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June 21, 2024
Supreme Court, by unanimous vote, expands (and tweaks?) application of the Confrontation Clause
The Supreme Court this morning in Smith v. Arizona, No. 22-899 (S. Ct. June 21, 2024) (available here), voted unanimously to vacate a state conviction because the defendant did not have his Sixth Amendment rights of confrontation properly respected. Justice Kagan authored the opinion for the COurt, and it starts this way:
The Sixth Amendment’s Confrontation Clause guarantees a criminal defendant the right to confront the witnesses against him. The Clause bars the admission at trial of “testimonial statements” of an absent witness unless she is “unavailable to testify, and the defendant ha[s] had a prior opportunity” to cross-examine her. Crawford v. Washington, 541 U.S. 36, 53–54 (2004). And that prohibition applies in full to forensic evidence. So a prosecutor cannot introduce an absent laboratory analyst’s testimonial out-ofcourt statements to prove the results of forensic testing. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 307, 329 (2009).
The question presented here concerns the application of those principles to a case in which an expert witness restates an absent lab analyst’s factual assertions to support his own opinion testimony. This Court has held that the Confrontation Clause’s requirements apply only when the prosecution uses out-of-court statements for “the truth of the matter asserted.” Crawford, 541 U.S., at 60, n. 9. Some state courts, including the court below, have held that this condition is not met when an expert recites another analyst’s statements as the basis for his opinion. Today, we reject that view. 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. As this dispute illustrates, that will generally be the case when an expert relays an absent lab analyst’s statements as part of offering his opinion. And if those statements are testimonial too — an issue we briefly address but do not resolve as to this case— the Confrontation Clause will bar their admission.
Because the Confrontation Clause does not apply at sentencing and I have never been able to figure it out, I am not sure how big a ruling this is. I sense from the two concurrences that this area of law is going to continue to be messy, but perhaps others can speak to the nature of the mess to expect after Mr. Smith can to SCOTUS jurisprudence.
June 21, 2024 at 10:43 AM | Permalink
Comments
Three points:
1) The court overrules the Williams' plurality "not offered for the truth" rule, chiefly because two of its four proponents (Kennedy and Breyer) are no longer on the court. Alito and Roberts stick to their prior opinion in Williams. Jackson today announces she agrees with Breyer's Bruen dissent, agrees with his opposition to Apprendi (she clerked during one of the terms a major Apprendi-line case was decided IIRC) and probably would not have voted like Breyer to extend Apprendi in Alleyne and Carpenter. But she does depart from Breyer's vote in Williams, and arguably is less hostile than Breyer to the confrontation right in forensic cases.
2) Justice Kavanaugh during oral argument heavily flirted with adopting Justice Thomas's formalized solemnity test for assessing whether the statement under consideration is "testimonial". In the end, he goes along with Part III of the Court's opinion accepting the "primary purpose" test. I suspect that is because of language added in that was necessary to get his (and likely Barrett's) vote, which brings me to—
3) The win for the defense bar in this case will be a Pyrrhic victory in the end. Regardless of what happens to Smith himself, the United States and the majority opinion already wrote in the seeds of the destruction of Bullcoming. All the lab has to do is claim that the notes it wrote were primarily for accreditation or quality control, not for testimony, and presto, they can routinely be admitted as evidence and essentially testimony in all but name. Only Gorsuch won't go for that charade. The court essentially is trading one charade for another.
Posted by: Jacob Berlove | Jun 21, 2024 11:38:11 AM
How do people think this decision will interact with Diaz v. United States? Does a defendant have a right to confront an expert witness about the empirical basis of the opinions they express about "most" defendants states of mind?
MAGA
Posted by: MAGA 2024 | Jun 21, 2024 2:45:41 PM
Jacob
You act as if np 3 above is a travesty. The real travesty is someone who clearly dealt drugs or was clearly drunk just because the original chemist has moved on. Sure, many defendants get off on technicalities, but don't complain when SCOTUS refuses to make it easier for them to do so.
Posted by: Da Man | Jun 21, 2024 2:47:15 PM
Da Man,
There have been dirty analysts in scandals across the county. The Supreme Court must allow every defendant the right to cross examine whoever did the work. Presumption of innocence and all.
Posted by: Jacob Berlove | Jun 21, 2024 5:22:22 PM
*across the country
Posted by: Jacob Berlove | Jun 21, 2024 5:23:14 PM
Nothing prevents the defense from subpoenaing an expert that they think was dirty. The right to compel testimony is a separate right from the right to confront witnesses. Question is can state rely on business records in lieu of calling the original analyst and push the burden of calling the original analyst onto the defense. And, if original analyst is deceased (which sometimes happens), defense can also offer whatever evidence that they can find to show that the analyst has a reputation for misconduct.
For things like Diaz, experts are relying on experience and training, so there is no specific underlying data that would trigger the situation in Smith.
Posted by: tmm | Jun 22, 2024 8:46:00 AM
TMM :
Thank you! MAGA
Posted by: MAGA 2024 | Jun 22, 2024 1:56:26 PM
