Smith v. Arizona: Were the statements testimonial?

              In a prior post, I have analyzed the justices’ treatment of the questions presented in the petition in Smith v. Arizona.  Lurking in the case was the issue of whether the statements at issue were testimonial.  Although the state seemed to have conceded the issue, it drew some attention in the briefs, a great deal of attention at argument, and some discussion in the majority opinion and in two concurrences.  So here are a few thoughts.

1. The Court properly declined to resolve the issue; it was not part of the questions presented, and, as the Court noted, it may have been forfeited.  Indeed, the Court need not have said anything at all on the issue, and I think that would have been the better course.  And so does Justice Gorsuch.  In declining to join Part III of the Court’s opinion, the portion that addressed this issue, he emphasized that this issue was a separate one from the main issue of the case and “in no way necessary to the resolution” of the case.  Nevertheless, Justice Kagan, speaking for a bare majority of the Court, offered “a few thoughts . . . about the questions the state court might usefully address if the testimonial issue remains live.”  Oh well.

              2. The Court, not surprisingly but rather casually, once again endorsed the “primary purpose” test.  And so Justice Thomas, also not surprisingly, declined to join in Part III, and instead repeated his frequently stated views on the matter.  This time around, he used both “formality” and “solemnity,” as he has at times in the past; he also repeated the qualification that the Confrontation Clause “reaches the use of technically informal statements when used to evade the formalized process.”  As I have also stated, I wish he would drop the use of “formality”, which I think is unduly limiting and confuses matters; ”solemnity,” properly interpreted, has more promise.  Interestingly, though Justice Kavanaugh asked repeatedly about Justice Thomas’s approach at argument, he said nothing about it here.

3. What was surprising was Justice Gorsuch’s concurrence, because it not only questioned the merits of the “primary purpose” test but seemed to treat it as a new trial balloon – at one point referring to it as “the Court’s proposed ‘primary purpose’ test” – as opposed to doctrine that the Court articulated in 2006 and has applied at least fairly regularly ever since.  (And the potential sources of confusion that he suggests, the question of whose purpose should be decisive and how we determine what purpose is primary, have been much discussed since then.) Well, if in a future case Justice Gorsuch can get the Court to rethink the test, that might be all to the good, especially given that in his view the test “may be a limitation of our own creation on the confrontation right.”  One of the possible tests that he suggests for what is testimonial, a statement that relates a factual assertion or discloses information, strikes me as way too broad.  The other potential approach he offers, treating a witness as any person who gives or furnishes evidence, seems to me to be much closer to the mark, if we modify it by adding the modifier “knowingly.”

              4. The Court noted that (assuming they reach the question of whether testimonial statements are in issue) the Arizona courts will have to resolve which statements are actually in issue.  The state contends that Longoni was relying only on Rast’s notes; Smith contended that he relied on Rast’s report as well as on her notes, and treated them essentially as a unit.  In my view, it should not make a difference, and the Court did not say that it would.  But for reasons I’ll discuss now, it might, and the Court pointed to that possibility.

              5. The Court said that in determining primary purpose, the courts should “consider the range of recordkeeping activities that lab analysts engage in.” Some records, it said, “will not have an evidentiary purpose.” Two such possibilities that it mentioned – “that lab records may come into being primarily to comply with la­boratory accreditation requirements or to facilitate internal review and quality control” – do not seem particularly troublesome (but see below!), at least for now.  But the third does: The Court says that “some analysts’ notes may be written simply as reminders to self.”  And in all these cases, the Court asserts, “the record would not count as testimonial”; for that, it added, “the document’s primary purpose must have ‘a focus on court.’” So a couple of things.

                           a. The “focus on court” language is taken from the oral argument. Eric Feigin, arguing for the U.S. as amicus (which, unusually in criminal cases, did not side with the state) said, “I think something that is created for an investigatory purpose, as opposed to with a focus on court, may well be – not be testimonial.” Such a hesitant, qualified statement at argument is an awfully thin basis on which to rest an assertion of principle.  I also think it’s wrong.  If a statement is made to assist in investigation, with the anticipation that it will help prosecution, that should be enough – especially in an era in which the vast majority of cases never get to trial.

                           b. The idea that the prosecution can avoid the Confrontation Clause by characterizing notes written by a lab analyst, who is knowingly working on a case for prosecution, as “reminders to self” raises considerable difficulties.  So maybe we are about to enter a period in which lab analysts will generate notes that  they will characterize as – and perhaps even title – “reminders to self.” (And perhaps they will not even write formalized reports, because they don’t need them.) If the case goes to trial and the analyst testifies there, she can rely on these notes, and presumably they would be admissible.  And if the author of the notes doesn’t appear at trial, the prosecution would present another analyst, who would offer to testify to similar conclusions on the basis of the notes.  Gee, it would say, these were written for personal use, so they’re not testimonial, but we happen to have them, and nothing in the Confrontation Clause stops the in-court witness from relying on them.  So then what’s left of Melendez-Diaz in effect?

