U. S. Supreme Court

Smith v. Arizona--the briefs are in, including several amici who are confrontation law heavyweights. One of the amici is the U.S. SG in support of neither party suggesting a remand. To be argued 10 January 2024.

​QUESTION PRESENTED Whether the Confrontation Clause of the Sixth Amendment permits the prosecution in a criminal trial to present testimony by a substitute expert conveying the testimonial statements of a nontestifying forensic analyst, on the grounds that (a) the testifying expert offers some independent opinion and the analyst’s statements are offered not for their truth but to explain the expert’s opinion, and (b) the defendant did not independently seek to subpoena the analyst.

To prove the drug-related charges against petitioner Jason Smith, the State had the alleged drug evidence tested by a crime lab analyst. But by the time of trial, she was no longer employed by the crime lab—for reasons the State has never explained.* The State thus called a substitute expert who reviewed only her report and notes, and had not conducted or observed any of the tests at issue, nor conducted any quality assurance of those tests. And though Longoni acknowledged it would have taken him less than three hours to retest the evidence, the State did not have him do so prior to trial. Nonetheless, over Smith’s objections, the trial court permitted Longoni to use her notes and report, and recount from these documents the particular tests Rast performed on the evidence in Smith’s case and the results she reached, reasoning that Longoni could testify to his “independent opinion” based on Rast’s work without violating the Confrontation Clause.

* It would be interesting to know if she was let go because of performance issues or misconduct related to her practice. Would this not affect the reliability of any data or reports prepared by the substitute expert? So there's a discovery issue lurking potentially. Counsel are aware of the occasional missive about drug lab employee misconduct or other errors in testing. With the drug pop cases effectively a strict liability crime with a presumption of guilt, is there an argument that the MRE should be changed to require, like confessions, some modicum of independent corroboration in drug pop cases?

The SG states the QP as

Whether the Confrontation Clause of the Sixth Amendment is satisfied when an expert witness provides opinion testimony that is based in part on data from laboratory tests performed in whole or in part by someone who is not testifying.

​INTEREST OF THE UNITED STATES This case concerns whether the Sixth Amendment’s Confrontation Clause permits the prosecution in a criminal trial to present forensic expert testimony based in part on data produced through laboratory procedures that the testifying expert did not personally perform or observe. Because the Court’s resolution of the question presented may affect federal prosecutions that depend on forensic evidence, the United States has a substantial interest in this case.