Justices to hear cross-examination dispute over drug analysts testimony

Jason Smith claims that when an expert witness testified in Arizonas drug possession case against him using drug analysis performed by a former state employee, it violated his constitutional rights. The Supreme Court will hear oral argument on Wednesday in his case, Smith v. Arizona.

The Sixth Amendments confrontation clause provides that in all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him. In the early 21st century, the Supreme Court made clear that the clause means what it says that is, that prosecutors cannot use testimony against a defendant unless he has had an opportunity to cross-examine the witness who made the statement. The question before the court on Wednesday is whether that principle applies to Smiths case.

In 2019, Smith was charged with (among other things) possession of methamphetamine and marijuana for sale. At Smiths trial, a forensic scientist from the Department of Public Safety, Greggory Longoni, testified that the substances that the police had found on property owned by Smiths father were indeed methamphetamine and marijuana. Longoni relied on testing conducted by a former DPS employee, Elizabeth Rast, who did not testify.

Smith was convicted and sentenced to four years in prison. On appeal, Smith challenged (as relevant here) the admission of Longonis testimony. Because Longoni relied on analysis by Rast, who did not testify, Smith argued, Longonis testimony violated his right under the confrontation clause to be confronted with the witnesses against him.

The Arizona Court of Criminal Appeals rejected that argument. It reasoned that Longoni had simply offered his independent opinion based on analysis prepared by Rast, and Smith had been able to fully cross-examine Longoni. Moreover, the state court added, Smith could have subpoenaed Rast so that he could have cross-examined her, but he opted not to.

After the Arizona Supreme Court declined to take up his case, Smith came to the U.S. Supreme Court, which agreed last fall to weigh in.

In his brief at the Supreme Court, Smith argues that the state courts decision was wrong. Since 2004, Smith writes, the Supreme Court has made clear that the text and purpose of the confrontation clause bar prosecutors from using an absent witnesss testimony unless they can show that the witness is not available and the defendant had an earlier chance to cross-examine her.

In this case, Smith says, the state used the statements that Rast made in her notes and report, on which Longoni relied, as testimony against Smith. Longoni did not test or analyze any of the evidence himself, although, he admitted, it would have taken him less than three hours to do so. Instead, he contends, prosecutors relied on Longoni to present Rasts analysis to the jury, without ever suggesting (much less showing) that Rast was unavailable to testify and without giving Smith an opportunity to cross-examine her a violation, Smith argues, of the confrontation clause.

Nor do state evidentiary rules, which allow experts to testify regarding the basis for their opinions, excuse the state from complying with the confrontation clause, Smith asserts. In this case, the state court reasoned, Longoni had presented his independent expert opinions based on Rasts analysis, so Rasts analysis was used only to show the foundation for Longonis testimony, rather than to show that Rasts analysis was true. But that rationale is tantamount to legal fiction, Smith writes, because if Rasts analysis wasnt true, then Longonis opinions would have been neither valid nor helpful to the jury.

Smith warns that a ruling for the state would effectively allow prosecutors to evade the confrontation clause and use analysis by forensic experts without having those experts testify. By contrast, he assures the justices, a ruling for Smith would impose only a minimal burden on prosecutors, who can opt either to have the analyst retest the evidence or postpone the trial until the original analyst is available. Indeed, as both Smith and friend of the court briefs filed by criminal defense lawyers note, several states including California, the nations largest already follow the rule that Smith advocates, but the sky has not fallen.

Defending the state courts ruling, Arizona counters that the Supreme Courts cases make clear that the confrontation clause prohibits the use of out-of-court opinions as evidence when the defendant cannot cross-examine the expert offering the opinion. But the clause allows the introduction of statements when as in this case they are not used as evidence, but instead are introduced so that the jury can evaluate the testifying experts opinion.

In this case, the state explains, Longoni provided independent opinions about whether certain substances were illicit drugs, and in doing so disclosed some of the facts underlying his opinions. Those opinions were based on facts from two sources: Rasts lab notes and graphs containing the raw data generated by Rasts testing. The bottom line, the state concludes, is that Longoni was not a mere conduit for Rasts opinion.

But in any event, the statements at the center of the case Rasts notes could be used without violating the confrontation clause, the state contends. Longonis testimony relied on his review of Rasts lab notes, the state explains, which she created as part of a standard department practice to record what tests she performed and what instruments she used. The notes were not intended, the state reasons, to serve as testimony at Smiths trial; to the contrary, standing alone they would not have made any sense to the jury.

The state cautions that if Smiths rule were adopted, it would seemingly prohibit experts from basing their testimony on any testimonial statement beyond their personal knowledge, which would lead to increased laboratory backlogs and result in windfalls to defendants when analysts become unavailable before trial and critical evidence cannot be retested (as is often the case).

This article was originally published at Howe on the Court.