As regular readers know, the U.S. Supreme Court decided Smith v. Arizona, 602 U.S. 779 (2024), this past June. The decision undercut the reasoning used by North Carolina courts to justify the practice of permitting substitute analysts to offer an independent opinion about the forensic report of another, nontestifying analyst (as discussed here and here). Until this week, no North Carolina court had applied Smith. The wait is now over. In State v. Clark, NCCOA-1133, ___ N.C. App. ___ (Dec. 3, 2024), the Court of Appeals delved into the impact of Smith on North Carolina law, ultimately granting the defendant a new trial for a Confrontation Clause violation. This post discusses the Clark decision and its implications for the future of substitute analysts in the state.
Facts. The defendant was on probation and was required to submit to warrantless searches as one of the terms of probation. In response to a tip that the defendant was selling drugs from his home, law enforcement searched his home, finding apparent methamphetamine. The substance was sent to the North Carolina State Crime Laboratory for analysis. A forensic analyst, Ms. Fox, tested the substance and generated a report identifying the substance as meth. By the time the trial rolled around, Ms. Fox was unable to appear in court and testify to her report. The State called a substitute analyst, Mr. Cruz-Quiñones, in her place to offer his independent opinion about Ms. Fox’s forensic report. Mr. Cruz-Quiñones did not test the substance himself and was not involved with the testing done by Ms. Fox. Over defense objection, Mr. Cruz-Quiñones was allowed to offer his expert opinion, based on the report by Ms. Fox, that the substance was indeed meth. The jury ultimately convicted the defendant of possession with intent to sell/deliver methamphetamine, and the defendant appealed. His sole argument on appeal was that his Sixth Amendment right to cross-examine and confront his accusers was violated by the admission of this substitute analyst testimony. After the defendant filed his opening brief in the Court of Appeals but before he filed his reply brief, the U.S. Supreme Court handed down the Smith decision.
Clark Decision. A unanimous panel of the Court of Appeals agreed with Clark’s argument, vacated his conviction, and remanded the case for a new trial. The court recognized that Smith implicitly overruled State v. Ortiz-Zape, 367 N.C. 1 (2013). Under Ortiz-Zape, if a substitute analyst offers his or her independent opinion based on the forensic report of another, there is no Confrontation Clause problem, because the underlying report is being used only for the basis of the testifying expert’s opinion, not for its truth. As discussed in the earlier posts about Smith, the Confrontation Clause only protects against testimonial hearsay. Because the underlying report is only being offered as a basis of the testifying expert’s opinion and not for its truth, Ortiz-Zape found the substitute analyst testimony did not offend the Confrontation Clause. Smith firmly rejected that reasoning, squarely holding that the statements in the underlying report used by the substitute analyst are indeed offered for their truth. When those underlying statements are also testimonial, the Confrontation Clause will generally bar their admission at trial when offered by someone other than the testing analyst.
The circumstances of Clark were virtually identical to the situation in Smith. One analyst tested the drugs, but another analyst who was not involved in the testing testified to the results as an independent opinion using the testing analyst’s report as the basis of opinion. Pursuant to the holding in Smith, the statements in the underlying report were hearsay. In the words of the court:
In the present case, Mr. Cruz-Quiñones . . . relied upon the truth of Ms. Fox’s statements in her report, which contained information about the substance Ms. Fox was testing, the methods she followed in testing it, and the purported results of her testing. That is, Ms. Fox’s statements are hearsay. Clark Slip op. at 7.
The statements in Ms. Fox’s report were also testimonial. Under State v. Craven, 367 N.C. 51, 57 (2013), forensic reports “created solely for an evidentiary purpose, made in aid of a police investigation, rank as testimonial.” Such was the case here. The report was from the State Crime Lab and contained the labels “only to be used in connection with an official criminal investigation” and “an official file of the North Carolina State Crime Laboratory. Clark Slip op. at 9. It was also created in response to a request from the Avery County Sheriff’s Department to aid the State’s criminal case against the defendant. “The record before us shows that Ms. Fox’s report was created solely to aid in the police investigation of Defendant as a matter of law.” Id. at 8 (emphasis added). Because the statements in the underlying report were testimonial hearsay, the defendant had a right to cross-examine the creator of the statements, Ms. Fox. Because that did not happen, the trial court erred in permitting the substitute analyst to testify. Because the substitute analyst testimony was critical to the State proving the identity of the substance at issue, the court found the error prejudicial, warranting a new trial.
Thoughts. Clark is a reminder that the primary purpose and intent behind the creation of the report matters for purposes of the Confrontation Clause analysis. The forensic report in Clark was prepared exclusively for use in Clark’s prosecution. As Clark notes, state law has recognized that kind of report as categorically testimonial since 2013. The court also noted that when a report is primarily created for some other reason, it may not qualify as testimonial, giving the example of a toxicology report prepared by a hospital for purposes of providing medical treatment to the defendant. There, the report would not have been created primarily to aid in the prosecution of the defendant, and the State may be able to admit it over a Confrontation Clause objection as a nontestimonial statement (although it would still need to meet a hearsay exception if the person who created the report was unavailable to testify).
Clark is also an indication that at least this panel of the Court of Appeals sees Smith v. Arizona as establishing something like a bright-line rule. If the report was created primarily for use at trial and the person who created the report is unavailable for trial, the Confrontation Clause will generally bar its admission through a substitute analyst (absent the defendant waiving his or her confrontation rights). The Clark court noted the possibility that the substitute analyst could have retested the substance and formulated his opinion based on that independent testing. By failing to do that and instead relying only on the statements in Ms. Fox’s report, the defendant was deprived of his ability to confront the person who tested the substance.
What if the testifying analyst had not merely relied on Ms. Fox’s report to formulate his opinion, but had instead examined the underlying data and test results used by Fox to reach her conclusion? That is much different from the substitute analyst retesting the substance and seems unlikely to avoid a confrontation problem. Smith (and now Clark) strongly suggest that when the statements in a report are covered by the Confrontation Clause, the defendant should generally have the right to question the person who did the testing. When a substitute analyst uses the data generated by the testing of another, the substitute analyst is still relying on the testing analyst’s word about which tests were done and how they were performed. Without the defendant having the ability to question the person who actually performed those steps, the defendant lacks any ability to meaningfully explore those issues at trial, seemingly ending up in the same place as if the substitute analyst had merely formulated an opinion based on examination of the report.
That said, as Shea Denning recently discussed, there are any number of other factual scenarios that can arise in this context that Smith and Clark do not reach, such as when the substitute analyst was partially involved or supervised the testing by another. It will be exciting to see how our courts grapple with these and other questions in this area. Further, it may not be the end of the story for Mr. Clark—as the first decision applying Smith v. Arizona, it’s entirely possible that the North Carolina Supreme Court will want to weigh in on the issue. If that happens, you can be sure to read about it here.