I recently gave a criminal law case update to a group of judges. I had quite a few cases that I planned to cover in relatively short order. I started with Smith v. Arizona, 602 U.S. 779 (2024), in which the United States Supreme Court held that statements from an absent laboratory analyst that a testifying analyst conveyed to support his expert opinion about the chemical composition of the substances seized from the defendant were hearsay. For that reason, their admission at the defendant’s trial on drug charges raised Confrontation Clause concerns. To my chagrin, twenty minutes later, I was still talking about Smith, attempting to helpfully respond to a barrage of questions from trial court judges about the practical import of the decision for various kinds of testimony frequently proffered by the State during a criminal trial. Those questions included the following:
- The substitute analysts I see don’t typically rely on another analyst’s report. Instead, they examine the underlying testing data and reach an opinion based on that. Is that testimony admissible?
- May a supervising analyst who reviewed the testing done by and conclusions of another analyst pursuant to laboratory protocols testify to the conclusions the supervising analyst reached about the identity of the substance?
- Suppose a new analyst retests a substance. Will he or she be able to establish a sufficient chain of custody for the substance tested given that the substance was initially received and examined by an analyst who is not available to testify?
This post will review what we knew about substitute analyst testimony before Smith was decided, will recap the Court’s analysis in Smith (analyzed in detail here), and will provide some thoughts about Smith’s import that may inform a court’s analysis of the questions posed above.
What we already knew.
Before Smith was decided, we knew the following:
- The Confrontation Clause of the Sixth Amendment bars the State from introducing testimonial hearsay by a witness who does not testify at trial unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S. 36 (2004).
- Testimonial statements are those made for the primary purpose of establishing facts relevant to a criminal proceeding. Davis v. Washington, 547 U.S. 813, 823 (2006).
- Hearsay is an out of court statement offered for its truth. Anderson v. United States, 417 U.S. 211, 219 (1974).
- The Confrontation Clause applies to testimonial hearsay by forensic laboratory analysts in the same way it applies to other evidence. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 318-21 (2009). Thus, Melendez-Diaz held that the trial court erred by admitting into evidence affidavits reporting the results of a forensic analysis showing that the material seized by the police and connected to the defendant was cocaine. Id. at 307.
- The State may not circumvent the protections of the Confrontation Clause by introducing testimonial hearsay through a surrogate witness who has not formed an independent opinion about statements proffered for their truth. Bullcoming v. New Mexico, 564 U.S. 647, 661-62 (2011). Bullcoming held that the trial court erred by permitting a surrogate analyst — who did not participate in the testing of the defendant’s blood or form an independent opinion about the results — to testify about the analysis of the defendant’s blood and the alcohol concentration results memorialized in another analyst’s report. Id.
What remained an open question.
Until Smith, the Supreme Court had not yet decided whether a substitute analyst who did have an independent opinion about the results of a forensic analysis but who did not participate in testing could testify. Cf. Williams v. Illinois, 567 U.S. 50 (2024) (four justice plurality concluded that state analyst could testify that a DNA profile produced by an analyst at a private laboratory came from the victim, reasoning that an expert may disclose underlying facts and data to explain the basis of her opinion and when she does so those facts are not admitted for their truth; five justices rejected that reasoning, but disagreed as to whether the statement was testimonial) (discussed in detail here).
The North Carolina Supreme Court had held such testimony admissible under the theory that the Confrontation Clause is satisfied by the defendant’s ability to cross-examine the testifying expert about that expert’s opinion, even if the expert relied on otherwise inadmissible facts. See State v. Ortiz-Zape, 367 N.C. 1, 9 (2013) (emphasizing that the expert must present an independent opinion and may not merely parrot an otherwise inadmissible statement). The Court in Ortiz-Zape also addressed the “related issue” of whether the expert could disclose the facts and data upon which the expert relied to the factfinder, holding that it was permissible for an expert to disclose the machine-generated raw data upon which the expert relied. The Court reasoned that the data was neither hearsay nor testimonial as it was not the statement of a person. Id. at 10.