         And maybe it’s even worse than that.  In response to my prior post, Jacob Berlove says the decision in Smith will not make any difference because a majority of the Court will happily jump on the “quality control” and “laboratory accreditation requirements” evasions.  I am reluctant to disagree with Melech – the King, who has been labeled the best Supreme Court predictor in the world – so I have to acknowledge that this is at least a possibility.  But I suspect the courts will find the “reminders to self” evasion a little easier to use.  As Jacob suggests, the answer is to make the test depend on anticipation of likely use (and I’d say in prosecution, not at trial), and to do away with the primary-purpose test.  Perhaps if we see a flood of cases involving notes that courts admit as evidence while maintaining that they were written for some other purpose, the Court will see that its approach is not working and is just an invitation to a sham.  But we may have to wait a while.

Smith v. Arizona: The Supreme Court decisively rejects the “in support of the opinion” end run

 

                The Supreme Court decided Smith v. Arizona on Friday.  On the whole, it was a very good decision.  The Court reversed unanimously, with seven justices, all but the Chief Justice and Justice Alito, signing on to the principal parts of Justice Kagan’s opinion for the majority.  On the principal question presented, whether the prosecution can avoid the Confrontation Clause on the ground that a statement is offered in support of an expert opinion, even though the statement supports the opinion only if it is true, that opinion was emphatic and clear: The answer is no.

This post will analyze the justices’ treatment of that question; I will later put up another post addressing their treatment of another question that was not presented by the petition but that gained a great deal of attention at argument, whether the statements in question were testimonial.  Throughout this post I’ll assume that they were indeed testimonial (as I believe they were).

(An aside:  I say “principal question” because the petition also raised the question of whether Smith’s failure to subpoena Rast made any difference for Confrontation Clause analysis.  The petition presented this question because the Arizona appellate court noted that Smith “could have called [Rast] to the stand and questioned her, but he chose not to do so.”  But the Court devoted only one footnote to this question because, as it noted, the state rightly did not defend this rationale.  Melendez-Diaz v.Massachusetts made clear that the defendant’s right to subpoena a witness does not satisfy the confrontation right.)

                Smith was accused of drug-possession crimes.  To prove that the substances in question were illicit drugs, the prosecution relied on the testimony of a lab analyst, Longoni.  But Longoni did not do any testing himself; instead, he based his opinion on statements made by another lab analyst, Rast.  For reasons that were never explained, Rast was no longer employed by the lab at the time of trial, and the state did not attempt to secure her live testimony.  The state argued that, to the extent Rast’s statements were presented to the jury, they were not presented for the truth of matters they asserted, but rather in support of Longoni’s “independent” opinion.  The Arizona courts accepted this argument, even though Rast’s statements would provide no support for Longoni’s opinion unless they were true. But five justices had rejected that theory in Williams v. Illinois; that did not fully resolve the matter, though, because four of those five were in the minority, Justice Thomas joining the other four in concluding (on different grounds from those four) that the lab report there was not testimonial.  So the principal question on which the Smith Court granted cert was whether that was a valid argument. 

                We can assume that, strictly as a matter of modern rules of evidence, Longoni’s testimony would be admissible, under FRE 703 or its state counterparts, or at least would be given a proper foundation. (Arizona has a rule substantively identical to FRE 703.)  But, Justice Kagan noted, “Evidentiary rules . . . do not control the inquiry into whether a statement is admitted for its truth,” because that inquiry “marks the scope of a federal constitutional right.”   (Of course, the same inquiry also is crucial in implementing hearsay law, but she was focusing on the confrontation right.) And “federal constitutional rights are not typically defined . . . by reference to non-constitutional bodies of law like evidence rules.” The “not typically,” she explained in a footnote, was to take into account one qualification: “If an evidentiary rule reflects a long-established understanding, then it might shed light on the meaning of the Confrontation Clause.” But that could not be so here, because Rule 703 “is a product of the late 20^th-century, and was understood from the start to depart from past practice.” (This done with a citation to my amicus brief, which only encourages me to keep on submitting them.)

                So, were Rast’s statements presented for their truth?  Justice Kagan – properly, I think – found this a very easy question:

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?

Put another way, she said, the truth of the basis testimony (here Rast’s statements, the basis for Longoni’s opinions) is what makes it useful to the prosecution, because “that is what supplies the predicate for – and thus gives value to – the state expert’s opinion.”  And looked at from another perspective, if the jurors believe the basis evidence to be true, that will lead them to give more credit to the in-court expert’s opinion, and if they believe it false, it will do the opposite.  Thus – a critical passage quoting Justice Thomas’s separate opinion in Williams – “'[t]here is no meaningful distinction between disclosing an out-of-court statement’ to ‘explain an expert’s opinion’ and ‘disclosing that statement for its truth.’” Whatever “label” the state uses,  “in all respects the two purposes merge.”

