Archive | Confrontation Clause

Last week, the Supreme Court reaffirmed in Smith v. Arizona, No. 22-899 (June 21, 2024), that criminal defendants have a Sixth Amendment right to confront experts who provide forensic evidence for the prosecution. This right extends to testimonial statements by experts whose testing and opinions form the basis of a different expert’s opinion.

This issue should have been straightforward. The Supreme Court has long held that criminal defendants have a Sixth Amendment right to confront witnesses who provide forensic evidence against them. Thus, if a prosecutor wants to introduce the results of forensic testing, the defendant must have an opportunity to cross-examine the analyst responsible for the test. See Bullcoming v. New Mexico, 564 U.S. 647, 658 (2011); Melendez-Diaz v. Massachusetts, 557 U.S. 305, 314-15 (2009).

But a defendant’s confrontation right extends only to “testimonial hearsay”—that is, out-of-court testimonial statements offered for their truth. And courts have …

The Supreme Court has granted certiorari in Smith v. Arizona, No. 22-899. The question presented is:

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.

Defense counsel should be sure to make Confrontation Clause objections whenever the government seeks to use or admit forensic evidence at trial without calling the individual (or all of the individuals) who actually performed all of the underlying forensic testing.

Smith will hopefully bring some clarity to this area of law. The Supreme Court has long held that criminal defendants have a …

The Supreme Court granted certiorari today in Hemphill v. New York (No. 20-637), to resolve the following question: “Whether, or under what circumstances, a criminal defendant who opens the door to responsive evidence also forfeits his right to exclude evidence otherwise barred by the Confrontation Clause.”

The facts are straightforward. In 2006, someone fired a 9- millimeter handgun during a melee in the Bronx, killing a child in a passing car. When Hemphill was tried for the crime, he contended that the shooter was another man at the scene, Nicholas Morris. As part of that defense, Hemphill elicited testimony that the police had recovered a 9-millimeter cartridge on Morris’s nightstand hours after the shooting. The State then successfully moved to introduce a guilty plea from Morris in which he said he possessed a different gun—a .357 revolver—at the scene of the shooting. The New York courts rejected Hemphill’s claim that …