By Clinton Morgan
Assistant District Attorney in Harris County
Confrontation Clause cases are both exciting and boring. They’re exciting because we’re getting to watch a sped-up version of common-law development. After the Supreme Court of the United States reset this area of caselaw in 2004’s Crawford v. Washington,[1] the vast advances of the forensic sciences have created a never-ending supply of novel scenarios. In the states and federal circuits, we’ve seen a century’s worth of doctrinal development in just the last 20 years.
Confrontation Clause cases from the Supreme Court are boring, though, because that court takes its job seriously and gives us only the smallest answers possible for each case it decides. If a criminal lawyer has 10 questions in mind about the Confrontation Clause, the typical Supreme Court case will answer one and create two more.
Last term’s Supreme Court case on the subject, Smith v. Arizona,[2] fits the pattern of gradual and predictable doctrinal development. It was so predictable, in fact, that the Court of Criminal Appeals saw it coming a decade ago.
The “substitute expert”
The legal issue in Smith is interesting, but the facts are not: Officers found a bunch of drugs in Jason Smith’s shed.[3] Forensic testing conducted by an analyst named Elizabeth Rast revealed the drugs were drugs. Smith went to trial on a variety of drug charges.
By the time of trial, Rast no longer worked for the lab, so the prosecution changed its witness list to include a “substitute expert” named Greggory Longoni. Longoni testified that he was aware of the lab’s standard procedures, but he knew nothing about Rast’s testing beyond what Rast put in her records. Longoni testified about what procedure Rast wrote that she followed. Longoni testified that Rast’s testing adhered to “general principles of chemistry.” Then Longoni testified that based on what Rast wrote, it was his independent expert opinion that the substances found in Smith’s shed were the illegal substances Smith was charged with possessing.
On appeal, Smith argued this procedure violated his rights under the Sixth Amendment’s Confrontation Clause. That amendment gives criminal defendants the right “to be confronted with the witnesses against him.”[4] While Smith could confront Longoni, he contested that Longoni’s testimony about Rast’s notes made Rast a witness against him; thus, that testimony was inadmissible because Smith could not confront Rast.
Melendez-Diaz, Bullcoming, and Williams
Since Crawford, the U.S. Supreme Court has explained that the Confrontation Clause generally bars the admission of “testimonial hearsay.” That phrase has two parts: “Hearsay” is an out-of-court statement offered for the truth of the matter asserted. And hearsay is “testimonial” if it was made in “circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”[5]
Before Smith, the Supreme Court had three times addressed whether evidence made by a non-testifying forensic analyst was testimonial hearsay. In Melendez-Diaz v. Massachusetts, the Court held that it violated the Confrontation Clause to admit an affidavit created by a non-testifying analyst stating that a substance was drugs. In Bullcoming v. New Mexico,[6] the Court held it violated the Confrontation Clause to use an analyst who had no involvement with the case to sponsor a lab report written by a non-testifying analyst.
The third pre-Smith case was Williams v. Illinois.[7] That case raised the question of whether an expert witness could form an opinion based on a lab report created by a non-testifying witness and then testify to some facts contained in that lab report. That sounds pretty on-point for Smith, except the Court did not have a majority opinion. A four-justice plurality concluded the testimony was not hearsay because it was not “offered for the truth of the matter asserted”; rather, it was offered only to support the expert’s opinion. A four-justice dissent argued it was inadmissible testimonial hearsay, and a concurring justice concluded it was admissible because it was not “testimonial.”
Looking at these three cases, the Arizona Court of Appeals rejected Smith’s complaint, holding that both Melendez-Diaz and Bullcoming were distinguishable because they involved the admission of the actual document created by the non-testifying analyst. In contrast, Rast’s documents were not admitted at Smith’s trial. Longoni testified as an expert witness, and the Arizona Rules of Evidence allow an expert to base an opinion on inadmissible evidence and then testify to the basis for his opinion.[8] The Arizona court noted its opinion was consistent with the plurality opinion in Williams, and adverse language in the Williams dissent wasn’t binding.
Flipping the result of Williams
The Supreme Court granted review of Smith and reversed. Justice Kagan, who had written the Williams dissent, wrote the opinion of the Court, joined by Justices Sotomayor, Kavanagh, Barrett, and Jackson; in relevant part it was also joined by Justices Gorsuch and Thomas, though they concurred and rejected one part of the opinion that was unnecessary for the resolution. It’s worth noting that none of the five justices who had been on the Court at the time of Williams changed his or her mind in Smith. Instead, the different result resulted from different personnel.
Each Confrontation Clause case from the Supreme Court has been narrowly focused, so it’s important to identify the exact issue decided. In the second paragraph of the opinion, Justice Kagan described the issue in Smith as “the application of [Confrontation Clause] principles to a case in which an expert witness restates an absent lab analyst’s factual assertion to support his own opinion testimony.”
