Smith v. Arizona:  Expert’s reliance on another expert’s work for their opinion is “for the truth” and implicates Confrontation Clause

By Greg Mermelstein, Deputy Director & General Counsel, Missouri Public Defender

When an expert witness testifies to an absent lab analyst’s factual assertions to support his own opinion, the absent analyst’s statements are being offered for “the truth of the matter asserted” under the Confrontation Clause, the U.S. Supreme Court held June 21 in Smith v. Arizona.

Police found large quantities of what appeared to be drugs on Jason Smith’s property. Smith was ultimately charged with possessing methamphetamine and marijuana for sale.

A lab analyst, Elizabeth Rast, conducted testing, and prepared notes and a report which concluded the items found on the property were methamphetamine and marijuana. But by the time of trial, Rast had left the lab.

The prosecution replaced Rast at trial with Greggory Longoni, a forensic expert who testified that he came to his own “independent opinion” that the items were methamphetamine and marijuana, based on the drug testing performed by Rast and her records.

Smith objected to Longoni’s testimony on grounds that it violated the Sixth Amendment Confrontation Clause.

The Arizona courts rejected Smith’s claim, and ruled that the Confrontation Clause wasn’t implicated because the underlying facts provided by Rast were used only to show the “basis” of Longoni’s opinion and “not to prove their truth.”

Holding

The Supreme Court, in an opinion joined at least in part by seven justices, held the statements were offered for their truth.

The Confrontation Clause’s requirements apply only when the prosecution uses out-of-court statements for “the truth of the matter asserted”, the Court said.

“When an expert conveys an absent analyst’s statements in support of his opinions, and the statements provide that support only if true, then the statements come into evidence for their truth”, the Court said. “[T]hat will generally be the case when an expert relays an absent lab analyst’s statements as part of offering his opinion.”

“The whole point of the prosecutor’s eliciting such a statement is to establish – because of the [statement’s] truth – a basis for the jury to credit the testifying expert’s opinion”, the Court said.

“Longoni could opine that the tested substances were marijuana, methamphetamine, and cannabis only because he accepted the truth of what Rast had reported about her work in the lab”, the Court said. “If Rast had lied about all those matters, Longoni’s expert opinion would have counted for nothing, and the jury would have been in no position to convict.”

“So the State’s basis evidence – more precisely the truth of the statements on which its expert relied – propped up its whole case”, the Court said. “But the maker of those statements was not in the courtroom, and Smith could not ask her any questions.”

The Confrontation Clause bars admission 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”, the Court said.

Approving the practice which the State used at Smith’s trial would “allow for easy evasion” of the Confrontation Clause, the Court said.

The Court noted that the Confrontation Clause would allow Longoni to testify to some matters.

“Because Longoni worked in the same lab as Rast, he could testify from personal knowledge about how that lab typically functioned – the standards, practices, and procedures it used to test seized substances, as well as the way it maintained chain of custody”, the Court said.

“Or had he not been familiar with Rast’s lab, he could have testified in general terms about forensic guidelines and techniques,” the Court said.

He “might have been asked – and could have answered – any number of hypothetical questions, taking the form of: If or assuming some out-of-court statement were true, what would follow from it?”, the Court said.

Although the Court held that Longoni’s testimony about Rast’s work was offered for its truth, the Court did not rule on whether the testimony was also “testimonial.”

The Confrontation Clause bars only statements offered for their “truth” and which are “testimonial” – “and those two issues are separate from each other”, the Court said.

The testimonial inquiry “focuses on the ‘primary purpose’ of the statement, and in particular on how it relates to a future criminal proceeding”, the Court said. A court “must determine, given all the ‘relevant circumstances,’ the principal reason it was made.”

“But that issue is not now fit for our resolution”, the Court said. “The question presented in Smith’s petition for certiorari did not ask whether Rast’s out-of-court statements were testimonial.”

“Because we are a court of review, not of first view, we will not be the pioneer court to decide the matter.”

The Court vacated the Arizona court’s judgment and remanded for further proceedings.

Concurring Opinions

Justice Thomas concurred in part, but disagreed with the Court that whether a statement is “testimonial” depends on its “primary purpose.”

Thomas would not “attempt to divine a statement’s ‘primary purpose’”, but would look to whether a statement has the “requisite formality and solemnity” to qualify as “formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.”

Justice Gorsuch concurred, but also questioned the test used to determine if a statement is “testimonial.”

The “primary purpose” test leads to “confusion”, Gorsuch said.

Return of Hypothetical Questions?

Justice Alito, joined by Chief Justice Roberts, concurred in the result, but said the case should have been decided by applying the Federal Rules of Evidence.

“I agree with that bottom line, but not because of the majority’s novel theory that basis testimony is always hearsay”, Alito said. “Rather, I would vacate and remand because the expert’s testimony is hearsay under any mainstream conception, including that of the Federal Rules of Evidence.”

Under those rules, “Longoni could have offered his expert opinion that, based on the information in Rast’s report and notes, the items she tested contained marijuana or methamphetamine”, Alito said. “In so answering, he would acknowledge that he relied on Rast’s report and lab notes to reach his opinions.”

“But he could not testify that any of the information in the report was correct – for instance, that Rast actually performed the tests she recorded or that she did so correctly”, Alito said.

“The strictures of the Federal Rules here track the requirements of our Confrontation Clause precedents”, Alito said.

“As it happens, I agree with the Court that Longoni stepped over the line and at times testified to the truth of the matter asserted”, Alito said.

But the opinion “inflicts a needless, unwarranted, and crippling wound on modern evidence law” because it suggests that parties will be required to use hypothetical questions in examining experts – a form of questioning that “was buried a half-century ago” with the adoption of modern Rules of Evidence, Alito said.

“There is no good reason for this radical change,” Alito said.