-­examine her. Thus, admission of her tape-­recorded interrogation violated the Confrontation Clause. Crawford; see also Davis v. Washington, 547 U.S. 813 (2006) (statements by victim to 911 operator identifying the defendant as assailant were not testimonial, but victim’s statements at crime scene to a detective were).

But because the Crawford Court did not attempt to define the exact contours of “testimonial hearsay,” lower courts reached varying conclusions on this issue. One such case ultimately made its way to the U.S. Supreme Court in Melendez-­Diaz v. Massachusetts, 557 U.S. 305 (2009). In that case, the defendant was charged with trafficking cocaine in violation of state law. The prosecution did not call as a witness at the defendant’s trial the crime lab analyst who tested the substances but instead presented sworn certificates from the analyst stating that the substance in fact contained cocaine.  

The Melendez-­Diaz Court reversed the defendant’s conviction, reasoning that regardless of the name assigned to the certificates, they were the functional equivalent of testimony by sworn affidavit, which the Confrontation Clause was specifically intended to prohibit. Melendez-­Diaz. Although there may be other and sometimes even better ways to ensure that forensic test results are reliable, “the Constitution guarantees one way: confrontation. We do not have license to suspend the Confrontation Clause when a preferable trial strategy is available.” Melendez-­Diaz.

Melendez-­Diaz thus made clear that the Confrontation Clause applies to forensic reports. But what if one expert takes the stand and describes the work and results of another, non-­testifying expert? That situation was addressed in Bullcoming v. New Mexico, 564 U.S. 647 (2011). In that case—a prosecution for drunk driving—the prosecutor called an expert to testify about machine generated test results showing that the defendant had driven drunk, but it was not the expert who had administered the test. The testing expert had been placed on administrative leave prior to trial but had prepared an unsworn report regarding his testing procedures and the results. 

The Bullcoming Court ruled that another expert could not take the stand and simply read the non-­testifying expert’s conclusions to the jury consistent with the Sixth Amendment. The “surrogate testimony,” the Bullcoming Court explained, “could not convey what [the certifying analyst] knew or observed” about “the particular test and testing process he employed.” Instead, “when the State elected to introduce [the] certification,” its author—and not any substitute—“became [the] witness [that the defendant] had the right to confront.” Bullcoming.

And finally, we come to the one case that caused all the confusion leading to the Supreme Court’s decision in the present case—Williams v. Illinois, 567 U.S. 50 (2012). In that case, the defendant, Sandy Williams, was prosecuted for rape. State police sent vaginal swabs from the victim to a private lab for testing. The private lab sent back a male DNA profile from semen extracted from the swab, which was used by a state crime lab analyst to match against the DNA profile obtained from Williams’ blood. No one from the private lab testified at trial. The state crime lab expert testified but did not and could not testify as to the accuracy or veracity of the private lab’s work. In fact, the state crime lab expert could not even verify that the semen sample purportedly containing Williams’ DNA came from the rape victim. Williams was convicted, and his case ultimately reached the Supreme Court.

Presumably, Williams should have easily prevailed on his Confrontation Clause challenge under Bullcoming because, just as in that case, crucial evidence against him had been admitted through a surrogate expert. Unfortunately, the Williams Court issued a fractured opinion that failed to produce a majority opinion and has resulted in confusion for the past 12 years among the lower courts.

In the plurality opinion affirming Williams’ conviction, Justice Alito, joined by Chief Justice Roberts and former Justices Kennedy and Breyer, held that the state expert was properly permitted to testify about the private analyst’s test results because they were facts underlying the state expert’s opinion but were not themselves presented for the truth of the matter asserted therein. In other words, the private analyst’s findings served “the legitimate nonhearsay purpose of illuminating the expert’s thought process.” Williams. Thus, the plurality opinion determined that Williams’ right to confrontation was not implicated at all by the expert testimony.

The remaining five members of the Williams Court, however, rejected this view in two separate opinions. Justice Kagan, with whom Justice Sotomayor and the late Justices Scalia and Ginsburg joined, wrote that the expert testimony in Williams’ case clearly violated the Confrontation Clause because the results of the non-­testifying private analyst’s tests were unquestionably presented at trial through the state expert for the truth of the matter asserted therein. Williams (Kagan, J., dissenting). As Justice Kagan explained, “[T]he utility of the [private analyst’s] statement that [the state expert] repeated logically depended on its truth.” Id.

Justice Thomas, however, reached a different conclusion, and it is his opinion that threw the law on this issue into disarray. Justice Thomas agreed with Justice Kagan’s opinion that the private analyst’s test results were presented for the truth of the matter asserted therein, but he reasoned that the report was not testimonial because it lacked sufficient formality. According to Thomas, the private analyst’s “report lacks the solemnity of an affidavit or deposition, for it is neither a sworn nor a certified declaration of fact.” Because, in his view, the report was not testimonial, it fell outside the scope of the Confrontation Clause. Williams (Thomas, J., concurring). Therefore, Williams lost even though five Justices agreed that the private analyst’s report was in fact presented through a surrogate expert for the truth of the matter asserted therein.

