Smith v. Arizona: There’s No Substitute For The Truth
First, a big thanks to David Oscar Markus and Jon R. Byrne for the opportunity to submit this guest post. This post will cover the Supreme Court’s recent decision in Smith v. Arizona, which addressed whether the testimony of a “substitute” expert witness implicates the Sixth Amendment’s Confrontation Clause when he relays an absent analyst’s statements to support his own opinion based on tests the non-testifying analyst conducted.[1] As further discussed, the issue required the Court to confront when an out-of-court statement is truly offered for its truth. And while the Court unanimously decided that aspect, it punted on the remainder thus leaving the once common practice in the Eleventh Circuit in serious doubt yet not without life.
For context, the concept of the substitute expert is generally explained as a practical means for prosecutors to present expert testimony. Consider this example: A forensic analyst who tested substances recovered from a defendant no longer works at the crime lab come trial and is believed to have moved to another state, so the prosecution opts to summon a qualified lab employee who reviewed and interpreted the results of the test(s) to form his own “independent” opinion. Although it’s not an ideal scenario, certain federal circuits—including the Eleventh Circuit—have authorized it. The rationale being that cross-examining only the substitute expert is sufficient because when the expert gives his independent opinion, the only witness against the defendant is that person. But the Court’s unanimous decision in Smith turns that logic on its head.
All this dates back to Crawford v. Washington, when the Court held the Confrontation Clause bars the admission of “testimonial hearsay” statements, unless the witness is unavailable and the defendant previously had the opportunity to cross examine the witness. It follows, then, that if a substitute expert does not offer the testimony of another analyst for the truth of the matter asserted, then there is no right to confrontation because the statements are not hearsay. As previewed, the central question in Smith tested when something is indeed offered for the truth of the matter asserted in the context of implicating the Confrontation Clause.
The Court set the stage for Smith when it decided a very similar issue involving whether the Confrontation Clause applied to forensic evidence in Melendez-Diaz v. Massachusetts. In Melendez-Diaz, the Court held a prosecutor cannot introduce an absent laboratory analyst’s report into evidence to prove the results of the forensic testing. But what if the substitute expert solely relies on the absent analyst’s report as the basis for his independent conclusion upon reviewing the report? It’s not hearsay if it isn’t offered for the truth and, after all, Federal Rule of Evidence 703 permits an expert to convey an absent party’s statement to the jury so long as the sole purpose of doing so is to establish the basis of his subsequently formed opinion. Melendez-Diaz left the door open for this theory when the report is used simply as the basis for the testifying expert’s opinion.
The opportunity to answer this question first presented itself in Williams v. Illinois, but the case resulted in a fractured plurality. Five Justices rejected the “basis of opinion” logic, but there was no majority decision. And with five Justices finding the statements not testimonial, it was removed from the restraints of the Confrontation Clause. With this split decision, the Williams opinion fueled widespread confusion in lower courts over the constitutionality of substitute expert testimony. For example, the Eleventh Circuit followed the plurality’s rationale while the Second Circuit refused to extend the opinion beyond the facts presented in Williams.
This brings us to Smith, which clarifies this impending question. Last month, the Court held that when an expert witness conveys a non-testifying analyst’s statements in support of the expert’s opinion, the statements are necessarily offered for the truth of the matter asserted and thus are hearsay, implicating the Confrontation Clause when such statements are also testimonial.
Leaving no room for dispute, the Court explained when something is offered for the truth:
[T]ruth is
everything when it comes to the kind of basis testimony presented here. 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 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.
Although one issue has been resolved— when an out-of-court statement conveyed by a substitute expert in support of his opinion is offered for its truth—another issue remains—whether another analyst’s notes or reports relied on to form the opinion are testimonial. The Supreme Court remanded that issue for the lower court to determine because the Arizona courts seemed to have taken for granted that the notes and reports from the state’s forensic lab were testimonial under the circumstances.
The Court did provide some guidance on how it should be approached. The Court suggested for the lower court to determine what exact statements were being relied on by the testifying substitute expert witness, the analysts notes or report, before determining what the primary purpose of those statements were. Moreover, the Court was sure to note that not all lab records will be testimonial: “[L]ab records may come into being primarily to comply with laboratory accreditation requirements or to facilitate internal review and quality control. Or some analysts’ notes may be written simply as reminders to self. In those cases, the record would not count as testimonial.”
This dictum may aid both courts and attorneys as expert testimony is used, but the Court’s decision to refrain from addressing whether the statements are testimonial, along with two concurrences with varying articulations of what constitutes a testimonial statement, still leaves unanswered questions and potentially creates new ones. For example: when, if at all, can the prosecution effectively use a substitute expert now? Will prosecutors pull back or lean into the practice of substitute experts? Will the Court’s opinion create a logistical headache in arranging for all necessary experts to testify? Will state crime labs now be forced to retain and re-test substances that a former employee conducted? Broadly speaking, at least the Court clarified one important aspect of the issue—no matter how you cast it, there is no substitute for the truth.
[1] This issue, along
with the one addressed in an earlier post by my Teammate, Mark Royero, was the
subject of the 2024 Gibbons Criminal Procedure Moot Court Competition, where
Mark and I represented the University of Miami School of Law. I would also like
to thank our coaches, Adam Stolz and Luis Reyes for their guidance and support
throughout the competition.
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