Supreme Court Ducks Main Issue on Crime Lab Testimony

Today the U.S. Supreme Court rendered its opinion in the crime lab testimony case, Smith v. Arizona, No. 22-899. Regrettably, the most important issue remains unanswered. Attorneys and lower courts still do not know if the lab notes taken by the analyst who performed the tests and related as the basis of an expert opinion by a different forensic scientist are “testimonial” so as to make the first analyst a “witness” whom the defendant has a constitutional right to confront.

The case involves lab tests of marijuana and methamphetamine found in the possession of low-level drug dealer Jason Smith. Lab tests performed by Elizabeth Rast indicated that the substances were indeed what they appeared to be. By the time of trial, Ms. Rast no longer worked for the department. Greggory Longoni testified as an expert as to the meaning of the results indicated in Ms. Rast’s notes.

The state court of appeals upheld the testimony on the theory that the notes were not introduced for their truth. That was the theory of the plurality in a fractured 2012 decision of the Supreme Court, Williams v. Illinois, even though a majority in that case (Justice Thomas, concurring on a different ground, plus four dissenters), rejected that argument.

I believe that Justice Thomas was right in Williams. The person who makes an out-of-court statement is not a “witness” for the purpose of the Sixth Amendment unless that statement was testimony (such as actual in-court testimony, a deposition, or an affidavit) or a substitute for it. Otherwise, the admissibility of the statement is a matter of state evidence law, not a constitutional question. That is the basis of CJLF’s amicus brief in this case.

The Supreme Court today simply reversed the state court on its incorrect not-for-truth theory and declined to address the “testimonial” question, leaving it for the state court to consider on remand. We will have to fight this battle yet again in another case.

The situation is reminiscent of Counterman v. Colorado last year. A stalker was convicted by rejecting his free speech claim on the dubious theory that his statements were threats and therefore unprotected. There was a much better basis for rejecting the free speech defense, i.e., that he was being prosecuted for the time, place, and manner and not the content of his prolonged, persistent, harassing communications. But the case was not tried that way or decided that way in the state court of appeals, so we were stuck with a poor precedent that did not answer the most important question, endangering the prosecution of stalkers nationwide until this gets resolved.

On matters like this, it is important that the prosecution not rely on a single, dubious theory when another one is available. Assert them both, folks.