Smith v. Arizona, 602 U.S. 779 (2024). My colleague Phil Dixon has already spilled a fair amount of digital ink discussing Smith, see posts here, here, and here, so I will attempt to keep this brief.
In Smith, a substitute analyst, Longoni, testified about the forensic analysis of drugs seized during the investigation of the defendant. Longoni testified to his independent opinion that the drugs were methamphetamine, marijuana, and cannabis. The defendant challenged the admission of Longoni’s testimony on Confrontation Clause grounds. Longoni himself had not tested the drugs. Instead, they had been tested by another scientist, Rast, who did not testify at trial.
Below is an excerpt of Longoni’s testimony:
Q: From your review of the lab notes in this case, can you tell me what scientific method was used to analyze Item 26?
A: Yes.
Q: And what was used?
A: The microscopic examination and the chemical color test….
Q: That was done in this case?
A: Yes, it was.
Q: Was there a blank done to prevent contamination, make sure everything was clean?
A: According to the notes, yes.
Q: In reviewing what was done, your knowledge and training as a forensic scientist, your knowledge and experience with DPS’s policies, practices, procedures, your knowledge of chemistry, the lab notes, the intake records, the chemicals used, the tests done, can you form an independent opinion on the identity of Item 26?
A: Yes.
Q: What is that opinion?
A: That is a usable quantity of marijuana.
The Arizona Court of Appeals held that Longoni’s testimony did not violate Smith’s confrontation rights. The court reasoned that Longoni gave his independent opinion (permissibly relying on Rast’s forensic report) and was subject to cross-examination.
The Supreme Court saw it otherwise and vacated the decision below. As previously noted, the Court held that when an expert conveys an absent analyst’s statements in support of his opinion, and those statements provide that support only if true, then the statements come into evidence for their truth. That makes those statements hearsay. If they also are testimonial, their admission violates the Confrontation Clause.
The Court characterized the opinion below as offering only a “slight variation” on the practice on the type of testimony deemed inadmissible in Bullcoming. It criticized the Arizona rule for allowing a surrogate analyst to testify to someone else’s substance so long as the analyst based an “‘independent opinion’” on that material – even if the opinion “merely replicates” and does not “build on” the absent analyst’s opinion. 602 U.S. at 798-99. This interpretation, the Court said, would provide an end run around what the Confrontation Clause requires.
The Court went on to say that Longoni still could have played a useful role at trial. He could permissibly have testified to his personal knowledge of lab procedures, forensic guidelines and techniques, and could have responded to hypothetical questions such as “‘If or assuming some out of court statement were true, what would follow from it?’”). As to this last point, the Court noted that the State still would have to separately prove the thing assumed. Id. at 799.
The Court did not decide whether the statements relied upon by Longoni were testimonial, returning that issue to the state court. The majority nevertheless “offer[ed] a few thoughts” about appropriate considerations in making that determination. Id. at 801. First, it said the court below must consider which statements are at issue as it was not clear whether Longoni relied on Rast’s notes, her report, or both. Second, it said the court should consider the primary purpose of Rast’s statements, noting that some records of lab analysts may be created for lab accreditation, internal review, and quality control purposes rather than evidentiary purposes.
So where does that leave us?
One view of Smith is that it establishes something close to a bright-line rule. That is, a substitute analyst may never (or almost never) testify to the results of a forensic analysis done by someone else. That is because the testifying analyst must necessarily rely on the inadmissible (and presumably testimonial) notes or report of an absent analyst to form an opinion. This may be the case even if the original analyst’s file is replete with machine-generated results which themselves are not testimonial. Why? Because the testifying expert can link the items tested to the defendant only by reviewing laboratory documentation created by someone else. And the expert can only determine that laboratory protocols were followed (and thus that the testing is accurate and reliable) by examining another analyst’s presumably testimonial statements.
This view finds support in statements from Smith eschewing the Arizona rule because it would deprive a defendant of the “right to cross-examine the testing analyst about what she did and how she did it and whether her results should be trusted” and finding fault with Longoni’s testimony because “[h]e testified to the precautions (she said) she took, the standards (she said) she followed, the tests (she said) she performed, and the results (she said) she obtained.” Id. at 799-800. Smith notes that the jury could credit Longoni’s opinion identifying the drugs only if it accepted what Rast reported about her lab work, namely that she had performed certain tests according to certain protocols and got certain results. Id. at 797-98.
