Justices Toy With New Testimony Rule In Ariz. Expert Dispute

By Katie Buehler | January 10, 2024, 4:58 PM EST ·

The U.S. Supreme Court seemed to agree Wednesday that Arizona prosecutors violated a criminal defendant's Sixth Amendment right to confront witnesses testifying against him by presenting a substitute expert witness at trial, and instead centered most of its questions on whether the court should revise its rule for identifying testimonial statements.

Justice Elena Kagan expressed what appeared to be the majority's inclination that Jason Smith's state court drug possession conviction should be overturned. During oral arguments, she read portions of the trial transcript, noting that the state's substitute expert witness frequently answered prosecutors' questions by relaying information that a non-testifying witness had written in a forensic report and accompanying notes.

The substitute witness states "the exact same conclusions in the exact same words after using the notes," Justice Kagan said, altering what Arizona prosecutors contended was the basis for an expert opinion into improper conduit testimony that likely deprived Smith of his constitutional right to confront witnesses.

Alexander Samuels of the Arizona Solicitor General's Office argued that the substitute witness did not read the report as his testimony, but rather used similar words that are standard language used by forensic analysts.

"If you look at his actual testimony, he's asked specifically if he can form an independent opinion," Samuels said. "I don't think he would have said, 'Yes,' to that question if he couldn't form it from, for example, the graphs, which he specifically says he looked at."

"But we don't have to just accept his word for it, right?" Justice Ketanji Brown Jackson replied. The case-specific facts will show whether the substitute witnesses' testimony was his own independent opinion, she added.

No justices asked questions that hinted they would be in favor of affirming Smith's conviction, although Justice Samuel Alito did say Smith's defense counsel made "mind-boggling" mistakes, including a failure to ask the judge to instruct jurors not to consider the substitute witnesses' statements as fact.

Instead, the high court seemed preoccupied with a broader question Smith had posed in his petition for review.

Smith had requested that the Supreme Court clarify its 4-1-4 decision in Williams v. Illinois from 2012, which found that statements are not testimonial and don't trigger a defendant's confrontation right if they were not prepared primarily to accuse a targeted individual.

He argued that the Arizona Court of Appeals in July 2022 incorrectly interpreted the Williams decision to find Smith's Sixth Amendment rights had not been violated in his drug possession case, he argued, and the Supreme Court needed to address that misinterpretation.

At prosecutors' request, forensic analyst Elizabeth Rast conducted tests and wrote a report that identified the substances in Smith's possession at the time of his arrest as methamphetamine and cannabis. But by the time Smith's case went to trial, Rast no longer worked for the Arizona Department of Public Safety.

Prosecutors decided that in Rast's place, they would call one of her former colleagues, Gregory Longoni, to testify about her findings. Longoni did not rerun Rast's tests or conduct any quality assessment on them before testifying, Smith claims.

Under the Williams decision, Rast's report and its accompanying notes are considered testimony, and prosecutors were required to call Rast to the stand as a witness that Smith could confront, Smith's attorney, Hari Santhanam of Perkins Coie LLP, argued at oral arguments Wednesday.

"Any reasonable, objective person would understand that they were prepared for the primary and, indeed, sole, exclusive purpose of creating evidence for Smith's prosecution," Santhanam said.

Justice Amy Coney Barrett suggested that Santhanam's proposed reading of the Williams decision would stretch too far and encompass any type of document relied on in witness reports and testimony.

She asked Santhanam whether a police officer's personal notes from a crime scene that he took to later write up an official report would qualify as testimonial evidence.

"Everything in an investigation is done for the purpose of establishing a case against a defendant," Justice Barrett said.

Santhanam said he believed the officer's notes would be testimonial because the officer went to the crime scene for the primary purpose of recording observations to later include in an official report.

Justice Kagan interjected with the caveat that whether something is testimonial evidence is fact- and case-specific, and Santhanam agreed.

Eric J. Feigin of the U.S. Solicitor General's Office, who argued in favor of overturning Smith's conviction but against a broad rewrite of the court's testimony rule, told Justice Barrett later during oral arguments that the relevance of the hypothetical officer's notes to the final report would also be a factor in deciding whether they were testimonial evidence.

Justice Brett Kavanaugh suggested the court could adopt the test Justice Clarence Thomas suggested in his concurring opinion in Williams, which would require testimonial statements to have "sufficient formality" or to be "indicia of solemnity."

But Santhanam said Justice Thomas' test was too narrow. Rast's notes would qualify under the justice's proposed test because they were written on government letterhead and signed, but that would not always be the case, he said.

"It certainly would draw brighter lines," Santhanam said. "But, at the end of the day, it strikes too narrowly for the protections that are intended by the Sixth Amendment's confrontation clause."

When Justice Kavanaugh asked Feigin a similar question, the deputy solicitor general said the government had no opposition to the court adopting Justice Thomas' test.

Arizona's Samuels maintained that no matter the test, Rast's report and notes did not qualify as testimonial evidence because they had not been prepared as substitutes for trial testimony, they were insufficiently formal, and they were not presented as truth. Arizona law states that evidence offered to support an expert's opinion "is not and cannot be offered for the truth of the matter asserted," Samuels said.

Justices Alito and Jackson challenged that statement, saying that if the base evidence of an expert opinion is untrue, then the opinion is valueless.

Samuels countered that there was independent evidence presented at trial that the jury could use to determine whether they should credit substitute witness Longino's testimony, but when pressed by the justices to point to that independent evidence, Samuels could not.

Justice Neil Gorsuch said if Longino had testified based on assumptions, hypotheticals or assumed industry standards, then his testimony would be fine, as long as prosecutors later proved that those standard had been followed. That did not happen in Smith's case, he said.

"I get that there are many ways to skin the evidentiary cat, but this case just seems to fall on the wrong line of it," Justice Gorsuch said.

Smith is represented by Hari Santhanam, Michael R. Huston, Diane M. Johnsen, Victoria Romine and Jonathan Tietz of Perkins Coie LLP and Robert Trebilcock of the Yuma County Public Defender's Office.

Arizona is represented by Alexander Samuels and Deborah Celeste Kinney of the Arizona Attorney General's Office.

The federal government is represented by Eric J. Feigin of the U.S. Solicitor General's Office.

The case is Smith v. Arizona, case number 22-899, in the Supreme Court of the United States.

--Editing by Peter Rozovsky.

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