                The Court then took some of the facts of the case as an “almost-too-perfect illustration” of the general principles it had articulated. Longoni’s entire testimony was predicated on Rast’s findings. If those findings were false, Longoni’s opinion “would have counted for nothing.” Longoni was effectively “Rast’s mouthpiece.” 

                Further, if the practice in this case were approved, it would “allow for easy evasion of the Confrontation Clause,” making Melendez-Diaz and Bullcoming v. New Mexico “a dead letter”: “[E]very testimonial lab report could come into evidence through any trained surrogate, however remote from the case.”

                The Court noted that its decision did not deny experts like Longoni any useful role at trial.  They could testify in general about forensic guidelines and techniques.  If the expert worked in the particular lab, as Longoni did, they could testify from personal knowledge about how that lab operates, including how it maintains chains of custody.  And the expert could be asked hypothetical questions, as to what conclusions followed assuming a given predicate.  Justice Alito jumped on this last possibility, as discussed below.  I believe the Court’s catalog of possibilities, which it did not contend was necessarily exclusive, was completely accurate.  But note – what presumably set Justice Alito off – none of the possibilities appear to allow the prosecution to prove lab results in a particular case without presenting testimony subject to confrontation of an analyst who observed the key case-specific facts.  And that is as it should be.

                So that was clear and straightforward and really excellent.  I’ll raise one sort-of nit.  The Court refers a couple of times (as it has before) to “testimonial hearsay” as being at the core of the Confrontation Clause.  I wish the Court would avoid that phrase, because it tends to minimize the separation between the confrontation right and hearsay doctrine, and that separation was crucial to Crawford.  (Justice Alito’s opinion says that the majority opinion takes the view that “basis testimony is always hearsay,” and that he would remand because Longoni’s testimony “is hearsay under any mainstream conception.”) I understand the temptation – for there to be a Confrontation Clause violation, there has to be a statement that was made out of court and that is offered for the truth of a matter that it asserts, and that’s the basic definition of hearsay.  But that just suggests that the two doctrines have an overlapping area of concern.  If there is a Confrontation Clause violation, it is not because the statement would be deemed to be hearsay – and if a statement avoids exclusion under the hearsay rule, that says nothing about its standing under the Confrontation Clause.

                And now let’s consider Justice Alito’s opinion.  He begins by saying that “the Court inflicts a needless, unwarranted, and crippling wound on modern evidence law.”  Wow! What is that wound?  Well, at considerable length he shows that the presentation of expert testimony in traditional common law was largely dependent on hypothetical questions, and these created significant problems.  So along came Rule 703, and it “replaced” hypotheticals.  And now the Court has “disinterred that procedural monstrosity,” in an “assault on modern evidence law.”

                OK, let’s first bear in mind that it’s just one rule, not all of modern evidence law that’s affected.  And it’s only the implementation of that rule with respect to some prosecution evidence that’s affected:  Evidence in civil trials, or evidence presented by a criminal defendant, has nothing to do with this case, and even with respect to prosecution evidence this decision will have no effect at all if the statement at issue is not testimonial. (Think of a routine blood test taken without any indication that it is for evidentiary purposes, perhaps even before the crime is committed.  And also note that if the in-court expert’s opinion doesn’t depend on the truth of the statement, neither Rule 703 nor the Confrontation Clause comes into play.)  And Rule 703 did not do away with hypotheticals; indeed, the Advisory Committee Note explicitly refers to hypothetical as continuing to be one way of presenting expert evidence.  Putting aside the Confrontation Clause for the moment, it did not even do away in all circumstances with the need to ask a hypothetical question, because the predicate for operation of Rule 703, that experts in the field would rely on the particular type of facts or data in forming an opinion on the subject, will not always be satisfied.  (Note also the Advisory Committee Note to Rule 705, which says that the instances in which counsel is required to make prior disclosure of the facts or data underlying an opinion “are reduced.” 

                What Smith holds is that if (1) a prosecutor seeks to introduce an in-court witness’s opinion, and (2) that witness did not observe the facts supporting the opinion, and (3) the factual basis supporting the opinion is contained in an out-of-court testimonial statement, and (4) that statement supports the opinion only if it is true, and (5) the in-court witness testifies to the substance of that statement but (6) the author of the statement does not testify in court, then there is a Confrontation Clause violation (absent forfeiture, we might add).  That is hardly an assault on modern evidence law.  Nor does it constitute a “trashing” of Rule 703, as Justice Alito suggested at oral argument.  Now, it is true that if there were no Confrontation Clause, Rule 703 would presumably allow the evidence even in this situation.  But so what?  Rule 703 is not only a latter-day creation; it was written at a time when there was no clear conception of what the Confrontation Clause meant, so it is not surprising that it did not take the Clause into account.  And as the Court indicates, and Justice Alito does not deny, the Constitution trumps evidentiary rules, not the other way around.