The narrow question at the core of the opinion is whether in that scenario the non-testifying analyst’s factual assertions are being offered “for the truth of the matter asserted.” Justice Kagan faulted the Arizona court for relying on its rules of evidence to characterize the purpose of the evidence. While Arizona’s rules stated the non-testifying analyst’s statements were admissible to “help the jury evaluate the opinion,” state rules do not control on a constitutional question. Rather than allow the state rules to determine the purpose of evidence, a court addressing a constitutional challenge should “conduct an independent analysis of whether an out-of-court statement as admitted for its truth.”
That independent analysis was fairly simple and straightforward: “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.” Justice Kagan illustrated this principle by quoting a few questions and answers from Longoni’s testimony. He testified that according to Rast’s writings, Rast had performed appropriate scientific analysis of the drugs, and based on her analysis, Longoni believed the drugs were drugs. Rast’s out-of-court statements support Longoni’s opinion only if they are true. Thus the prosecution’s case depended on the truth of out-of-court statements. That, according to the Court, is hearsay.
Justice Kagan explained that the lower court’s approach was an “end run” around the Confrontation Clause. Under the lower court’s ruling, any expert could serve as the sponsor of a non-testifying analyst’s work, so long as he or she phrased it as an “independent opinion.” That procedure denies a defendant’s ability to ask questions about whether the actual tests were performed correctly.
Part III of Justice Kagan’s opinion offers some advisory thoughts on other issues, particularly as to whether Rast’s writings were “testimonial” for purposes of the Confrontation Clause. She noted that the record did not show what, exactly, it was that Longoni testified from. Was it informal notes Rast kept for herself, or was it a formal report? Because whether a statement is “testimonial” relates to the purpose for which the statement was made, that would be an important question for the lower courts on remand.
Concurrences
Justice Thomas wrote a concurring opinion. He joined the opinion of the Court as it related to whether the statement was hearsay, but he did not join the dicta discussion in Part III. He continued to adhere to his belief—stated in many cases over the years—that anything less formal than an affidavit is not testimonial.
Justice Gorsuch also concurred and joined the Court’s opinion except Part III. He expressed skepticism of the “primary purpose” test for determining whether a statement is testimonial, and he noted the Court’s opinion has conflicting statements about whether this was a subjective test (i.e., what did the declarant intend when he said it?) or an objective test (i.e., would a reasonable person believe the statement would be used in court?).
Finally, Justice Alito wrote a concurrence that is, on the relevant point, a dissent. He was joined by Chief Justice Roberts. Aside from its legal arguments, this opinion has an informative discussion on the history of expert testimony. Justice Alito argued, as he did as author of the Williams plurality, that if the out-of-court statement was offered to support an expert’s testimony, then a limiting instruction from the judge informing the jury they could not consider it for the truth of the matter asserted would cure any Confrontation Clause problems. He points out—correctly—that limiting instructions are used all the time when evidence creates both permissible and impermissible inferences. Justice Kagan’s opinion offered no response to this fairly solid point. Justice Alito’s opinion is a concurrence because he believed that some of Longoni’s statements were hearsay, just not the ones Justice Kagan believed were.
Takeaways
The effect of this opinion should be limited in Texas. In 2013’s Burch v. State[9] and 2015’s Paredes v. State,[10] the Court of Criminal Appeals synthesized Melendez-Diaz and Bullcoming into rules consistent with Smith. Burch held the State could not use a reviewing analyst to admit a report written by a non-testifying analyst if the reviewing analyst had not participated in the analysis. Paredes held that an analyst who reviewed raw data created by others could testify to his own independent analysis of the data so long as he did not act as a “surrogate” for an out-of-court analyst’s opinion. Unlike the Arizona courts, Paredes paid heed to some of the language in Justice Kagan’s Williams dissent, so Texas law is better prepared for Smith than some other states. I don’t see anything in Smith that undermines Paredes.
Paredes emphasized that when an analyst looks at raw data created by a machine, his opinion of that data isn’t hearsay because there’s no human declarant. So long as testifying analysts are looking at original outputs, Paredes is still good law.
Smith leaves prosecutors the ability in future cases to argue whether certain out-of-court statements are “testimonial.” That could prove fruitful for certain notes that lab techs might make that are intended for internal purposes. Such notes would still have to be admissible under state hearsay rules, but those have many more exceptions than the Confrontation Clause. Justices Thomas and Gorsuch didn’t appreciate Justice Kagan’s dicta about determining whether a statement is testimonial, but it still got five votes and should be taken seriously going forward.
[1] 541 U.S. 36 (2004).
[2] 144 S.Ct. 1785 (2024).
[3] State v. Smith, No. 1 CA-CR 21-0451, 2022 WL 2734269 (Ariz. Ct. App. July 14, 2022).
[4] U.S. Const. amend. VI.
[5] Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 (2009).
[6] 564 U.S. 647 (2011).
[7] 567 U.S. 50 (2012).
[8] Arizona Rule of Evidence 703 allows the expert to disclose the inadmissible bases for his opinion “only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.” In Texas, the law is similar though without the word “substantially.” Tex. R. Evid. 705(d).
[9] 401 S.W.3d 634, 638 (Tex. Crim. App. 2013).
[10] 462 S.W.3d 510, 517 (Tex. Crim. App. 2015).