Substitute Analyst Testimony and Smith v. Arizona

I mentioned in a recent News Roundup that the U.S. Supreme Court granted review in Smith v. Arizona. The case tees up a question that has been lingering since at least 2012: Does the Confrontation Clause permit the admission of substitute forensic analyst testimony? This issue arises when a forensic report is prepared for use in a criminal case, but the testing analyst is not available for trial. Instead of admitting the report through the original analyst, the State calls a different expert—one not necessarily involved in the original testing—to offer an opinion about the accuracy of the report. North Carolina generally allows such testimony, but there is a split among jurisdictions on the issue. Smith has the potential to alter the legal landscape here and elsewhere regarding the use of substitute analyst testimony, so today’s post dives into the legal issues and potential impact of the case.

Background. Forensic reports prepared in anticipation of prosecution are testimonial and subject to the Confrontation Clause. Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). A forensic report subject to the Confrontation Clause may not be simply read to the jury by a surrogate witness. Bullcoming v. New Mexico, 564 U.S. 647 (2011); State v. Craven, 367 N.C. 51 (2013). This means that the prosecution must produce the testing analyst at trial in order to admit a forensic report, subject to some important exceptions.

One common exception is so-called “notice and demand.” If the prosecution provides timely written notice of intent to admit a forensic report without the testimony of the analyst, then the defendant must make a demand for the analyst’s attendance at trial. If the defendant fails to make a timely written demand, his confrontation rights are considered waived, and the forensic report may be admitted at trial without any witness. North Carolina has a variety of notice and demand rules for forensic reports and chain of custody. See, e.g., G.S. 20-139.1 (c1) (analysis of blood or urine in an implied consent case); G.S. 90-95(g) (drug analysis reports); G.S. 8-58.20 (any lab report). Notice and demand procedures are generally constitutional. Melendez-Diaz at 314, n. 3.

The other common exception is the use of substitute analyst testimony. The “substitute” analyst reviews the work of the testing analyst, forms an independent opinion about the results, and presents that opinion at trial in lieu of the forensic report. The report may be admitted as the basis of the testifying expert’s opinion or as corroborative evidence, but it is not admitted as substantive evidence (and it may not be admitted at all). This practice has support in R. Evid. 703, which allows an expert to rely on underlying data or facts in support of their opinion when the data is of a type reasonably relied upon by other experts in the field—even when the underlying data is otherwise inadmissible.

North Carolina courts (and others) permit substitute analyst testimony when a proper foundation is laid. State v. Brewington, 367 N.C. 29 (2013). At a minimum, that foundation must establish that the report would be reasonably relied upon by experts in the field and that the substitute analyst has formulated an independent opinion about the result. State v. Ortiz-Zape, 367 N.C. 1, 11-12 (2013). The best practice for admitting substitute analyst testimony includes “establish[ing] compliance with . . . the lab’s standard procedures, whether the testifying analyst observed or participated in the initial laboratory testing, what independent analysis the testifying analyst conducted to reach her opinion, and any assumptions upon which the testifying analyst’s testimony relies.” Id. at 13, n. 3.

Courts in jurisdictions like North Carolina reason that it is the substitute analyst’s opinion that is being offered against the defendant and that the defendant can cross-examine and confront that witness. In the words of the North Carolina Supreme Court:

When an expert gives an opinion, it is the expert opinion itself, not its underlying factual basis, that constitutes substantive evidence. Therefore, when an expert gives an opinion, the expert is the witness whom the defendant has a right to confront. . . Accordingly, admission of an expert’s independent opinion based on otherwise inadmissible facts or data of a type reasonably relied upon by experts in the particular field does not violate the Confrontation Clause so long as the defendant as an opportunity to cross-examine the expert. Ortiz-Zape at 9.

Put another way, only out-of-court statements offered for the truth of the matter asserted—hearsay statements—implicate the Confrontation Clause. Since the forensic report is being used only as corroborative or basis of opinion evidence (and not for its truth), its use at trial by the testifying substitute analyst does not violate the Confrontation Clause.

Substitute Analysts and the U.S. Supreme Court. The U.S. Supreme Court has never squarely decided whether this practice comports with the Confrontation Clause. It took up the question in Williams v. Illinois, 567 U.S. 50 (2012), but no clear guidance emerged from that 4-4-1 plurality decision. The Court ultimately upheld the conviction where a substitute analyst presented an opinion about the results of a DNA report. A plurality of four justices found that the underlying report was not used for the truth of the matter asserted and did not violate the Confrontation Clause. A fifth justice concurred in result only but rejected the “truth of the matter” logic offered by the plurality. Four other justices dissented and would have held that the admission of the DNA report by a witness who played no part in the testing of the sample (and who lacked familiarity with the lab policies and procedures) violated the defendant’s confrontation rights. They too rejected the “truth of the matter” rationale and would have found that the forensic report was indeed used for the truth of the matter it asserted. “Allowing the admission of this evidence would end-run the Confrontation Clause, and make a parody of its strictures.” (Williams at 128) (Kagan, J., dissenting). That amounted to five votes against the logic underpinning the justification for the admission of substitute analyst testimony, despite a result upholding the conviction. (My colleague Jessie Smith did a deep dive into Williams here, if you’re interested.)

