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 Sixth Amendment right to confront witnesses who provide forensic evidence. 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 (2011); Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). But many prosecutors’ offices (and judges) have persisted in various efforts to resist and circumscribe this rule.
The Supreme Court last waded into this issue in Williams v. Illinois, 567 U.S. 50 (2012), in the context of DNA evidence. Williams includes four opinions that fail to “yield a single, useful holding.” United States v. James, 712 F.3d 79, 95 (2d Cir. 2013).
In Williams, the petitioner/defendant was charged with rape in a bench trial. The prosecution called an expert who relied on a DNA profile produced by an outside laboratory to opine that the defendant’s DNA matched that DNA profile (which came from vaginal swabs of the victim). The prosecution argued that it did not need to call any witness from the laboratory that generated the swab DNA profile because this DNA profile was not being offered for its truth; it was just the basis for the testifying expert’s opinion that there was a DNA match.
Implausibly, four justices (Alito, Roberts, Kennedy, and Breyer) accepted this argument and agreed that the prosecution did not need to call the expert who generated the swab DNA profile, since that profile was not offered for its truth. These justices further opined that the swab DNA evidence was not “testimonial” since it was not generated “for the purpose of obtaining evidence to be used against petitioner, who was not even under suspicion at the time.” These justices cautioned that their decision was limited to the context of a bench trial, where the judge would readily understand the limited purpose for which the evidence was admitted.
In addition to joining this plurality, Justice Breyer wrote a concurrence adhering to the dissents in Melendez-Diaz and Bullcoming, and bemoaning the “economic and logistical burdens” that would be caused by requiring forensic analysts to testify.
Justice Thomas, meanwhile, authored an opinion agreeing that there was no Confrontation Clause violation (because the challenged forensic evidence “lacked the requisite ‘formality and solemnity’ to be considered ‘testimonial’”), but rejecting the plurality’s assertion that this DNA evidence was not offered for its truth. Justice Thomas also disputed the plurality’s suggestion that statements are only testimonial if they are made for the purpose of proving the guilt of a “particular criminal defendant,” pointing out that the Court had previously rejected this idea in Melendez-Diaz.
Finally, four justices (Kagan, Scalia, Ginsburg, and Sotomayor) dissented and opined that offering the swab DNA profile evidence without calling the analyst who generated it violated the Confrontation Clause: “Under our Confrontation Clause precedents, this is an open-and-shut case.”
Since it was decided, Williams has “sown confusion in courts across the country.” Stuart v. Alabama, 139 S. Ct. 36 (Mem.) (2018) (Gorsuch, J., dissenting from the denial of certiorari). The petition in Smith lays out the conflict, with many courts rejecting the Williams plurality’s not-for-the-truth rationale, but others accepting it. In Stuart, Justice Gorsuch, joined by Justice Sotomayor, urged the Court to take up this issue. Now that the Court has, it will be interesting to see how this newly constituted Court resolves this case.