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 drives from the evidentiary rule that an expert is allowed to rely on 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, representing 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.
The Smith Opinion Lineup and Holding. In the earlier post on Smith, I anticipated that there would be at least five votes to reject the “basis of opinion” logic used to justify substitute analyst testimony. It turns out there were seven. Justice Kagan authored the opinion of the Court, joined in full by Justices Sotomayor, Kavanaugh, Barrett, and Jackson. Justice Gorsuch concurred in part. He joined the Court’s decision rejecting the basis of opinion logic but wrote separately to note his disagreement with the Court’s discussion of how the lower court should determine whether the statements at issue were testimonial (a point we will come back to shortly). Justice Thomas also concurred separately. He likewise joined the Court in rejecting the basis of opinion justification but faulted it for continuing to recite what is (in his view) the wrong test to determine whether a statement is testimonial. Only Chief Justice Roberts and Justice Alito would have allowed the practice of justifying substitute analyst testimony under the basis of opinion logic to stand. They concurred in the judgment only, finding that the substitute analyst testimony in the case went too far and implicated the Confrontation Clause, but would have ended the Court’s analysis there, without addressing the broader question of the appropriateness of substitute analyst testimony in general. That amounts to a unanimous decision in favor of Mr. Smith (albeit under some very different approaches).
The Court went with a bright-line rule: When a testifying expert relies on a testimonial forensic report of another, the defendant’s right to confront and cross-examine his accuser(s) is violated, because the underlying forensic report is offered for the truth of the matter asserted (and is therefore hearsay). As the Court explained:
. . .[T]ruth is everything when it comes to the kind of basis testimony presented here. If an expert for the prosecution conveys an out-of-court statement in support of his opinion, and the statement supports that opinion only if true, then the statement has been offered for the truth of what it asserts. How could it be otherwise? The whole point of the prosecutor eliciting such a statement is to establish –because of the statement’s truth—a basis for the jury to credit the testifying expert’s opinion. Smith at 14 (cleaned up) (emphasis in original).
Allowing the defendant to question the testifying expert about their independent opinion is not an adequate substitute for cross-examining the absent analyst. Absent a prior motive and opportunity by the defendant to cross-examine the analyst who performed the testing (and assuming no waiver or forfeiture of confrontation rights), the Confrontation Clause does not allow a substitute analyst to offer the testimonial hearsay statements of the unavailable analyst.
Testimonial Hearsay. The opinion emphasizes that the Confrontation Clause does not allow the admission of testimonial hearsay by a substitute analyst. There is a lot packed into that phrase. The Smith opinion carefully distinguishes between the two related but distinct concepts — 1) whether a statement is hearsay and 2) whether a statement is testimonial. Smith holds only that when a substitute analyst uses a forensic report as the basis of their independent opinion, the underlying report is being offered for the truth of the matter asserted and is thus hearsay—an out-of-court statement offered for its truth. The Court expressly declined to decide whether the underlying report was also testimonial, remanding that question for further consideration below.
A statement is testimonial when, “in light of all the circumstances, viewed objectively, the primary purpose of the conversation was to create an out-of-court substitute for trial testimony.” Ohio v. Clark, 576 U.S. 237, 245 (cleaned up). Statements made during a formal police interrogation meant to prove facts for a later criminal prosecution are typically testimonial, while statements made to enable police to respond to an ongoing emergency are nontestimonial. Davis v. Washington, 547 U.S. 813 (2006). The Confrontation Clause is only triggered when an out-of-court statement is both hearsay and testimonial. Here, Arizona never argued that the forensic evidence (i.e. the report) was testimonial, apparently presuming it was. Arizona might be forgiven for failing to argue that point, given that the Court has previously held that forensic reports prepared for trial are testimonial. Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). Which brings us to the next point . . .
Nontestimonial Lab Records? The Court’s opinion in Smith acknowledges the holding in Melendez-Diaz and related cases but notes that some records produced while preparing a forensic report will not be testimonial. The Court explained:
. . .[L]ab records may come into being primarily to comply with laboratory accreditation requirements or to facilitate internal controls. Or some analysts’ notes may be written simply as reminders to self. In those cases, the record would not count as testimonial. Smith Slip. op. at 21.
This part of the discussion in Smith is not necessary to the Court’s determination of the issue before it and is arguably dicta (as Justice Gorsuch’s concurrence observes). That said, it raises an interesting possibility: The prosecution could attempt to admit any nontestimonial records generated by an unavailable analyst as substantive evidence.
A couple of thoughts on that point: To the extent lab records generated in the process of forensic analysis are nontestimonial, they will be hearsay when offered by a witness other than the declarant and will still need to meet an applicable hearsay exception to be properly admitted into evidence. Assuming the records can meet such an exception, their probative value is an open question and may depend on the specifics of a given case. One can imagine these types of nontestimonial forensic records will be less specific than a final forensic report and may lack the evidentiary weight of a final report. Finally, the line between testimonial lab records and nontestimonial ones may be a thin one in this context. We will have to wait and see how this suggestion from the Court plays out in terms of practical significance as these issues are litigated in Smith’s aftermath.
