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.