U.S. Supreme Court Takes Up Two Criminal Cases for the New Term

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This morning, the U.S. Supreme Court issued a short orders list taking up twelve cases, two of them criminal, for briefing and argument in the new term. The term begins Monday. Glossip v. Oklahoma, No. 22-7466, in which CJLF co-authored an amicus brief on behalf of the victim’s family and the Oklahoma DA’s Association, is not on the list.

The list is part 1 of the results of the “long conference” last Tuesday. If the Court follows its usual pattern, part 2 will be a long list of denials on Monday. Not all of the cases considered at the conference will be on either list, though. Some will be “relisted” for a second look at a later conference.

Here are the criminal cases taken up:

Smith v. Arizona, No. 22-899, raises an issue on the continuing problem of the Confrontation Clause and forensic analyst testimony. It is a problem because crime lab analysts are often unavailable by the time a case comes to trial. As phrased by counsel for defendant, the Question Presented is:

Whether the Confrontation Clause of the Sixth Amendment permits the prosecution in a criminal trial to present testimony by a substitute expert conveying the testimonial statements of a nontestifying forensic analyst, on the grounds that (a) the testifying expert offers some independent opinion and the analyst’s statements are offered not for their truth but to explain the expert’s opinion, and (b) the defendant did not independently seek to subpoena the analyst.

Or, as phrased by the Arizona AG:

Whether an expert witness’s testimony violated the Confrontation Clause when he reasonably relied, in part, on a former colleague’s notes and analysis from within the same crime lab to reach an independent opinion; the non-testifying expert’s opinion and work-product were not admitted into evidence; and the testifying expert was subject to cross-examination.

McIntosh v. United States, No. 22-7386, presents a question about the timing of forfeiture orders and Federal Rule of Criminal Procedure 32.2. McIntosh also asked the Court to decide if there was a sufficient connection to interstate commerce to justify prosecuting an intrastate robbery case in federal court, but the Court turned that question down.