Recently the U.S. Supreme Court handed down an opinion providing more guidance on a criminal defendant’s right to confrontation provided by the Sixth Amendment to the U.S. Constitution. Up to this point, the High Court’s case law held the following:

• the Confrontation Clause barred the admission of “testimonial hearsay” unless: (1) the witness was unavailable; and (2) the defendant a prior opportunity to cross-examine the witness.

• testimonial hearsay is an out-of-court statement used to prove the truth of the matter asserted (“hearsay”), and it served an evidentiary purpose (“testimonial”).

• regarding forensic lab reports, the defendant had a Sixth Amendment right to cross-examine the lab analyst who conducted the forensic testing.

But what if the original analyst no longer worked at the lab?

This is what occurred in Smith v. Arizona. The State’s lab analyst who conducted the confirmatory testing on drugs had left the position by the time of the defendant’s trial. so the State called an analyst who relied on the first analyst’s testing to support his own opinions about the identity of the substances. The second analyst did not conduct his own testing on the drugs, however.

The defendant objected to the substitute analyst’s testimony at trial, arguing that his testimony violated the defendant’s constitutional right to confrontation. The State had not shown that the original lab analyst was unavailable to testify and that the defendant had been given an opportunity to cross-examine the analyst. Thus, if the first analyst’s statements in his report, upon which the substitute analyst relied, constituted testimonial hearsay, admission of those statements into evidence was a violation of the defendant’s right to confrontation.

The Court began by considering whether the former analyst’s statements were hearsay. They were clearly out-of-court statements, but were they admitted to show the truth of the matter asserted? The State argued they were not. Rather, they were merely offered to show the basis upon which the new analyst rested his opinions. The Court disagreed. It held that the veracity of the first analyst’s statements were the crux of the reliability of the second analyst’s opinions. The truthfulness of the statements was what made them helpful to the prosecution; otherwise, they would be irrelevant.

But if the State was able to sidestep a Confrontation Clause violation through a “basis of the opinion” exception, it would render the Confrontation Clause practically meaningless. The exception would swallow the whole.

Having held that the first analyst’s statements were hearsay, the Court turned to consider whether the hearsay statements were testimonial (i.e., they served an evidentiary purpose). This the Court believed it could not do on the record it was given in this case, so it remanded the case to the lower court for further proceedings to answer that question.

One other point the High Court made that is of interest to criminal defense practitioners. The State claimed that an evidence rule permitted admission of the first analyst’s statements. This is a common argument made by the State when a defendant raises a constitutional violation. The Court stated in response, “Evidentiary rules, though, do not control the inquiry into whether a statement is admitted for its truth. That inquiry, as just described, marks the scope of a federal constitutional right. And federal constitutional rights are not typically defined — expanded or contracted — by reference to non-constitutional bodies of law like evidence rules.”

For a more detailed discussion of this case, here is The Confrontation Blog’s summary.