                But then, eager though Justice Alito is to protect application of Rule 703, how did he get around the Confrontation Clause?  Well, he says, under Rule 703, the evidence is admissible only to support the opinion, and on request the trial judge must instruct the jury to consider it only for that purpose, not for the truth.  So there’s no Confrontation Clause violation; we presume jurors will follow instructions.

                The problem, which he ignores altogether, is that such an instruction makes no sense at all, for a reason indicated by the majority’s quotation from Justice Thomas’s Williams opinion – if the statement supports the opinion only if true, there is “no meaningful distinction” between admitting the statement for its truth and admitting it in support of the opinion.  (Justice Alito overstates the case when he says that “the Court seems to think that all basis testimony is necessarily offered for its truth.”)  This is not a matter of distrusting the jury; it’s a matter of simple logic.  If we instructed the jurors to stand with both feet on the ground while one foot is in the air, it would not be incompetence of the jurors that would prevent them from complying.

                But after all that, Justice Alito still concluded that the trial court erred.  He equates the requirements of the Confrontation Clause in this area (apart from the question of whether the statement in question is testimonial) with those of the Federal Rules of Evidence – a false conjunction, as I have indicated – and says that Longoni could have disclosed the information in Rast’s statements, if, under Rule 703, the court found that the probative value of that information substantially outweighed its prejudicial potential.  “But,” he then said,

he could not testify that any of the information in the report was correct—for instance, that Rast actually performed the tests she recorded or that she did so correctly. Nor could he testify that the items she tested were the ones seized from Smith. Longoni did not have personal knowledge of any of these facts, and it is unclear what “reliable” scientific “methods” could lead him to intuit their truth from Rast’s records. Fed. Rule Evid. 702(c) (defining a permissible expert opinion).

And in this case, Justice Alito says, he agrees with the Court that Longoni “stepped over the line and at times testified to the truth of the matter asserted,” because at times he asserted as true various assertions made by Rast, such as the methods as procedures she followed, the tests she performed, and the results she got.   

Wow again.  First, let’s not slide over what strikes me as a rather large irony.  I have always thought – and I hope readers will correct me if they think I’m wrong – that given certain findings (that the in-court expert is making the type of reasonable reliance on an outside statement that experts in the field make, and that the probative value of the statement outweighs the prejudicial effect) Rule 703 does in fact allow the in-court witness to testify to the truth of that statement, the hearsay rule notwithstanding.  That is why the Rule says that if the reasonable-reliance predicate is satisfied, the underlying facts or data “need not be admissible,” and why Rule 703 is sometimes thought of as an extra hearsay exception.  I suppose one could say that the witness would be allowed to testify, “I relied on this statement, but I’m not saying it is true.”  But what sense does that make?  Unless it’s believed to be true, it provides no support for the opinion.  So is that the type of testimony Justice Alito wants experts to give under Rule 703?  And if so, who is undercutting the usefulness of that Rule, not only when prosecutors attempt to use it to get in testimonial evidence, but across the board?

Second, how far apart in the end is Justice Alito from the majority?  He says that Longoni’s testimony was improper, because in trying to support his opinion he really was testifying to the truth of statements made by the absent Rast.  Gee, sounds a fair amount like the majority.  So I wonder just what is it he thinks Longoni should have been able to do that the majority doesn’t?  Perhaps readers can enlighten me.

A related question:  What if, as Rules 703 and 705 allow, Longoni just testifies to an opinion, without disclosing the underlying statements.  Would the Confrontation Clause tolerate that?  I think it’s clear that under Rules 703 and 705 the defense should be allowed to ask what the basis for the testimony is – and that as soon as the witness discloses the basis we are back in the same position.

In the end, I wonder to what extent Justice Alito and for that matter the Chief Justice too, were motivated by the fact that they appear to have lost this part of the battle.  They were part of a foursome in Melendez-Diaz, Bullcoming, and Williams, and by picking up Justice Thomas’s vote in Williams they were able to get the result they wanted.  But four members of the Court have since left, two from the Melendez-Diaz majority and two from the minority, and all four junior justices joined the Smith majority (on the Melendez-Diaz majority side, Justice Gorsuch for Justice Scalia and Justice Barrett for Justice Ginsburg, and on the minority side Justice Kavanaugh for Justice Kennedy and Justice Jackson for Justice Breyer).  So Justice Alito can snarl all he wants, but on this issue at least he now speaks for only two justices.