The Supreme Court’s hearing today looks at an important question in criminal law: allowing data to take the place of a human witness’s testimony on the stand. It is a new form of an old constitutional issue.
Wednesday’s hearing: Jason Smith v. Arizona This hearing, the only one of the day, starts at 10 a.m. and is scheduled for one hour.
Background: This wording in the Constitution’s Sixth Amendment seems plain and easily understood: “In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.” That is the so-called “Confrontation Clause.” Under that, the witnesses must be on the stand so that the accusations they make can be tested by the lawyers for the accused, using rigorous questioning on cross-examination.
What if the witnesses are not available, but the prosecution still wants to make use of what they would say? The Supreme Court has been wrestling with that issue for two decades, and has made clear that, when a witness is not available for the trial, anything that they had said outside of court that is the equivalent of testimony is generally barred at the trial.
This understanding grows more complicated, however, when the evidence developed out of court is chemical or scientific in nature (lawyers call that “forensic evidence.” The most common form of that would be reports made at crime laboratories, testing physical evidence – such as the chemical identification of drugs.
Lawyers who defend persons accused of crime are often highly skeptical of that kind of evidence, because experience has shown that it can be a major influence on jurors, yet it is not always reliable, its meaning can be manipulated, or it may lead analysts to flawed conclusions. Thus, defense lawyers argue, it is most important that those who worked on such tests appear at trial, to be tested by cross-examination.
In prior decisions, the Supreme Court has sharply limited prosecutors’ rights to bring into the trial those laboratory reports, if the analyst who did the testing is not available to testify.
Today’s hearing in an Arizona drug case involves a prosecutor’s attempt to put laboratory results before the jury by putting on the stand another scientist, who testifies about what’s in the laboratory analysis done by someone else and offers his own expert perception of the results.
The facts of this case: With a warrant to search for drugs, police and a local drug squad went to a home in Yuma County, Arizona, in December 2019. They detected the aroma of marijuana as they approached a shed on the property. Inside, they found various drugs and drug paraphernalia, and arrested 11 people in the shed.
One of those, Jason Smith, was later charged with multiple drug crimes, convicted and sentenced to four years in prison. The drugs that had been found in the shed were tested at a state crime lab by a forensic scientist, Elizabeth Rast. She prepared a report on her findings. She was scheduled to be a witness at Smith’s trial, but by the time that occurred, she no longer worked for the state.
In her place at the trial, prosecutors summoned another forensic scientist, Greggory Longoni. Appearing as an expert witness, he had not tested any of the drugs personally, but he testified based on Rast’s reports. He then gave it as his expert opinion that the drugs were, as Rast had found, to be illegal narcotics.
After Smith’s conviction, his lawyers appealed in state court, arguing that the prosecutor’s failure to produce Rast at the trial violated his rights under the Confrontation Clause. It was not enough, their appeal contended, that a different scientist testified about her analyses and the crime lab’s procedures. The challenge was rejected.
Smith’s lawyers appealed to the Supreme Court, claiming the violation of his right to confront his accuser. The Biden Administration’s Justice Department has entered the case, urging the Court to send the case back to Arizona’s courts because, it argued, they had not done enough to protect Smith’s rights. But the Department also defended the substitution of a different forensic scientist at the trial, asserting that it is impractical to call every scientist who may have worked on evidence before it can be discussed before the jury.
The questions before the Court: Is it unconstitutional to allow a scientist who did not test criminal evidence to be called as a prosecution witness to testify about what another scientist had found in testing? Does that violate the Sixth Amendment’s Confrontation Clause?
Significance: This case could produce a very important criminal law precedent, on the use of data in place of human witnesses in a trial in which that data is strong evidence of guilt by the accused person.
Forensic evidence is very persuasive to jurors, but also is subject to significant limitations. In a legal brief filed in this case, the Center for Integrity in Forensic Sciences and related groups told the Court: “Forensic evidence is often at the center of criminal prosecutions, but it is well established that forensic evidence can be both powerful and misleading. Like all other sources of evidence, forensic analysts are vulnerable to error, exaggeration, bias, and outright fraud.”
That brief noted that two reports by federal agencies have outlined the potential problems with such evidence. Those problems, the brief said, “include fraud by individuals and laboratories, lack of training, and lack of standards and bias stemming in part from close connection to law enforcement and prosecutors.”
The Justice Department has cautioned the Court that, as evidence is analyzed in crime laboratories, many individuals may be involved at various stages of the processing, and it would be impractical for each and every one of those to be summoned as a witness to be questioned about their findings. The Confrontation Clause, its filing contended, does not reach that far.
At a minimum, this case may produce new guidance from the Court on how trials should be run to reduce the potential harm to constitutional rights from evidence that may have been mishandled in processing it for trial.
The Court will broadcast “live” the audio (no video) of this hearing on its homepage, supremecourt.gov To listen, click on “Live Audio” and follow the prompt when the courtroom scene appears lower on the page. The audio also will be available, under the title of the case, on C-Span TV at this link: cspan.org/supremecourt