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ALERT – ALERT – SUPREME COURT DECISION SMITH v. ARIZONA – JUNE 21, 2024

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SMITH v. ARIZONA, 2024 U.S. LEXIS 2712 (S. Ct,)

No. 22-899

Argued January 10, 2024—Decided June 21, 2024

Justice Kagan


The Sixth Amendment’s Confrontation Clause guarantees a criminal defendant the right to confront the witnesses against him. In operation, the Clause protects a defendant’s right of cross-examination by limiting the prosecution’s ability to introduce statements made by people not in the courtroom. The Clause thus bars the admission at trial of an absent witness’s statements unless the witness is unavailable and the defendant had a prior chance to subject her to cross-examination. Crawford v. Washington, 541 U.S. 36, 53–54. This prohibition “applies only to testimonial hearsay,” Davis v. Washington, 547 U.S. 813, 823, and in that two-word phrase are two limits. First, in speaking about “witnesses”—or “those who bear testimony”—the Clause confines itself to “testimonial statements,” a category this Court has variously described. Id. at 823, 826. Second, the Clause bars only the introduction of hearsay—meaning, out-of-court statements offered “to prove the truth of the matter asserted.” Anderson v. United States, 417 U.S. 211, 219.  Relevant here, the Confrontation Clause applies in full to forensic evidence. For example, in Melendez-Diaz v. Massachusetts, 557 U.S. 305, prosecutors introduced “certificates of analysis” stating that lab tests had identified a substance seized from the defendant as cocaine. The Court held that the defendant had a right to cross-examine the lab analysts who prepared the certificates. In Bullcoming v. New Mexico, 564 U.S. 647, the Court relied on Melendez-Diaz to hold that a State could not introduce one lab analyst’s written findings through the testimony of a substitute analyst. Finally, in Williams v. Illinois, 567 U.S. 50, the Court considered a case where one lab analyst related an absent analyst’s findings on the way to stating her own conclusion. The state court held that the testimony did not implicate the Confrontation Clause because the absent analyst’s statements were introduced not for their truth, but to explain the basis for the testifying expert’s opinion.  Five Members of the Court rejected that reasoning. But because one of those five affirmed the state court on alternative grounds, Williams lost.

This case presents the same question on which the Court fractured in Williams. Arizona law enforcement officers found petitioner Jason Smith with a large quantity of what appeared to be drugs and drug-related items. Smith was charged with various drug offenses, and the State sent the seized items to a crime lab for scientific analysis. Analyst Elizabeth Rast ran forensic tests on the items and concluded that they contained usable quantities of methamphetamine, marijuana, and cannabis. Rast prepared a set of typed notes and a signed report about the testing.  The State originally planned for Rast to testify about those matters at Smith’s trial, but Rast stopped working at the lab prior to trial. So the State substituted another analyst, Greggory Longoni, to “provide an independent opinion on the drug testing performed by Elizabeth Rast.” At trial, Longoni conveyed to the jury what Rast’s records revealed about her testing, before offering his “independent opinion” of each item’s identity. Smith was convicted. On appeal, he argued that the State’s use of a substitute expert to convey the substance of Rast’s materials violated his Confrontation Clause rights. The Arizona Court of Appeals rejected Smith’s challenge, holding that Longoni could constitutionally present his own expert opinions based on his review of Rast’s work because her statements were then used only to show the basis of his opinion and not to prove their truth.

HELD: When an expert conveys an absent analyst’s statements in support of the expert’s opinion, and the statements provide that support only if true, then the statements come into evidence for their truth. Pp. 11– 22. (a) The parties agree that Smith’s confrontation claim can succeed only if Rast’s statements came into evidence for their truth. Smith argues that the condition is satisfied here because her statements were conveyed, via Longoni’s testimony, to establish that what she said happened in the lab did in fact happen. The State contends that Rast’s statements came into evidence not for their truth, but to “show the basis” of Longoni’s independent opinion. It emphasizes that Arizona’s Rules of Evidence authorize the admission of such statements for that limited purpose. Evidentiary rules, however, do not control the inquiry into whether a statement is admitted for its truth. Instead, courts must conduct an independent analysis of that question.Truth is everything when it comes to the kind of basis testimony presented here. If an expert 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. The truth of the basis testimony is what makes it useful to the State; that is what supplies the predicate for—and thus gives value to—the state expert’s opinion. And from the factfinder’s perspective, the jury cannot decide whether the expert’s opinion is credible without evaluating the truth of the factual assertions on which it is based. But that is what raises the Confrontation Clause problem. For the defendant has no opportunity to challenge the veracity of the out-of-court assertions that are doing much of the work. Here, Rast’s statements came in for their truth, and no less because they were admitted to show the basis of Longoni’s expert opinions. All of Longoni’s opinions were predicated on the truth of Rast’s factual statements. And the jury could credit those opinions because it too accepted the truth of what Rast reported about her lab work. So the State’s basis evidence—more precisely, the truth of the statements on which its expert relied—propped up the whole case; yet the maker of the statements was not in the courtroom, and Smith could not ask her any questions.  Pp. 11–19. (b) What remains is whether the out-of-court statements Longoni conveyed were testimonial.  The testimonial issue focuses on the “primary purpose” of the statement, and in particular on how it relates to a future criminal proceeding. But that issue is not now fit for resolution by this Court. The question presented in Smith’s petition for certiorari took as a given that Rast’s out-of-court statements were testimonial, and the Arizona Court of Appeals did not decide the issue. Indeed, there may not remain a matter to decide, as Smith maintains that the State has forfeited any argument that Rast’s statements were not testimonial.  The testimonial issue, including the threshold forfeiture question, is thus best considered by the state court in the first instance.  Pp. 19–22.


Vacated and remanded.


KAGAN, J., delivered the opinion of the Court, in which SOTOMAYOR, KAVANAUGH, BARRETT, and JACKSON, JJ., joined, and in which THOMAS and GORSUCH, JJ., joined as to Parts I, II, and IV. THOMAS, J., and GORSUCH, J., filed opinions concurring in part.  ALITO, J., filed an opinion concurring in the judgment, in which ROBERTS, C. J., dissented.


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