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.