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| Richard Friedman |
The Sixth Amendment of the U.S. Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him."
Nearly 20 years ago, in its 2004 Crawford v. Washington decision,[2] the Supreme Court transformed the law governing the confrontation clause. Previously, it had treated the clause almost as if it constitutionalized the law of hearsay, with all its complexities and oddities.
In Crawford, the court sought to recover the historical meaning of the confrontation right: It is a procedural rule about how witnesses give testimony. They must testify face-to-face with the accused, under oath and subject to cross-examination, and at trial if reasonably possible.
All well and good, but because Crawford wiped the slate clean, many significant issues remained. Some of them concerned forensic lab reports. In its 2009 Melendez-Diaz v. Massachusetts decision,[3] the court held that a prosecutor could not prove that a questioned substance was cocaine by presenting a certificate from a state forensic lab. The certificate was a testimonial statement, and so its author would have to testify at trial.
But that 5-4 decision was only the beginning. Some observers thought, despite a clear indication to the contrary in Melendez-Diaz, that the state might provide for admission of such certificates so long as the accused had the opportunity to call the author as a trial witness and examine them as if on cross-examination, but in Briscoe v. Virginia the following year,[4] the court refused to step backward.
Next, in its 2011 Bullcoming v. New Mexico decision,[5] the court refused to allow a substitute analyst testify as to the conclusions of a lab report in the absence of the author, with the same four justices dissenting as in Melendez-Diaz — Chief Justice John Roberts, and Justices Anthony Kennedy, Stephen Breyer and Samuel Alito.
Finally, in Williams v. Illinois,[6] the foursome gained a measure of success. Williams was a cold-hit DNA case — that is, one in which a forensic lab tested a crime scene sample without a suspect having already been identified. DNA swabs from a rape in Chicago were sent to Cellmark Diagnostics Laboratory, a lab in Maryland, which generated a DNA profile that, through a database search, was determined to match that of Sandy Williams, a Chicago resident.
But nobody from Cellmark testified at Williams' trial. Ultimately, the Supreme Court held in 2012 that there was no confrontation clause violation. The four Melendez-Diaz dissenters reached this conclusion on two grounds.
One drew on the basic principle that the confrontation clause, like the hearsay rule, is violated only if a statement is used to prove the truth of a matter it asserts.[7] And, the four justices contended, the Cellmark report was used only in support of the opinion of the in-court expert that the profile matched that of Williams, which they thought was distinguishable from offering it for its truth — even though it supported the opinion only if true.
Justice Alito's opinion invoked Federal Rule of Evidence 703, which allows an expert to testify to an opinion based on otherwise inadmissible facts or data, and in some cases even to disclose them, if those facts or data are of a type on which "experts in the particular field would reasonably rely ... in forming an opinion on the subject."
In essence, they concluded that this rule — a creation of the latter half of the 20th century — provides a path to admissibility even of out-of-court testimonial statements that have no value in supporting an expert's opinion unless they are true. The other five justices rejected that conclusion.
The second ground adopted by the four was that the Cellmark report was not testimonial, largely because it was, in their view, not directed against a "targeted individual." The other five rejected that theory as well.
But one of the five, Justice Clarence Thomas, joined in concluding that the report was not testimonial, on the rather surprising ground that it was not sufficiently formal to be so characterized — notwithstanding that it was signed, bore a case number and was directed to law enforcement authorities.
And so, Williams generated no majority opinion, and no guidance for the lower courts. The court declined numerous opportunities to try to clear the situation up until, with substantially changed membership, it granted certiorari in Smith.
The basic facts of Smith are rather simple. Jason Smith was arrested on drug charges. A state lab analyst, Elizabeth Rast, performed tests on various items and concluded that they were illicit drugs. But by the time of trial, Rast was no longer employed by the state lab, for reasons that were never explained.
Rather than calling her to testify at trial, the state called another state lab analyst, Gregory Longoni. Rast's notes, and the report to which they were attached, were never formally introduced into evidence, but Longoni explicitly relied on the notes, and arguably on the report as well, in giving his testimony.
His conclusions were in accordance with Rast's, but the Arizona Court of Appeals held that there was no confrontation problem because Rast's statements were not being used for the truth of what they asserted, but rather only in support of Longoni's "independent opinion." In doing so, they applied Arizona's counterpart to Federal Rule of Evidence 703.