In the wake of Williams many defendants, including the defendant in Ortiz-Zape, sought review at the U.S. Supreme Court. See, e.g., Ortiz-Zape v. North Carolina, 572 U.S. 1134 (2014) (denying review). With several petitions on the issue before it, there were high hopes at the time that the Court would soon revisit substitute analyst testimony and issue a majority decision (as Jessie blogged about here). The Court never took another bite at it. A short 11 years later, the Court seems to have found its appetite for the issue once more.

Smith v. Arizona. Smith was convicted of state drug offenses, in part based on substitute analyst testimony identifying the suspected drugs as controlled substances. The defense objected on confrontation grounds at trial, preserving the constitutional issue for appeal. The forensic report was not admitted at trial, but the testifying expert referenced the report and refreshed his recollection with it during his testimony. The state appellate court affirmed, pointing in part to Williams and endorsing the “basis of opinion” argument. Smith argues that the basis of opinion theory is wrong. The report was being used for the truth of the matter asserted, the argument goes, because any opinion offered by the substitute analyst was based on the underlying report, which necessarily depended on the report’s truth. According to the Smith petition, the Confrontation Clause may not be circumvented in this way. You can read the pleadings in the case here.

(Note: There is a separate but related issue in Smith asking whether the defendant’s ability to subpoena the testing analyst can satisfy the Confrontation Clause. Because North Carolina courts have not relied on this argument, I am not focusing on it here, but it is another interesting aspect of the case.)

Reading the Tea Leaves. If a majority agrees with the Williams plurality, it will end any debate about substitute analysts—the practice would be permissible as a matter of the Sixth Amendment when the foundational requirements are met. If the dissenting view from Williams garners majority support, the Court could go one of two ways. A bright line rule prohibiting substitute analyst testimony is one possibility. A more nuanced approach, where the admissibility of substitute analyst testimony turns on the specifics of the case, is another. For example, the Court could hold that substitute analyst testimony is permissible when the testifying analyst supervised or participated in the testing and was familiar with the lab policies, procedures, and quality control mechanisms, but not admissible when the substitute analyst lacks such involvement and familiarity with lab processes and procedures.

Confrontation Clause cases make for strange bedfellows. The lineup in the Williams plurality included Chief Justice Roberts and Justices Alito, Kennedy, and Breyer. The dissenters included Justices Scalia, Ginsburg, Kagan, and Sotomayor. At least one of the newer members of the court has indicated disagreement with the “basis of opinion” theory in Williams. See Stuart v. Alabama, 139 S. Ct. 36 (2018) (Gorsuch, J., dissenting from denial of review). Justice Thomas was the single concurring justice in Williams, who again rejected the plurality’s reasoning but would have ruled against the petitioner for other reasons that no other justice joined. Assuming Justices Thomas, Kagan, Sotomayor, and Gorsuch all still agree that substitute analyst testimony violates the Confrontation Clause, only one additional vote from the newer justices (Justices Kavanaugh, Barrett, or Brown-Jackson) would be needed for a majority opinion changing state law.

Advice for Defenders. Defenders must first be vigilant not to inadvertently waive Confrontation Clause rights before trial. If the State serves a timely notice that meets the statutory requirements for the relevant notice and demand procedure, the defendant must make a timely written demand for the analyst’s testimony. Failure to do so results in the waiver of confrontation rights, and the State may admit the forensic report without any witness at all. The differences between all the types of notice and demand statutes in North Carolina are beyond the scope of this post, but defenders must be aware of and meet the deadlines for filing a demand under the different laws in response to any notice from the State. Recall too that state notice and demand statutes require service of written notice and production of the relevant report within a certain time frame. Where the State fails to meet the requisite deadlines, confrontation clause rights are not waived, regardless of whether the defendant makes a demand.

While we await a decision from the Court in Smith, defenders should consider raising constitutional challenges to substitute analyst testimony. Object under the Sixth Amendment Confrontation Clause and the comparable provision in Article 1, Sec. 23 of the North Carolina State Constitution. State the specific state and federal constitutional grounds for the objection each time the opinion is referenced to ensure preservation for appellate review.

Defenders should also be prepared to argue the foundational requirements for the admission of any substitute analyst testimony. Request voir dire of the substitute expert under R. Evid. 702 and the Confrontation Clause and move to exclude the testimony. Question the witness on their familiarity and involvement with the testing and the lab (or lack thereof), along with any underlying assumptions needed to formulate the opinion. If the substitute analyst is permitted to testify over objection, those same foundational questions may be asked again of the witness in front of the jury to attack the weight of the substitute expert’s opinion on the merits.

If you have any questions or feedback, I can always be reached at