Other Uses of Substitute Analysts. Beyond the suggestion that prosecutors may be able to admit nontestimonial records generated from a forensic analysis, Smith reminds practitioners that there may be other roles for substitute analysts to play in a criminal trial. According to the Court, an expert witness with personal knowledge of a lab’s “standards, practices, and procedures” may still testify to those topics without offending the Confrontation Clause. Id. at 18. The Court also suggests that such a witness could help explain best forensic practices generally, how chain of custody is typically handled by labs, and the significance of lab accreditation. A substitute analyst may also be allowed to offer testimony on hypothetical questions. In the Court’s words: “The latter forms of testimony allow forensic expertise to inform a criminal case without violating the defendant’s right of confrontation.” Id.
Note that North Carolina allows hypothetical questions of an expert, but only when the hypo is based on facts in evidence or reasonable inferences that a factfinder can draw from the evidence in the case—it cannot be based on rank speculation. See, e.g. State v. Holder, 331 N.C. 462, 481 (1992). Like with the possibility of nontestimonial lab records, how frequently this kind of testimony will be offered by the State and how much weight it will carry with the jury is an open question, but Smith notes that substitute analysts still have that much of a potential role to play in a criminal trial.
Advice for Defenders. As practitioners learn of the decision, Smith will likely change the way forensic reports are admitted at trial in state court. In its wake, there will likely be fewer attempts by the State to utilize a substitute expert at trial (at least to offer testimonial lab records). Moving forward, it seems likely that the State will be required to either produce the original testing analyst at trial, or, when the analyst is not available, have testing performed anew by a different analyst who is available for trial (when retesting is possible).
If the State utilizes one of our many notice and demand statutes and the defendant fails to file a timely objection demanding the analyst’s presence at trial, there is no Confrontation Clause violation, and the forensic report is admissible without any witness. Defenders must know the specific rules and timelines for the various notice and demand rules and pay careful attention to deadlines (a cheat sheet on those rules by Jessie Smith is available at page 35, here). Defenders should also thoroughly examine the substance and timing of the State’s notice. When the notice is defective, arguably no demand from the defense is required to assert the defendant’s confrontation rights at trial. Where the defendant makes a timely demand (or where the State fails to follow the proper notice and demand procedure), the analyst who performed the testing will have to appear in court for the State to admit any testimonial parts of the report.
If the State attempts to admit the forensic report of another by way of an independent expert despite the holding in Smith, defenders should object under the Sixth Amendment Confrontation Clause and the comparable provision of Article 1, Sec. 23 of the North Carolina Constitution, as well as on hearsay grounds. To the extent the State attempts to categorize the forensic records of a nontestifying analyst as nontestimonial, the defense can make the same objections. Depending on the specifics of the case, defenders may be able to argue that the records are in fact testimonial and that their admission violates the Confrontation Clause. Alternatively, if they are nontestimonial, they are still hearsay. It also seems likely that the State will need an expert to present and interpret things like accreditation records and analyst notes, so defenders should be ready to make objections under N.C. Evid. R. 702 if the State attempts to offer such evidence through an unqualified witness like a layperson. Even when such lab records are nontestimonial, meet an applicable hearsay exception, and are offered by a qualified expert, the defense can still argue to the finder of fact that these kinds of lab records should not be given the same weight as an actual forensic report attested to by the person who performed the testing.
Finally, defenders should consider the potential civil law implications of the Smith decision. While the Confrontation Clause only applies to criminal trials (and probably the adjudicatory stage of delinquency proceedings), there is a comparable due process right to confrontation in abuse, neglect, dependency proceedings and possibly other contexts. Defenders may argue that Smith dictates that what’s good for the Sixth Amendment confrontation goose is good for the gander (i.e. the due process right of confrontation).
Preserving Confrontation Errors for Appeal. Trial errors implicating a constitutional right like confrontation are presumed to be prejudicial on appeal, but the State can try to show the error was harmless beyond a reasonable doubt—that is, that the error did not affect the outcome of the trial. G.S. 15A-1443. It is important for the defense to stay alert to any other evidence in the case that could render a confrontation error harmless. In a drug case like Smith, this might include lay opinion evidence from an officer or informant or other unreliable evidence that the substance at issue is an illegal drug. A lay opinion is typically not admissible to prove the identity of a controlled substance. State v. Ward, 364 N.C. 133 (2010). Without an objection from the defense, though, such improper drug identification evidence may come in, and will count against the defendant in any harmless error analysis on appeal. (You can read more about drug identification evidence issues and defense objections here and here.)
Stay tuned for another post soon on Smith and retroactivity. Until then, I can be reached as always at dixon@sog.unc.edu for any questions or feedback.