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Substitute expert witness testimony is inadmissible in Arizona drug case, SCOTUS says

The high court said Arizona violated the Confrontation Clause when a witness presented testimonial evidence that was not his during a drug prosecution.

WASHINGTON (CN) — The Supreme Court ruled substitute expert testimony used in an Arizona man’s drug conviction was unconstitutional Friday, finding that his Sixth Amendment rights had been violated.

The justices unanimously strengthened the Confrontation Clause in their decision, further affirming a criminal defendant’s right to cross-examine any expert testimony or evidence that testimony is based on.

“A state may not introduce the testimonial out-of-court statements of a forensic analyst at trial, unless she is unavailable and the defendant has had a prior chance to cross-examine her,” Justice Elena Kagan wrote in the court’s opinion. “Neither may the state introduce those statements through a surrogate analyst who did not participate in their creation. And nothing changes if the surrogates — as in this case — presented the out-of-court statements as the basis for his expert opinion.”

The case centers on expert testimony in the drug trial of an Arizona man, Jason Smith, where a forensic analyst was brought in to testify regarding the results of an analysis of drug paraphernalia tied to Smith.

Prosecutors could not call the analyst who conducted the test, Elizabeth Rast, as she had left the lab before the trial began. Instead, another analyst was called to the stand, Greg Longoni, to testify as an expert using Rast’s work.

Longoni did not conduct the testing himself; he instead used Rast’s notes to testify about her analysis based on her tests.

Kagan noted that the question presented before the court in Smith’s case was one it had previously split on 12 years prior, when the court determined that similar expert testimony did not implicate the Confrontation Clause.

That court, Kagan wrote, narrowly agreed with the lower court’s finding that the absent analyst’s statements were not introduced for the “truth of the matter,” rather to explain the basis of the testifying expert’s opinion.

Kagan explained why the justices came to a different conclusion on Friday. 

“When an expert conveys an absent analyst’s statements in support of his opinion, and the statements provide that support only if true, the the statements come into evidence for their truth,” Kagan wrote. “As this dispute illustrates, that will generally be the case when an expert relays an absent lab analyst’s statement as part of an offering of his opinion.”

In other words, such out-of-court statements are useless to the prosecution if they are not true, and the jury is there to determine whether the expert’s testimony is credible. 

That is the exact reason a defendant should be allowed to challenge the veracity of those statements, Kagan said.

The high court vacated an Arizona Court of Appeals decision that Arizona escaped the Confrontation Clause and remanded the case for further proceedings to determine whether Rast’s analysis were “testimonial,” an issue that was not before the court.

Smith was charged with multiple drug-related offenses after the Yuma County Narcotics Force found drug paraphernalia at his father’s home while he was visiting. Smith maintained that he was only on the property to check on his sick father.

Arizona used expert analysis of the substances found on the property at trial. Rast, the forensic analyst, ran tests on the evidence found at Smith’s father’s home, but she left the crime lab before Smith’s trial started.

The state used another analyst, Longoni, to testify as an expert during the trial using Rast’s work. Longoni did not do any testing himself, instead using Rast’s notes from her tests to testify about her analysis.

A jury wasn’t convinced that Smith’s presence at his father’s home was coincidental and ruled against him. Smith appealed, claiming Longoni’s testimony violated his Sixth Amendment rights. 

At the Supreme Court in January, Smith said Arizona made a strategic choice to make Rast a witness against him but he didn’t get to cross-examine her after.

Justices Clarence Thomas and Neil Gorsuch filed concurring opinions, joining with the court’s judgment in all but its ruling as to whether the analyst’s statements were testimonial.

Thomas wrote that he disagreed with the decision to instruct the Arizona Court of Appeals to determine whether the statements were testimonial by looking to their “primary purpose.” 

Gorsuch wrote that he viewed the question as entirely separate from the case before them, one that should not be addressed. 

Justice Samuel Alito wrote an opinion concurring in the judgement, with whom Chief Justice John Roberts joined, decrying the majority’s decision.

“Today, the court inflicts a needless, unwarranted and crippling wound on modern evidence law,” the George H.W. Bush appointee wrote. “The court proclaims that a prosecution expert will frequently violate the Confrontation Clause when he testifies in strict compliance with the Federal Rules of Evidence and similar modern state rules.”

He warned that experts would now have to express their opinions as responses to hypothetical questions, a practice that garnered widespread condemnation and led to the Federal Rules of Evidence being enacted over 50 years ago.

However, Alito still sided with the court that Longoni had “stepped over the line” by testifying to the truth of the matter and therefore entering inadmissible hearsay into the record and implicating the Confrontation Clause.

“The court should have said that — and stopped there,” Alito said.

Correction: An earlier version of this story misstated the Supreme Court finding. It has been corrected. 

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Categories / Appeals, Criminal, Trials

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