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September 29, 2023

Supreme Court grants cert on a dozen new cases, a couple of which involve criminal law issues

As reported here at SCOTUSblog, the Supreme Court today added 12 new cases to its docket.  A couple of these cases involve criminal law issues, and here is part of the SCOTUSblog accounting:

The Supreme Court on Friday issued orders from its so-called “long conference” – the justices’ private conference in the last week of September, at which they met for the first time since the end of June to add new cases to their docket. This year the long conference yielded 12 new grants, on topics ranging from controversial laws seeking to regulate social media companies to property rights and bankruptcy fees.

The cases granted on Friday will likely be argued in January or February 2024, with a decision to follow by summer [and they include]...

  • Smith v. Arizona – Whether the Sixth Amendment, which guarantees a defendant the right to confront the witnesses against him, allows prosecutors to use expert testimony about evidence – here, a report prepared by a different crime lab analyst who no longer worked at the lab and did not testify at trial – that was not itself admitted into evidence, on the grounds that the testifying expert was simply offering his own opinion and that the defendant could have subpoenaed the original analyst.
  • McIntosh v. United States – Whether a district court can enter a criminal forfeiture order when the time limit specified in the Federal Rules of Criminal Procedure has already passed – here, when the government did not submit a preliminary forfeiture order until more than two-and-a-half years after the defendant was sentenced.

Neither of these cases seem especially monumental, nor of particular interest to sentencing fans. Other than Pulsifer, Rahimi and due process/forfeiture cases, there is not that much getting me jazzed about the coming Supreme Court Term.  Yawn.

September 29, 2023 at 09:49 PM | Permalink


Smith is the first look into the expert testimony question since the split decision in Williams. It seems unusual (and may reflect how state court doctrine on this case has become routine since Williams) in that it is reviewing an unpublished opinion of an intermediate appellate court.

From my brief review of the pleadings and lower court opinion, it seems like this was truly a case of the expert reviewing the records of the testing and giving an answer on what the data means rather than a means of backdooring the absent expert's conclusions. Of course, much of the subject of forensic analysis is now highly mechanized and computerized with the machine generating the data and the analyst merely explaining what the data means. Ultimately, the issue is whether this is simply the new expert "reasonably relying" on data or if you need the person who ran the test. Given that often the test can't be duplicated as all or a significant part of the "unknown" sample -- the drug, the dna swab, the blood draw from a suspect -- is consumed in the initial. Given that it is not unusual for lab personnel to retire, die, move to another department in another part of the country, the ability to have the expert rely on the previously-generated data is the only way to get the test results into evidence. The number of cases in which I have seen any serious dispute over the test results is very small. So the ultimate question is whether the U.S. Supreme Court will take a strict view of the requirements of the Confrontation Clause or a more pragmatic view.

Posted by: tmm | Sep 30, 2023 8:41:27 AM

The issue in the McIntosh case, the timeliness of the District Court's entry of a criminal forfeiture order, bears a striking resemblance to Dolan v. United States, 560 U.S. 605 (2010), which basically concerned the same issue, but for criminal restitution, 18 U.S.C. section 3664(k). In Dolan, the District Judge entered his Order of Judgment and Commitment late, past the 90 days after oral sentencing time limit, but the Supreme Court held that this was not a jurisdictional mistake because the Court had previously noted that there would be a restitution order entered as soon as the amount of damages was ascertained. Months later, the Pre-Sentence Report was amended when the restitution information became available, and then 3+ more months later, the Court held a hearing on the amount of restitution. Defendant had objected that because the Court had missed the 90-day statutory deadline (after oral sentencing), the Court no longer had jurisdiction to enter a restitution order. The Judge over-ruled the objection and entered the restitution order (in a case of assault with great bodily harm - the restitution was medical bills for the victim). The District Judge was affirmed by both the 10th Circuit and the U.S. Supreme Court. As in Dolan, I suspect that the Supreme Court will find that the delay past the statutorily described time limit is not a jurisdictional limit, so the Court can still enter the criminal forfeiture judgment late.

Posted by: Jim Gormley | Sep 30, 2023 3:15:12 PM

Although it is not yet on the radar of SCOTUS.Blog or other criminal lawyers, an important Cert. Petition was filed on September 5, 2023 from the Sixth Circuit: United State v. Anderson, 67 F.4th 755, 762-63 (6th Cir. 2023) (per curiam), Cert. Petition filed, Anderson v. United States, Petition No. 23-238 (U.S. filed September 5, 2023). Anderson was the first published opinion by the Sixth Circuit interpreting and applying Ruan and Kahn v. United States, 497 U.S. ___, 142 S. Ct. 2370, 213 L.E.d2d 706 (2022). Among other holdings, Anderson says that after Ruan, physician defendants charged with violating 21 U.S. C. section 841(a) are no longer entitled to a "good faith" jury instruction. The Anderson case was tried before Ruan was decided, and the majority of the panel found that taken as a whole, the jury instructions were fair and accurate statements of the law. The opinion contains a powerful (and I think correct) dissent written by Judge Helene White of Detroit. If Anderson was wrongly decided, it is fouling up all of the Ruan-related cases coming behind it, because it is presently the binding Circuit precedent, determining the outcomes of all the later cases. I have e-mailed a copy of the Cert. Petition to Doug, and would be happy to forward it to anyone else who wants to read it. Contact me at [email protected]

Posted by: Jim Gormley | Sep 30, 2023 4:08:14 PM

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