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.

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Notice and Demand — One More Time

I recently wrote here about North Carolina’s notice and demand statutes and how they allow the State to obtain a constitutionally valid waiver of confrontation clause rights with respect to forensic reports and chain of custody evidence. The purpose of that post was to remind litigants of the existence of the statutes. But knowing about … Read more


Don’t Look a Gift Horse in the Mouth

As I explain in more detail here, notice and demand statutes allow the State to obtain a constitutional waiver of confrontation rights so that forensic lab reports and related items can be admitted without the presence of the preparer. Nevertheless, I get a lot of calls from panicked prosecutors wondering how they are going to … Read more