Yesterday, the Supreme Court granted certiorari in Smith v. Arizona, No. 22-899, a case that might help provide some clarity much needed since the Court's decision in Williams v. Illinois. Here are some preliminary thoughts.
Williams involved a DNA report in a cold-hit case. Five justices concluded that the report was not testimonial, but no rationale leading to that proposition gained the support of a majority. Four of those five justices also concluded that the prosecution did not use the report for the truth of a matter asserted in it. The primary reason that they cited in favor of that conclusion was that the prosecution used the report in support of the opinion offered by an expert who testified at trial; this, they believed, was not using it for the truth of what it asserted. Although five justices rejected this analysis, some courts have adhered to it -- and one of those is the Arizona Court of Appeals in the Smith case. Smith was tried on various drug charges. A forensic analyst from a state lab testified to what the substances were, but the factual predicates of his testimony were drawn from the report of another analyst, who (for reasons apparently not explained) no longer worked for the lab. Not a problem, thought the court; the testifying analyst was giving his "independent opinion" and the report was only used in support of this opinion.
I have written several times previously on this blog about the theory that presenting (whether by formal admission or otherwise) a lab report in support of an expert's opinion is not presenting it for the truth. If the report supports the opinion only if it is true, then, as I have said, I think it is a sham to say it is not being presented for the truth. This is what I have called the expertise end run, one example of the not-for-the-truth end run. I thought it should have been disposed of nearly 18 years ago once the New York Court of Appeals issued its very fine opinion in People v. Goldstein. (Among my other posts on the topic are this one and this one.) Smith provides an opportunity to put the issue finally to rest.
By the way, the report in Smith was not formally introduced into evidence. In the context of a case like this, in which the substance of the report is clearly conveyed to the jury and is a predicate for the testifying expert's opinion, that should not matter. See especially this post and also this one
Another issue raised by the Smith petition is that the Arizona court said, as the four justices did in Williams, that if the accused wanted to examine the absent analyst he could have called the analyst himself. That idea should have been completely disposed of by Melendez-Diaz v. Massachusetts, which proclaimed that "the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court." The two are not close to equivalent; for a full elaboration of this argument, see my brief for the petitioners in Briscoe v. Virginia. It appears the dissenters in Melendez-Diaz took another shot at the issue by granting certiorari in Briscoe , but the Court slapped that attempt down by remanding the case for reconsideration in light of Melendez-Diaz. We can hope this issue as well will finally be resolved, though I'm not sure how the Court can be much clearer than it already has been.
4 comments:
Will the Court, with a new lineup of justices, change the "primary purpose of accusing a targeted individual of a crime" testimonial hearsay test that I proposed on this blog before Williams was decided?
It would appear that Alito & Roberts stick with my primary purpose of accusing a targeted individual test. Thomas sticks with his formality formulation. Kagan, Sotomayor & Gorsuch find a Confrontation Clause violation. So, let's see what Kavanaugh, Barrett & Jackson have to say. My bet: Jackson joins Kagan et al. That leaves Kavanaugh & Barrett holding the deciding votes. But the real battle will be over the rationale -- the "testimonial" test that, hopefully, 5 justices can agree upon.
Just noticed Paul's comments; thanks for commenting once again. I'm inclined to agree with him on the lineup. I'm guessing Kavanaugh and Barrett (a Scalia acolyte and former clerk) go with Kagan et al, but we'll see. Readers of this blog will know that I regard a test in terms of primary purpose, rather than of reasonable anticipation, to be a mistake. And a test requiring a statement to be accusatory, or directed at a targeted individual, would be wholly unjustified and destructive of the confrontation right.
What "test" do you believe 5 justices can agree on in order to determine if hearsay is "testimonial"? What test is most consistent with the original understanding of the scope of the Confrontation Clause?
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