Smith v. Arizona: Limiting the Admissibility of Substitute Forensic Analyst Testimony Kailyn Stone

Smith v. Arizona: Limiting the Admissibility of Substitute Forensic Analyst Testimony

By: Kailyn Stone*

The Sixth Amendment guarantees criminal defendants the right to confront the witnesses against them.[1] Specifically, it protects a defendant’s right to cross-examine witnesses by limiting the prosecution’s ability to admit statements made by people not physically present at trial.[2] This right presents a unique situation where a substitute expert witness—who did not personally perform or assist with any work on the case—testifies based on the work performed by the original analyst. As a result, state courts around the country have struggled to resolve the competing interests between prosecutors, who seek to present forensic evidence at trial when the original analyst is unavailable, and criminal defendants, who have the right to confront the witnesses against them. On June 21, 2024, the Supreme Court addressed this issue in Smith v. Arizona.

Smith v. Arizona: Facts and Procedural History

In 2021, a grand jury convicted Jason Smith (“Smith”) after Arizona law enforcement officers executed a search warrant and found drugs and a large quantity of “drug-related items” in a shed on his father’s property.[3] Before trial, Analyst Elizabeth Rast (“Rast”) conducted a “full scientific analysis” of the items seized from the shed.[4] Rast found that the substances seized from the shed were illegal drugs.[5] She prepared notes and a signed report, both on a formal letterhead, about the testing.[6]

Because Rast stopped working at the lab before trial, the State asked another forensic expert to provide his independent expert opinion.[7] The substitute expert “prepared for trial by reviewing Rast’s report and notes.”[8] At trial, he conveyed and referred to the substance of Rast’s work, “item by item by item.”[9] Thereafter, he provided his opinion of the testing, coming to the same conclusion as Rast.[10]

Smith appealed, arguing that the State’s use of a substitute expert—who did not personally perform or assist with any testing—violated his Confrontation Clause rights.[11] In other words, Smith argued that he did not have a chance to confront Rast at trial. The Arizona Court of Appeals affirmed Smith’s conviction.[12] Subsequently, the Supreme Court unanimously vacated the lower court’s decision and held that the State may not introduce forensic reports “through a surrogate analyst who did not participate in their creation.”[13] While Smith v. Arizona provided long-awaited clarity regarding the admissibility of substitute expert testimony, the Supreme Court left open the question of whether Rast’s out-of-court statements were testimonial.[14]

The Confrontation Clause and Forensic Testimony

In 1980, the Supreme Court broadly held that hearsay statements satisfy the Confrontation Clause if they have an “adequate indicia of reliability.”[15] Twenty-four years later, the Supreme Court interpreted the Sixth Amendment more narrowly.[16] In Crawford, the Court held that the Confrontation Clause “commands[] not that evidence be reliable, but that reliability be assessed in a particular manner: by testing the crucible of cross-examination.”[17] Put simply, Crawford reasoned that the Sixth Amendment bars the admission at trial of “testimonial statements”[18] of an absent witness unless she is “unavailable to testify, and the defendant ha[s] had a prior opportunity [to] cross-examin[e]” her.[19] The Court later held that this rule applies to testimonial forensic reports.[20]

Some courts have held that substitute analyst testimony is permitted because the use of the non-testifying expert’s report is simply not hearsay when it is used as the basis for the substitute expert’s opinion. Notably, in 2012 the Supreme Court plurality in Williams v. Illinois emphasized that “[o]ut-of-court statements that are related by [an] expert [witness] solely for the purpose of explaining the assumptions on which that opinion rests are not offered for their truth and thus fall outside the scope of the Confrontation Clause.”[21] Thus, the plurality concluded that a substitute expert witness could testify about a test not entered into evidence and performed by a non-testifying analyst without violating the Confrontation Clause. However, several justices rejected this logic, creating widespread confusion among the lower courts.[22]

The Supreme Court’s Departure in Smith

In Smith, the Supreme Court clarified that “[w]hen an expert conveys an absent analyst’s statements in support of his opinion, and the statements provide that support only if true, then the statements come into evidence for their truth.”[23] Further, the Court concluded, “that will generally be the case when an expert relays an absent lab analyst’s statements as part of offering his opinion.”[24] This departure from the plurality in Williams is circular—because the forensic report is being offered in support of the expert’s opinion, the forensic report must be offered for its truth.[25]

Consistent with the dissent in Williams, the Court emphasized, “[t]ruth is everything when it comes to the kind of basis testimony presented here. If an expert for the prosecution conveys an out-of-court statement in support of his opinion, and the statement supports that opinion only if true, then the statement has been offered for the truth of what it asserts. How could it be otherwise?”[26] In other words, the substitute analyst’s opinion in this case depends on the veracity of the report and testing conducted by Rast.

Here, the State used the substitute forensic analyst to relay what Rast said and to testify regarding the standards and tests Rast said she performed. Since the State provided this evidence so the jury would credit it, the evidence was offered for its truth. This analysis remedies a major policy concern for criminal defense lawyers across the country: How can an expert form an “independent opinion” by reading someone else’s report?

