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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