If this view holds, the State will be required to proffer the testing analyst in nearly every (if not absolutely every) circumstance. If the original testing analyst is unavailable to testify, another analyst must redo the analysis for the results to be admissible. While conducting a second analysis may be feasible in many cases (particularly those involving the analysis of suspected unlawful substances), it is not always possible. See Melendez-Diaz, 557 U.S. 318 n. 5 (noting that “[s]ome forensic analyses, such as autopsies and breathalyzer tests, cannot be repeated, and the specimens used for other analyses have often been lost or degraded”).
Other parts of the opinion indicate that the import of Smith may be more nuanced. The Court repeatedly refers to Longoni’s “‘independent opinion’” using punctuation that makes clear the court’s view that Longoni essentially served as a mouthpiece for Rast. It further criticizes the Arizona rule as permitting the admission of every testimonial lab report through a trained surrogate “however remote from the case,” perhaps signaling that testimony from another analyst closer to the case (such as a reviewing analyst) might not be objectionable (assuming the testifying analyst demonstrated efforts to reach an independent conclusion). In punting on whether the statements upon which Longoni relied were testimonial, the Court expressly allowed for the possibility that some statements might not be. If an analyst’s notes relate to chain of custody and adherence to laboratory protocols, are they necessarily testimonial? Compare Melendez-Diaz, 557 U.S. at 311 n.1 (stating that what steps in the chain of custody are introduced must be introduced live) with United States v. Johnson, 688 F.3d 494, 505 (8th Cir. 2012) (finding that a technician’s notations on the lab report indicating when she checked the methamphetamine samples into and out of the lab were not the kind of testimonial statements offered or admitted to prove the truth of the matter asserted and stating that “chain of custody alone does not implicate the Confrontation Clause”) and State v. Brockmeyer, 751 S.E.2d 645 (S.C. 2013) (deeming chain-of-custody information related to evidence logs to be nontestimonial); Cf. Bullcoming, 564 U.S. at 660 (characterizing as “meet for cross-examination” the analyst’s statements that he received the sample intact with the seal unbroken, checked to ensure the report and sample number corresponded, and followed a precise protocol). If they are not, perhaps a substitute analyst may permissibly rely on such notes in forming her opinion. If all or portions of them are testimonial and thus inadmissible, may the analyst (if she is from the same laboratory) establish a chain of custody and protocol-adherence by testifying to laboratory policy? See Smith, 602 U.S. at 799 (“Because Longoni worked in the same lab as Rast, he could testify from personal knowledge about how that lab typically functioned – the standards, practices, and procedures it used to test seized substances, as well as the way it maintained chains of custody.”) These conflicting interpretations of Smith’s import are what made it particularly difficult for me to field the questions posed at the outset of this post.
Given the recency of Smith, it is not particularly surprising that to date we limited guidance from courts applying its holding. See, e.g., State v. Shea, 2024 WL 4115377 (Minn. Ct. App. 2024) (unpublished and non-precedential) (distinguishing the admission of an analyst’s testimony regarding a DNA match, which was based in part on analysis by another non-testifying analyst, from the expert testimony in Smith; noting that the testifying analyst was directly involved in the case as the technical reviewer who had independently reviewed the machine-generated DNA profiles; finding the testifying analyst relied on chain of custody protocols rather than her colleague’s report for chain of custody information); State v. Aragon, 555 P.3d 571 (Ariz. Ct. App. 2024) (rejecting the defendant’s argument in a negligent homicide and impaired driving case that the State was required to call as a witness the technician who downloaded data from her car’s event data recorder (EDR); determining that the defendant’s confrontation rights were satisfied by her cross-examination of the detective who relied on the EDR in reconstructing the crash). Over the coming months that is sure to change, and we will be here to keep you posted.
In the meantime, I welcome your thoughts, questions, and insights. You can reach me at denning@sog.unc.edu.