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 disagreed as to (i) when an expert’s forensic testing results qualify as “testimonial” and (ii) when they are offered for their truth.
The Supreme Court’s messy, fractured decision in Williams v. Illinois, 567 U.S. 50 (2012), exacerbated this confusion. There was no majority opinion in the case. And four justices (Alito, Roberts, Kennedy, and Breyer) opined that, in a bench trial, the prosecution could offer DNA testing results generated by a non-testifying expert as the basis for a testifying expert’s own opinion, finding that the non-testifying expert’s results were not offered for their truth.
Smith v. Arizona rejects this idea. In the words of Justice Kagan’s majority opinion, “When an expert conveys an absent analyst’s statements in support of his opinion, and the statements provide that support only if true, then the statements come into evidence for their truth.” That means if the prosecutor wants to offer that absent analyst’s results at trial, the prosecutor needs to call that analyst as a witness; the results cannot be conveyed by a different expert who is purporting to rely on them for her own opinion.
This is a positive reaffirmation of defendants’ rights to confront the actual experts whose forensic testing results are used against them at trial. But the Supreme Court left open the harder question of when forensic expert testing results qualify as “testimonial” statements. On this topic, the Court only “offer[ed] a few thoughts.” The Court reiterated that, when determining whether a statement qualifies as “testimonial,” courts should focus on “the primary purpose of the statement, and in particular how it relates to a future criminal proceeding.” The Court suggested that this test would render non-testimonial the sort of “mine-run” materials that experts often rely on, “including books and journals, surveys, and economic or scientific studies.” Instead, to be testimonial, an expert’s out-of-court statement or document must have a primary purpose that involves “a focus on court.”
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