Turning to the present case, the Court began its analysis by acknowledging that its “opinions in Williams ‘have sown confusion in courts across the country’ about the Confrontation Clause’s application to expert opinion testimony.” Quoting Stuart v. Alabama, 139 S. Ct. 36 (2018) (Gorsuch, J., dissenting from denial of certiorari). The Court recognized that the Confrontation Clause “applies solely to ‘testimonial hearsay,’” quoting Davis, which “means the Clause ‘does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.’” Quoting Crawford. “So a court analyzing a confrontation claim must identify the role that a given out-­of-­court statement—here, Rast’s statements about her lab work—served at trial. On that much, indeed, the entire Williams Court agreed,” the Court stated.

Consequently, the Court stated: “If Rast’s statements came in to establish the truth of what she said, then the Clause’s alarms begin to ring; but if her statements came in for another purpose, then those alarms fall quiet.” Smith argued that Rast’s report was clearly admitted for the truth of the matter asserted therein (i.e., her written statements were conveyed to the jury through Longoni to establish what actually happened in the lab). The State, however, contended that Rast’s report was not admitted for its truthful character but as the “basis” for Longoni’s independent, expert opinion.

The State pointed to Arizona Evidence Rule 703 that (like its federal counterpart and those in most other states) permits an expert to testify about facts supporting his opinion that would otherwise be considered inadmissible hearsay. However, the Court rejected that argument, stating that “[e]videntiary rules, though, do not control the inquiry into whether a statement is admitted for its truth.” Instead, a court faced with a Confrontation Clause objection must “conduct an independent analysis of whether an out-­of-­court statement was admitted for its truth,” according to the Court. 

With this framework in mind, the Court had little trouble concluding that Rast’s out-­of-­court statements were presented to the jury for the truth of the matters attested to therein. “If an expert for the prosecution conveys an out-­of-­court statement in support of his opinion, and the statement supports that opinion only if true, then the statement has been offered for the truth of what it asserts. How could it be otherwise?” The Court explained that saying hearsay testimony is admitted solely for the purpose of supporting a testifying expert’s conclusions does not alter this fact because the “jury cannot decide whether the expert’s opinion is credible without evaluating the truth of the factual assertions on which it is based.”

This is exactly what happened in Smith’s case. “Rast’s statements thus came in for their truth, and no less because they were admitted to show the basis of Longoni’s expert opinions. All those opinions were predicated on the truth of Rast’s factual statements,” according to the Court. Longoni did not independently test any of the substances seized by police to determine whether they were in fact what Rast’s report said they were. He could reach his expert opinion only by accepting at face value that Rast did what she said she did in the lab. But the defendant was entitled to challenge Rast’s conclusion through cross-­examination. Smith.

The remaining question was whether Rast’s notes and report, conveyed to the jury through Longoni’s testimony, were testimonial in nature, which is an independent matter from whether they are hearsay (i.e., out-­of-­court statement presented for the truth of the matter asserted therein). Whether a statement is testimonial turns “on the ‘primary purpose’ of the statement, and in particular on how it relates to a future criminal proceeding,” stated the Court. A court must identify the out-­of-­court statement sought to be introduced at trial and then “determine, given all the ‘relevant circumstances,’ the principal reason it was made.” Quoting Michigan v. Bryant, 562 U.S. 344 (2011).

Smith’s petition for writ of certiorari did not ask whether Rast’s out-­of-­court statements were testimonial and instead simply assumed that they were. Moreover, the record suggested that the State may have forfeited any argument to the contrary by not raising it in the state appellate court. In any event, the Court was unwilling to resolve these matters in the first instance, so it remanded the question to the Arizona Court of Appeals.

It did, however, provide some guidance—noting that the appellate court must first identify what specific statements were admitted at trial (i.e., Rust’s notes, her report, or both) and then determine the primary purpose of those statements. If they were prepared for something other than presentation in court, e.g., internal quality control procedures or personal reminders, they are not testimonial and fall outside the scope of the Confrontation Clause. But if “the document’s primary purpose [had] ‘a focus on court,’” then it is testimonial, the Court instructed.

Conclusion

Accordingly, the Supreme Court reversed the judgment of the Arizona Court of Appeals affirming Smith’s convictions and remanded the case to that court for further proceedings consistent with its opinion. See: Smith v. Arizona, 144 S. Ct. 1785 (2024).

Editor’s note: Anyone interested in the topic at issue in Smith—the applicability of the Confrontation Clause to the opinion testimony of a substitute expert witness who relies on the statements and forensic testing performed by an absent, non-­testifying expert in forming such expert opinion testimony—is strongly encouraged to read the Court’s full opinion.   

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