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U.S. Supreme Court Curtails Substitute Analyst Testimony

The U.S. Supreme Court recently decided Smith v. Arizona, 602 U.S. ___; 2024 WL 3074423 (June 21, 2024) (Kagan, J.). The case settled a lingering question in Sixth Amendment Confrontation Clause jurisprudence: Does the Confrontation Clause permit substitute analyst testimony?

Courts have been split on the question, with North Carolina and Arizona among the jurisdictions that have generally allowed this type of expert testimony. Substitute analyst testimony arises when the person who performed forensic testing for use in a criminal trial is not available to testify, and the prosecution uses a substitute expert—one who was not necessarily involved in the testing—to present an independent opinion based on the original analyst’s forensic report. This practice derives from the evidentiary rule that an expert is allowed to rely on otherwise inadmissible information when it is used to form the basis of the expert’s opinion. N.C. R. Evid. 703. The underlying forensic report is treated as non-hearsay, offered only as the basis of the testifying expert’s opinion, not as substantive evidence. Instead, it is the testifying analyst’s independent opinion that is admitted substantively, and the defendant is only entitled to cross-examine the testifying expert (and not the person who performed the testing). This practice does not offend the Confrontation Clause, the argument has gone, because only testimonial hearsay statements are covered by the Confrontation Clause. Since the underlying forensic report is not offered for its truth when used as the basis of opinion, it is not hearsay and does not implicate the Confrontation Clause. State v. Ortiz-Zape, 367 N.C. 1 (2013)

Not so, according to the U.S. Supreme Court. “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.” Smith Slip op. at 1-2. Smith thus overrules Ortiz-Zape and its progeny on this question, and represents a significant shift in state law. (If this topic sounds familiar, I wrote a blog post last year previewing the Smith case.) Today’s post examines the impact and reach of Smith in North Carolina and offers advice for defenders facing substitute analyst issues. Read on for the details.

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Case Summaries: Smith v. Arizona; United States v. Rahimi (SCOTUS)

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This post summarizes Smith v. Arizona and United States v. Rahimi from the Supreme Court of the United States, decided on June 21, 2024. These summaries, prepared by Phil Dixon (Smith) and Jeff Welty (Rahimi) will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.

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Bruen Comes to North Carolina

My colleague Jeff Welty has covered the U.S. Supreme Court’s decision in New York Rife and Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), and subsequent lower court cases several times before on the blog. Under Bruen, “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.” Id. at 17. To overcome this presumptive protection, “the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Id. at 19. If the government fails to come forward with evidence showing the challenged rule is consistent with “the Nation’s historical tradition of firearm regulation,” the rule is unconstitutional under the Second Amendment. Id. at 24.

The Court of Appeals recently applied that rule in the context of G.S. 14-269.2, North Carolina’s law prohibiting possession of weapons on educational property. In State v. Radomski, COA23-340; ___ N.C. App. ___ (May 21, 2024); temp. stay allowed, ___ N.C. ___ (June 7, 2024), a unanimous panel held that the law was unconstitutional as applied to the defendant on the facts of the case. This is the first successful Bruen challenge to a state criminal law. Today’s post examines the holding and implications of the decision, and offers suggestions to defenders on how to raise, litigate, and preserve such claims.

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News Roundup

As AP News reports, Hunter Biden, the son of President Biden, was convicted of three felony offenses in a federal court in Delaware this week. The convictions include making a false statement to a licensed gun dealer, making false statements on the firearm purchase application form, and illegal possession of a gun. The younger Biden falsely represented that he was not disqualified as an unlawful user of controlled substances (one of the disqualifying grounds for gun possession under 18 U.S.C. 922(g)(3)). Biden is expected to appeal. One of his arguments in post-trial proceedings will be a challenge under the Second Amendment to the federal ban on gun possession by unlawful drug users. The trial court rejected a facial challenge to the law in pretrial proceedings but reserved judgment on the argument that the law was unconstitutional as applied to Mr. Biden under New York Rifle and Pistol Assn., Inc. v. Bruen, 597 U.S. 1 (2022). CNN has a report on this aspect of the case, here. As Shea reported in last week’s News Roundup, this is the first of two criminal trials faced by the president’s son. An additional federal trial in California on alleged tax crimes is expected to occur in September. Read on for more criminal law news.

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Fourth Circuit Strongly Suggests Including Temporal Limitations on Search Warrants for Social Media Account Information

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Earlier this year, the Fourth Circuit decided United States v. Zelaya-Veliz, 94 F.4th 321 (4th Cir. 2024). Phil summarized it here when it came out, but we thought it merited its own post because of its extended discussion of how the Fourth Amendment applies to search warrants for social media account information. The court’s discussion of the need for temporal limitations in such warrants is especially noteworthy, as is the court’s analysis of the scope of the information seized pursuant to the warrants approved by the court. We’ll start with a recap of the case, and then end with some thoughts for law enforcement and prosecutors, and for defenders.

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News Roundup

The first criminal trial of a former U.S. President continues to dominate the news. Trump’s trial on state charges of falsifying business records in furtherance of a felony in New York is now several weeks along. However the trial shakes out, the former president has already been adjudicated guilty of ten counts of criminal contempt for violating a gag order prohibiting him from talking about jurors and witnesses in the case. The trial judge has expressly warned Trump that further violations may result in jail (while also noting the practical difficulties that a jail term would entail). Politico has the latest on the contempt cases here.

Meanwhile, one of Trump’s other criminal cases involving the alleged mishandling of classified records in federal court in Florida is currently in limbo. While a trial date of May 20 had previously been set, the judge recently ruled that more time was needed to resolve pending pretrial motions and removed the case from the trial calendar without setting a new date for trial. It now seems likely that the Florida trial will not occur before the presidential election in November, as this story reports. Read on for more criminal law news.

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Plain Feel, Pill Bottles, and Probable Cause: State v. Jackson

A common point of confusion among law enforcement and the public is about the use of unlabeled pill bottles. Is it legal to possess prescription medicine in a container other than the original bottle with the prescription affixed? Does discovering an unlabeled pill bottle justify seizing and searching it to see if it contains contraband? Can a pill bottle be removed from a pocket during a frisk based on plain feel? Does it provide reasonable suspicion or probable cause to search or arrest a suspect? A case decided by the Court of Appeals earlier this month, State v. Jackson, No. COA23-727; ___ N.C. App.  ____; ___ S.E.2d ___ (Mar. 19, 2024), sheds some light on these questions. Read on for the details.

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