Although the defense attorney can cross-examine the substitute analyst, the defense attorney likely cannot discern whether (1) the lab adhered to proper protocols during testing or (2) there were any problems at the lab that could make the testing inaccurate. Rather, the defense attorney is more likely to discern details about the testing and lab protocols by cross-examining the original analyst. Accordingly, the ruling in Smith protects criminal defendants from conviction based on inaccurate or misleading forensic evidence lab results.

What now?

The decision in Smith will impact criminal cases across the country and transform the presentation of forensic evidence at trial. As a result, prosecutors should be aware that out-of-court statements conveyed by a substitute forensic analyst are considered for their truth and are hearsay. Thus, prosecutors should consider alternative approaches to presenting forensic evidence, such as having a substitute expert re-test the evidence if possible.

Whether these statements violate the Confrontation Clause has yet to be resolved as the Supreme Court did not determine if the statements were “testimonial.”[27] Although there are various formulations for determining if a statement is testimonial, the Court endorsed the primary purpose test in Smith.[28] However, this analysis will be fact-specific as it depends on all of the “relevant circumstances” under which the statement was made.[29]

Until a decision is issued on remand, defense attorneys should object on the grounds of hearsay and the Confrontation Clause when the government seeks to use or admit forensic evidence at trial without calling the original analyst who conducted the testing. Even if a judge overrules the objection, it is important to preserve the issue for appeal. Nevertheless, prosecutors, criminal defense attorneys, and appellate lawyers should continue to monitor this case on remand for guidance on the presentation of forensic evidence.

*Candidate for Doctor of Jurisprudence, University of Tennessee College of Law, May 2025.

[1] U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”).

[2] See Crawford v. Washington, 541 U.S. 36, 50 (2004) (“[T]he principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.”).

[3] Smith v. Arizona, 144 S. Ct. 1785, 1795 (2024) (“[Arizona law enforcement officers] also found a large quantity of what appeared to be drugs and drug-related items.”).

[4] Id.

[5] See id. (“After listing the eight items, the report stated that four ‘[c]ontained a usable quantity of methamphetamine,’ three ‘[c]ontained a usable quantity of marijuana,’ and one ‘[c]ontained a usable quantity of cannabis.’”).

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] See id. (“And he did come to the same conclusion [as Rast], in reliance on Rast’s records.”).

[11] Id. at 1788 (“On appeal, he argued that the State’s use of a substitute expert to convey the substance of Rast’s materials violated his Confrontation Clause Rights.”).

[12] State v. Smith, No. 1 CA-CR 21-0451, 2022 WL 2734269, at *4 (Ariz. Ct. App. July 14, 2022) (holding the substitute analyst could constitutionally “present[] his independent expert opinions permissibly based on his review of Rast’s work”), vacated, 602 U.S. 1 (2024).

[13] Smith, 144 S. Ct. at 1802 (citing Bullcoming v. New Mexico, 564 U.S. 647, 663 (2011)).

[14] See id. at 1802 (“To address the additional issue of whether Rast’s records were testimonial (including whether that issue was forfeited), we remand the case for further proceedings not inconsistent with this opinion.”).

[15] Ohio v. Roberts, 448 U.S. 56, 57 (1980) (clarifying that a statement is reliable if it falls within a “firmly rooted hearsay exception” or bears “particularized guarantees of trustworthiness”).

[16] See Crawford, 541 U.S. at 61 (arguing that the Framers did not mean to leave the Sixth Amendment’s protection to “amorphous notions of ‘reliability’”).

[17] Id.

[18] See id. at 51–52 (explaining that multiple formulations of testimonial statements exist); see also Davis v. Washington, 547 U.S. 813, 822 (2006) (Statements are testimonial “when the circumstances objectively indicate that there is no . . . ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”); Michigan v. Bryant, 562 U.S. 344, 358 (2011) (providing that statements made to police “to meet an ongoing emergency” are “not procured with a primary purpose of creating an out-of-court substitute for trial testimony”).

[19] Id. at 53–54.

[20] See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310–11 (2009) (“The [analyst reports] are functionally identical to live, in-court testimony, doing ‘precisely what a witness does on direct examination.’” (quoting Davis, 547 U.S. at 830)).

[21] Williams v. Illinois, 567 U.S. 50, 58 (2012).

[22] See id. at 127 (Kagan, J., dissenting) (“[A]dmission of the out-of-court statement in this context has no purpose separate from its truth; the factfinder can do nothing with it except assess its truth and so the credibility of the conclusion it serves to buttress.”).

[23] Smith, 144 S. Ct. at 1791.

[24] Id.

[25] See id. at 1798 (noting that the purpose of the prosecutor eliciting such a statement is to establish a basis for the jury to credit the testifying expert’s opinion).

[26] Id.

[27] Id. at 1801 (“The question presented in Smith’s petition for certiorari did not ask whether Rast’s statements were testimonial.”).

[28] See id. (The testimonial issue, “this Court has stated, focuses on the ‘primary purpose’ of the statement, and in particular on how it relates to a future criminal proceeding.”).

[29] Id. (“A court must therefore identify the out-of-court statement introduced, and must determine, given all the ‘relevant circumstances,’ the principal reason it was made.” (quoting Bryant, 562 U.S. at 369)).