Labs, Experts, and the Confrontation Clause

The U.S. Supreme Court today heard oral argument in the case of Smith v. Arizona, No. 22-899. Docket is here. Audio and transcript are here.

It has been 20 years since the high court overhauled its approach to the Sixth Amendment right to confront witnesses in Crawford v. Washington, and this is the fourth time it has addressed the application of that approach to expert testimony about lab results without the technician who did the tests being present and available for cross-examination.

Under Federal Rule of Evidence 703 and equivalent rules adopted in most states, an expert can give an opinion based on facts that would not otherwise be admissible in evidence if they are facts that would normally be relied on by experts in that field. How that squares with the Sixth Amendment has not yet been made clear.

On the previous outing, Williams v. Illinois, a majority agreed that the testimony was proper but disagreed as to why. The plurality held that on the facts of the case the additional information was not being introduced for its truth but only to set up the question about whether two DNA samples matched. Justice Thomas did not agree with that holding, but he believed that the report of the outside lab was not “testimonial” so as to render its author a “witness” within the meaning of the Sixth Amendment. Under the Crawford line, if a prior statement is not “testimonial” its admissibility is governed by the state rules of evidence, not the federal Sixth Amendment.

In this case, the person who did the chemical testing no longer works for the state crime lab. A different expert opined that the test results showed that the substances tested were cannabis and methamphetamine, relying on lab notes and printouts from the gas chromatograph/mass spectrometer.

CJLF’s brief in this case focused on the “testimonial” aspect of the evidence in question, as we believe that is the stronger basis for the admissibility of the expert’s testimony. During the argument, the justices who tend to lean toward defendants claimed that the state had forfeited this argument by not raising it sufficiently in the lower courts or in its opposition to the petition for certiorari.

I believe that the Court’s precedents to date have painted with too broad a brush on what kinds of prior statements qualify as “testimonial.” Crawford was supposed to be based on the original understanding of the confrontation right, but its rule cannot be reconciled with the clear understanding in the founding era that the admissibility of dying declarations did not raise a confrontation clause issue at all. Justice Scalia, as great a proponent of originalism as he was generally, was way out in left field on this issue. He and Justice Thomas were miles apart by the end. Even if the Court does not go as far in the other direction as Justice Thomas would have it, some narrowing is in order, and several of the justices were interested in this aspect.

We will have to wait and see if the Court addresses the “testimonial” aspect of the case at all, and if so what it does with it.