Crawford - Williams - Smith, The Confrontation Cases
The United States Supreme Court in Smith v. Arizona just ruled that “When an expert conveys an absent analyst’s statements in support of his opinion, and the statements provide that support only if true, then the statements come into evidence for their truth.”
This is an extension of a long line of cases starting with Crawford v. Washington 541 U.S. 36 (2004) In Crawford, the Supreme Court reformulated the standard for determining when hearsay statements in criminal cases are permitted under the Confrontation Clause of the Sixth Amendment.
We hear about a lot of 6-3 U.S. Supreme Court decisions but there is a rare 9-0 vote that was just handed down in the case of Smith v. Arizona. The involved a conviction for drug possession. The Williams case was decided after Crawford but before Smith v. Arizona and I will discuss how Williams was unclear and led to the Smith decision.
The Facts in Smith v. Arizona
The defendant, Jason Smith objected to an expert witness who gave drug analysis testimony even though this expert didn’t do the drug test. So why have this expert testify at all was the logic. The so-called expert was basically just reading what someone else wrote. The legal basis for the objection was that Mr. Smith a right to CONFRONT and CROSS-EXAMINE the actual witness against him. A proxy or reader or cohort of the actual person doesn’t work as a substitute. This is the basic and long established Sixth Amendment constitutional right “to be confronted with the witnesses against him.”
Now the state (Arizona) wasn’t totally out to lunch, they had some good arguments as well. The testing came after police officers executed a search warrant and looked in a shed on land owned by the defendant’s dad.
They found what they thought was methamphetamine and marijuana. The drugs (or not!) were tested by Elizabeth Rast who would have qualified as an expert if she had personally testified. But she didn’t because she no longer worked for the state. She left a report and another qualified expert reviewed her work and gave an opinion.
I Am An Expert but I Didn't Test the Drugs
This expert (Greggory Longoni) was a qualified forensic scientist from the Department of Public Safety. He agreed that the drugs were methamphetamine and marijuana.
The State of Arizona’s courts thought this was fair. They found that expert Longoni gave his own independent opinion and that Mr. Smith had the ability to cross-examine him. The jury knew that Longoni had not personally tested the substances and the jury could consider that fact in assessing the accuracy of Longoni’s opinion. Justice Kagan wrote the opinion overturning the Arizona courts. She pointed out that even though Longoni was an expert, at its core opinion was formed because “he accepted the truth of what Rast had reported about her work in the lab — that she had performed certain tests according to certain protocols and gotten certain results.” His faith, his assumption and his opinion turned on facts and these facts had not been tested. He did not know anymore than you know as you read this, whether Rast really tested the substances and you don’t know for a fact (and neither did Longoni) whether or not she tested properly.
Your Dog Could Testify
Put differently, once you assume that Rast did the tests properly and her tests showed “methamphetamine” and “marijuana” your dog could get on the stand and raise its paw and give the same testimony as Longini.
Now the case ends up being a lot more complicated than this.
The Supreme Court Agreed 9-0 and Disagreed 5-4
Justice Thomas, Kagan, Gorsuch and Alito all joined in sending the case back to Arizona to review certain issues but their logic and the scope of the review varied. The short version of where they disagreed is in the application of what is deemed the “primary purpose” test.
The issue is the primary purpose of the Rast forensic lab report was for law enforcement INVESTIGATION or for ACTUAL PROSECUTION in court. The Court decision was that when the expert repeated the missing lab analyst’s statements (and those statements are useful only if the statements of Rast are actually true) the Confrontation Clause of the Sixth Amendment is triggered. Justice Alito (and joined by Roberts) believed that the issue was not whether the other testimony was considered but that the in court expert Longoni, “stepped over the line and at times testified to the truth of the matter asserted”. He took information and gave it a stamp of approval without facts to support that and this is what triggered the 6th Amendment violation.
Williams v. Illinois Decision - The Decision that Didn't Decide
This decision is an extension of an earlier complicated ruling. In Williams v. Illinois is 567 U.S. 50 (2012), the Supreme Court addressed the admissibility of expert testimony regarding DNA evidence produced by a non-testifying analyst. That is very similar to Smith v. Arizona. The Supreme Court held that such testimony did NOT violate the Confrontation Clause of the Sixth Amendment.
There were 4 votes based on the concept that an earlier case on this topic (Crawford) was not violated because it testimony wasn’t being offered for its truth, but just to explain in general and as background, the expert’s opinion.
Four Justices to the opposite view and they thought that there was essentially no reason to relate the missing expert’s opinion except to endorse it and stamp it as true. Justice Thomas was the tie breaker. He voted against the defendant even though agreed with the defendant. Justice Thomas agreed that the reason for telling the jury what the missing person, missing witness thought was because the testifying expert was claiming it was true. Justice Thomas ruled against the defendant because he thought that the missing expert’s opinion was a type of statement that wasn’t formal. He believed that only “formal” statements (like statements made to police interrogation with the anticipation the statement might be used at trial) were subject to 6th Amendment protections.
The Takeaway
While Smith v. Arizona leaves a lot open, the 9-0 majority at least now accepts that . “When an expert conveys an absent analyst’s statements in support of his opinion, and the statements provide that support only if true, then the statements come into evidence for their truth.”
The author of this article, Daniel Horowitz is a State Bar of California, Board of Legal Specialization certified criminal defense specialist. He works in courtrooms throughout the United States and has been lead counsel in over 200 jury trials.