Justices send expert witness question back to state court

The Supreme Court on Friday sent the case of an Arizona man convicted of drug possession back to the state courts. Jason Smith argued that when an expert witness testified for the prosecution about drug analysis performed by another forensic scientist, it violated his right under the Sixth Amendment to be confronted with the witnesses against him.

In an opinion by Justice Elena Kagan, the court agreed with Smith that the requirements of the Sixth Amendments confrontation clause normally apply to a scenario like the one presented by his case that is, when an expert appears before a jury to relay the statements of an absent analyst in support of her opinion, and the analysts statements only provide that support if they are true. But the justices sent the case back to the state courts for them to determine whether the absent analysts statements qualified as testimony another criteria for the confrontation clause to apply.

The case came to the court after police officers executing a search warrant found methamphetamine and marijuana in a shed on a property owned by Smiths father. Greggory Longoni, a forensic scientist from the states Department of Public Safety, testified at Smiths trial that the substances that the officers found were indeed illegal drugs. Longoni relied on testing conducted by Elizabeth Rast, another DPS scientist who no longer worked for the state and did not testify. Smith was convicted and sentenced to four years in prison.

Smith appealed his conviction, but a state court ruled that the use of Longonis testimony did not violate the confrontation clause because Longoni had merely offered his independent opinion, relying on analysis prepared by Rast. Smith had been able to cross-examine Longoni, it concluded, and he could have subpoenaed Rast to testify.

The Supreme Court on Friday disagreed. Writing for the court, Kagan explained that Smith could only prevail if Rasts statements were used at trial to show that what she said was true (as Smith argued), rather than to serve as the basis for Longonis opinion (as the state contended). For purposes of testimony like Longonis, Kagan wrote, truth is everything. If an expert for the prosecution conveys an out-of-court statement in support of his opinion, she reasoned, and the statement supports that opinion only if true, then the statement has been offered for the truth of what it asserts. Or to put it another way, Kagan continued, the out-of-court statements are useful to the prosecutors precisely because they are true.

In this case, Kagan observed, Longoni could only testify about his opinion that the substances found on the property were illegal drugs because he accepted the truth of what Rast had reported about her work in the lab that she had performed certain tests according to certain protocols and gotten certain results.

Kagan stressed that experts like Longoni can still play a useful role in criminal trials. For example, she noted, Longoni could testify about how the lab where Rast worked normally operated, or about forensic guidelines and techniques more broadly. But most of his testimony took no such permissible form, she concluded.

The court did not weigh in on the separate question whether Rasts out-of-court statements were testimony, so that the requirements of the confrontation clause apply. Smith did not raise that issue in his petition for review, Kagan wrote. So the court sent Smiths case back to the state courts for them to determine whether Rasts records were testimonial (as well as whether he had waived his right to broach that question).

Justice Clarence Thomas joined most of the courts ruling, but he rejected the courts contention that the state courts should determine whether Rasts statements were testimonial by looking at their primary purpose. In his view, the confrontation clause only applies to formal testimony such as affidavits, depositions, or testimony in court.

Justice Neil Gorsuch also expressed skepticism about the primary purpose test for testimony, explaining that he was concerned, as well, about the confusion such a test may engender. But he believed that the court should not have weighed in on the issue at all.

Justice Samuel Alito (in an opinion joined by Chief Justice John Roberts) agreed with the result that the court reached but not its reasoning. In his view, Fridays ruling inflicts a needless, unwarranted, and crippling wound on modern evidence law, which has generally permitted experts to disclose the information that was the basis for their opinions. That doctrine developed, Alito explained, to replace a highly artificial and awkward prior practice in which expert witnesses were required to express their opinions as responses to hypothetical questions.

But Alito nonetheless agreed that the case should go back to the state courts because, in his view, Longoni stepped over the line and at times testified to the truth of the matter asserted, thereby implicating the confrontation clause.

This article was originally published at Howe on the Court.