But of course, evidentiary rules do not control the U.S. Constitution. And so the Supreme Court granted certiorari to resolve an issue already addressed in, but not resolved by, Williams, because the conclusions of a majority of the court on the issue did not control, and in fact pointed in the opposite direction from, the result of the case.
That issue is: Does the confrontation clause allow prosecutorial evidence to convey the substance of an out-of-court testimonial statement, on the ground that it is being used only in support of an expert's opinion, even though the maker of the statement does not testify at trial and the statement supports the opinion only if it is true?
Oral argument on Jan. 10 gave the strong sense that the court will answer that question in the negative. Only Justice Alito — who, along with Chief Justice Roberts, is one of two justices remaining from the Melendez-Diaz dissenters and Williams plurality — seemed potentially disposed to answer it in the affirmative.
Perkins Coie LLP attorney Hari Santhanam, arguing for Smith, clearly made the point that if a statement supports an opinion only if the statement is true, then there is no real difference between admitting the statement for the truth of what it asserts and admitting it in support of the opinion.
The court may well hold that an opinion that relies, at least explicitly, on an out-of-court testimonial statement for its factual basis is not independent in any constitutionally meaningful sense.
Indeed, Smith's case is strengthened by the fact that Longoni not only relied on Rast's findings in forming his conclusions — which, it appears, followed almost inevitably from the findings — but also made that reliance explicit. That fact appears to account for the posture of the U.S. government, acting as amicus in the case through Deputy Solicitor General Eric Feigin.
Ultimately, the government did not support the state — an unusual posture for it, as noted repeatedly by Justice Elena Kagan, a former solicitor general herself. Without quite saying that the state had violated Smith's confrontation right, the government strongly suggested that it had — with Feigin stating, "Longoni's testimony here may have gone too far" — and it contended that the case should be remanded.
At the same time, the government sought to preserve the ability of prosecutors' experts to rely on out-of-court testimonial statements without making that reliance explicit. Whether such a procedure would in itself allow the in-court expert to act, in effect, as a conduit for the maker of the testimonial statement is a question the court would have to address, though perhaps not in this case.
Similarly, the court may at some point have to consider whether, as the government suggested, an expert — without expressly testifying as to what an out-of-court analyst did in the particular case — could describe the lab's usual processes, testify that they had no reason to believe that it departed from those processes in the present case, and on that predicate offer an opinion as to the contents of a given substance.
Notably, one aspect of the question presented received no attention during argument, and a good deal of time was spent on an issue not presented. The court below had suggested that the ability of a defendant to subpoena the absent analyst mitigated any confrontation problem, but the state made no attempt, either in its brief or in argument, to defend that proposition.
Several justices, though, were very interested in the question of whether Rast's statements, particularly her notes, should be deemed testimonial. Most strikingly, Justice Brett Kavanaugh asked each of the three advocates — Santhanam, Feigin and Arizona Principal Deputy Solicitor General Alexander Samuels for the state — whether the court should abandon the test it has most recently used, dependent on the primary purpose of the statement or the interrogation of which it is a part, and instead adopt the test advocated by Justice Thomas, dependent on the solemnity or formality of the statement.
The court appears very unlikely to address that question here, because it would have to struggle to hold that the state had preserved it for review. But now that the court seems prepared to reengage in developing the new law of the confrontation clause, it might take up another case in which to consider what the bounds of "testimonial" should be, and whether a "primary purpose" test is too indeterminate to be of much use.
If it adopted a requirement of formality akin to the one applied by Justice Thomas in Williams, it would severely limit the scope of the clause. But perhaps the court will find a useful approach based on solemnity, if that is construed as meaning the witness's understanding of the gravity of the statement's consequences.
Richard D. Friedman is the Alene and Allan F. Smith Professor of Law at the University of Michigan Law School. He is the author of "The Elements of Evidence."
Disclosure: Friedman was counsel for the petitioners, Mark Briscoe and Sheldon Cypress, in Briscoe v. Virginia. In addition, he filed amicus briefs in Crawford, Melendez-Diaz, Bullcoming, Williams and Smith.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] Smith v. Arizona
, No. 22-899.[2] Crawford v. Washington
, 541 U.S. 36 (2004).[3] Melendez-Diaz v. Massachusetts
, 557 U.S. 305 (2009).[4] Briscoe v. Virginia
, 559 U.S. 32 (2010).[5] Bullcoming v. New Mexico
, 564 U.S. 647 (2011).[6] Williams v. Illinois
, 567 U.S. 50 (2012).[7] Tennessee v. Street
, 471 U.S. 409 (1985).