The argument in Smith v. Arizona: The Question Presented

 

     I put up a short post on the argument in Smith v. Arizona  right after the case was decided, and intended to present a fuller account soon after that.  Time has gotten away from me, but better late than never.  (And by the way, there were some interesting comments to that short post from a forensic scientist; I just noticed those while preparing this post.  I’ll respond to those on the prior thread.)

     Perhaps the most notable aspect of the argument was how interested the Court was in the question of whether the statements at issue were testimonial, rather than in the question actually presented, whether the statements satisfy the Confrontation Clause because they were introduced in support of the testifying expert’s opinion.  In the end, I doubt that the Court will use this case to revise the standard for what is testimonial, or even that it will determine that the statements at issue here were not testimonial.  And I think it is highly likely that Smith will get a reversal, with the Court holding that the statements should be deemed for Confrontation Clause purposes to have been presented for the truth of what they asserted.  But it is possible that a remand will leave it open for the Arizona courts to consider whether the statements were in fact testimonial.  I’ll comment in this post on the issue actually before the Court.  I’ll then present another post on the question of whether the statements were testimonial and the standards that should be used in determining that.

     The essence of the case is that one lab analyst, Rast, performed tests on certain items and wrote notes and a report stating her findings, but a second witness, Longoni, who had nothing to do with the testing or report, testified to an opinion, on the basis of the facts reported by Rast, that the items contained controlled substances.  The state courts held that the references to Rast’s findings should be deemed to be presented in support of Longoni’s “independent opinion,” and not for the truth of what they asserted, and that therefore there was not a Confrontation Clause problem.

     The problem, though, is that in this case Rast’s statements supported Longoni’s opinion only if they were true.  When a statement is offered to prove the truth of what it asserts, that proposition is most often an intermediate point on the way to some other conclusion, and this is no different; here, the other conclusion (itself an intermediate point on the way to the conclusion of guilt) is Longoni’s opinion.  I think it was quite clear that most of the Court understood this to be so; Justice Jackson was particularly vigorous in pushing the point.  I’m not sure that I could point to a single justice who thought otherwise.

        Justice Alito did say that Hari Santhanam, Smith’s counsel, was going out of his way to “trash” Rule of Evidence 703.  (Federal and Arizona Rule 703 are substantively the same; I’ll just refer generically to Rule 703.) And Alex Samuels, arguing for the state, suggested that a holding in favor of Smith would undermine Rule 703 beyond criminal cases.  These concerns seem to me entirely unfounded.  Rule 703 is very useful in its sphere.  It allows an expert to form an opinion on the basis of otherwise inadmissible information, if it is of a type on which experts in the field reasonably rely, and sometimes it allows the expert to testify to that information.  That’s good.  A holding for Smith would not have any impact on the operation of the rule in civil cases, or in favor of an accused – nor even in favor of a prosecutor so long as it did not result in a testimonial statement being used for the truth of what it asserts.  (For example, an expert could form an opinion as to public attitudes on a given issue on the basis of statements by people in a survey, whether or not those statements would otherwise be admissible.)  But Rule 703, a relatively recent creation, has to be subsidiary to the Confrontation Clause:  It can’t allow a testimonial statement to be presented against an accused for the truth of what it asserts.  And if the statement supports the opinion only if the statement is true, that’s just what is happening.

        Samuels repeatedly emphasized the possibility of giving a limiting instruction, telling the jury not to use the statement for its truth but only in support of the opinion, and the fact that the defense in this case never asked for one.  But a limiting instruction in this context is meaningless:  If the jury is told to use the statement in support of the opinion but not for the truth of what it asserts, then it is being told it may do something that is in fact logically impossible.  Santhanam addressed this point on rebuttal when he said that a limiting instruction is appropriate only when there is a valid use of the evidence, and here there was none.

        A related matter: Samuels said that Arizona law is clear in this situation that Rast’s statements are not admissible for the truth of what they assert.  But remember Lincoln’s line about how many legs a dog has if you call a tail a leg.  Four; calling a tail a leg doesn’t make it a leg.  The state saying that the statement is not being presented for its truth doesn’t make that fact so if that’s the only use the jury could have made of it.  A court protecting the Confrontation Clause cannot be controlled by state pronouncements of this sort.  Santhanam gave a similar, and effective response to a question posed by Justice Alito as to what the result would be if a judge said, “I’m not going to use this for the truth, only in support of the expert’s opinion.”  The judge saying that’s so can’t make it so. 

        Justice Alito also seemed to suggest at one point that Smith’s argument would invalidate hypothetical questions posed to prosecution expert witnesses.  It’s possible that I misunderstood him, but in any event there is no cause for concern with that.  An expert can give testimony of the form, “If factual predicate X is true, then my opinion is Y.”  It is then up to the prosecution to present valid evidence of predicate X.

        As for the state’s repeated characterization of Longoni’s opinion as independent:  It is only independent in the sense that Longoni presumably drew his own conclusions from the facts reported by Rast.  But those facts were essential for the opinion.  I believe that Justice Jackson was driving at much the same point when she asked a long hypothetical – she is a former Breyer clerk, and his successor in more ways than one – that seemed aimed at presenting a situation in which the opinion of the expert testifying live was clearly dependent  on facts provided by the absent expert, but not on the absent expert’s opinion.  Samuels said the result would depend on whether the live expert was adding anything.  But I think that’s plainly wrong.  The question is whether a testimonial statement of the absent expert is being used for the truth of what it asserts, whether as a predicate for the live expert’s opinion or for any other reason.  Also, as I pointed out in my amicus brief, in this case given the facts asserted by Rast the conclusion to which Longoni testified followed pretty much immediately.  I think all the talk of an independent opinion is really a sham.  (I do not mean to be critical at all of Samuels, who I thought did a very good, professional job with a weak case.) 

        Eric Feigin of the Solicitor General’s Office, arguing for the United States as amicus, sought to strike a middle position.  (The fact that the United States was coming in on neither side, rather than in support of the state, as it usually does, was itself noteworthy, as Justice Kagan, a former SG pointedly remarked.)  He strongly intimated, without quite saying, that Smith was entitled to a reversal because Longoni explicitly endorsed statements by Rast.  But he argued that Longoni could have testified to the usual practice, and to the fact that he had no reason to believe anything different was done in this case.  He would then be exposed to cross-examination to emphasize that he knew nothing about the particular case from personal knowledge.  That seems right to me  – the jury can infer that something was done on a particular occasion from the fact that this is how the organization usually does it – but a couple of points.  First, the Chief Justice asked why that type of cross wasn’t sufficient in this case.  I think the answer is that in this case the state presented more – it presented the testimonial statements of an out-of-court witness and effectively asked the jury to believe the truth of those statements. So the fact that Longoni could be cross-examined on what he did or didn’t know is neither here nor there.  Second, if we take the SG’s suggestion, it still does not get the prosecution all the way home.  If the prosecution wants to present machine-generated data and graphs, which presumably are not testimonial in themselves, it would still have to satisfy a chain-of-custody problem.  And this usual-practice approach would not help getting Rast’s statements in.