Courts across the country are patiently waiting for the Supreme Court to render a decision regarding an issue involving the Confrontation Clause of the Sixth Amendment. The Sixth Amendment guarantees criminal defendants “shall enjoy the right to . . . be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor.”[i] However, the Supreme Court’s past decisions regarding this foundational procedural right have left lower courts guessing as to the proper application.[ii] The issue in Smith v. Arizona, the case currently in front of the Court, is whether a forensic expert can testify to their own independent opinion based in part on the testimonial statements of another expert.[iii]
Jason Smith was charged with possession of dangerous drugs, and Elizabeth Rast, a forensic expert, performed all the testing to support the charges brought by the prosecution.[iv] Instead of having Rast testify at trial, the prosecution brought in forensic expert Greggory Longoni to provide his independent testimony after reviewing the tests Rast performed.[v] The case raises several critical questions: (1) are forensic experts’ notes that are created while performing tests considered testimonial; (2) if they are testimonial, can another expert testify to their own independent opinion based on the notes? The Confrontation Clause demands that witnesses with testimony against the defendant be tested in the crucible of cross-examination, but the Supreme Court has also held that the Confrontation Clause is not implicated when testimonial statements are not admitted for the truth of the matter asserted.[vi]
This “not for the truth” application is the crux of the confusion because, pursuant to Arizona and the Federal Rules of Evidence, the underlying statements relied on by a testifying expert are never to be admitted for the truth of the matter.[vii] Previously, the “not for the truth” rationale was only applied when there was a “legitimate non-hearsay” purpose, but several justices believe the use of Rule of Evidence 703 is proper.[viii] This non-hearsay purpose has been applied by the Supreme Court when a prosecutor admitted the confession of a defendant to compare the differences with an accomplice’s confession.[ix] This application in Tennessee v. Street is far from the manner in which the testimonial statements were used in Smith.
The Supreme Court presided over the use of an expert’s independent opinion in Williams v. Illinois, a similar case, which rendered a split decision with four justices affirming the use of Rule 703 and the “not for the truth” rationale, while five justices strongly disagreed.[x] Although the statements were determined to be non-testimonial, the majority took the opportunity to hold that there would be no Confrontation Clause violation even if they were testimonial because the statements would not be admitted for the truth of the matter asserted.[xi] Since the Williams decision “resulted in a fractured decision . . . the lower federal courts and many state appellate courts . . . have struggled to apply Williams.”[xii] States are divided on the application of Rule 703, with Arizona permitting the use so long as the testifying expert does not act as a “mere conduit” for the non-testifying expert’s conclusions.[xiii] While Maryland refused to adhere to the Williams decision by holding that the presentation of testimonial statements without the author’s testimony is a violation of the defendant’s Confrontation Clause rights.[xiv]
If the Supreme Court deems Elizabeth Rasts notes as testimonial and still rules in favor of Arizona, an unprecedented exception will be created. Prosecutors across the country will no longer be forced to rely on the testimony of the analyzing forensic experts. Instead, a non-analyzing expert will be permitted to testify, which negates a defendant’s ability to substantively cross-examine the analyzing forensic expert regarding any inconsistencies or faults during testing. Such a decision would diminish the power the Confrontation Clause holds.
However, on the other hand, expert witnesses have always been permitted to rely on out-of-court statements to form an independent opinion. Plus, the defendant would be free to question the testifying expert about their lack of personal knowledge regarding the substances at hand, thus weakening the weight of the testimony. Barring this type of testimony may also create a backlog in forensic laboratories because every forensic expert would constantly be required to testify at trial. The Supreme Court needs to affirmatively resolve the issue to clarify the correct application for lower courts. The decision requires a careful analysis of the pros and cons of each party’s argument and will forever reshape the criminal procedure landscape and defendants’ Sixth Amendment rights.
[i] U.S. Const. amend. VI.
[ii] See Crawford v. Washington, 541 U.S. 36 (2004) (holding that admission of testimonial statements against a defendant should not be left to the rules of evidence and require the testimony of the author of the out-of-court statements); see also Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) (holding that testimonial statements cannot be admitted as substantive evidence without testimony from the author); see also Bullcoming v. New Mexico, 564 U.S. 647 (2011) (holding that a substitute expert cannot testify to the testimonial statements of the analyzing expert).
[iii] See State v. Smith, No. 1 CA-CR 21-0451, 2022 WL 2734269 at *1 (Ariz. Ct. App. July 14, 2022) (explaining that Jason Smith asserts the admission of drug-analysis testimony violated his confrontation rights because the testifying expert relied on data generated by a non-testifying expert).
[iv] Id.
[v] Id. at 2.
[vi] See Crawford, 541 U.S. at 59, n.9.
[vii] See Fed. R. Evid. 703.
[viii] See Tennessee v. Street, 471 U.S. 409, 414 (1985) (specifying that the Confrontation Clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted); see also Williams v. Illinois, 567 U.S. 50 (2012).
[ix] See Street, 471 U.S. at 414.
[x] See Williams, 567 U.S. at 57–58 (“We now conclude that this form of expert testimony does not violate the Confrontation Clause because that provision has no application to out-of-court statements that are not offered to prove the truth of the matter asserted.”).
[xi] See Williams, 567 U.S. at 57–58.
[xii] Leidig v. State, 475 Md. 181, 185 (Md. Ct. App. Aug. 5, 2021).
[xiii] See State ex. rel. Montgomery v. Karp, 236 Ariz. 120, 124 (Ariz. Ct. App. Oct. 9, 2014) (stating that the testifying expert’s testimony is permitted so long as they are not testifying to the conclusions of the non-testifying expert).
[xiv] See Leidig, 475 Md. at 247.
