Matthew R. Leisten, Ogle County State’s Attorney’s Office, Oregon
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Supreme Court: Absent Analysts' Statements Cannot Be Used Without Prior Cross-Examination
In Smith v. Arizona, 602 U.S. ___, ___ L.Ed.2d ___, 144 S.Ct. 1785 (2024), the U.S. Supreme Court ruled that when an expert witness conveyed an absent analyst’s statements in support of the expert’s opinion, and the statements from the absent analyst provided support for the expert witness’s opinion only if true, then the statement comes in for the truth of the matter asserted. The Court stated that if those statements are testimonial, then the Confrontation Clause will bar their admission. 144 S.Ct. at 1788.
In Smith, the defendant was charged with possession methamphetamine and cannabis for sale. The drugs were analyzed by forensic scientist Elizabeth Rast at a state laboratory. Rast concluded that the substances contained methamphetamine and cannabis. Rast documented her testing procedures in her notes. Id.
The state called another lab scientist, Greggory Longoni, to testify about Rast’s work at trial because Rast had left the crime laboratory. Longoni reviewed Rast’s notes and report in preparation for the trial. Longoni testified about what Rast conveyed about her testing (i.e., that that the substances contained methamphetamine and cannabis), and Longoni offered his own opinion that the substances contained methamphetamine and cannabis. The defendant was convicted at trial. 144 S.Ct. at 1796.
The defendant argued on appeal that his Confrontation Clause rights were violated because Rast did not testify at trial. Id.
The Supreme Court first determined that the defendant’s argument would only succeed if Rast’s statements came into evidence for their truth because the Confrontation Clause only applies to testimonial hearsay. The Clause does not bar the use of testimonial statements that are used for other purposes than establishing the truth of the matter asserted. Therefore, a court must identify the role of the of the out-of-court statements (like Rast’s statements used at trial) during the trial. 144 S.Ct. at 1797.
The defendant argued that Rast’s statements were conveyed through Longoni to establish that what happened in the lab actually happened, i.e., that she used certain procedures that identified the substances. The state argued that Rast’s statements did not come into evidence for their truth but instead showed the basis of Longoni’s independent opinion about the substances. The state emphasized throughout the appeals and to the U.S. Supreme Court that Arizona’s Rules of Evidence (just like Illinois Rule of Evidence 703) permit statements like from Rast for that purpose. 144 S.Ct. at 1797.
The Smith Court rejected the notion that evidentiary rules control whether a statement is being offered for their truth. 144 S.Ct. at 1797. The Court stated that “[i]f 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 the matter of what it asserts.” The defendant does not have an opportunity to challenge the veracity of the out-of-court assertions that were doing much of the work. 144 S.Ct. at 1799.
The Smith Court concluded that Rast’s statements came into evidence for their truth because they were admitted to show the basis of Longoni’s expert opinions, which were predicated on the truth of Rast’s factual statements. Longoni’s opinion that the substances contained methamphetamine and cannabis were based only on his acceptance of the truth of what Rast had reported about her lab work, i.e., that she performed certain tests and received certain results. Because Rast was not in the courtroom, the defendant was unable to ask her questions. 144 S.Ct. at 1811.
The Smith Court further stated that if it accepted the state’s argument, then every testimonial lab report could come into evidence through a trained surrogate, however remote from the case. This would leave defendants unable to cross-examine the testing analysts about their work and whether their results should be trusted. 144 S.Ct. at 1802.
However, the Confrontation Clause still allows experts like Longoni to testify from personal knowledge about lab standards, practices, procedures, and chain of custody. Longoni could also have been asked hypothetical questions like “[i]f or assuming some out-of-court statements were true, what would follow from it?” The state would have to separately prove the thing assumed. 144 S.Ct. at 1800.
The Smith Court remanded the case back to the state court of appeals to determine if Rast’s statements were testimonial. This inquiry focuses on the primary purpose of the statement and how it relates to future criminal proceedings. Courts must identify the out-of-court statement and the principal reason it was made given all relevant circumstances. 144 S.Ct. at 1801.
In conclusion, the Smith Court made it clear that “[a] State may not introduce the testimonial out-of-court statements of a forensic analyst at trial, unless she is unavailable and the defendant has had a prior chance to cross-examine her.” 144 S.Ct. at 1802.
For more information about criminal law, see CRIMINAL RECORDS: EXPUNGEMENT AND OTHER RELIEF (IICLE®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.