High court takes issue with substitute expert testimony in Arizona drug case

The majority of Supreme Court justices took issue on Wednesday with
substitute expert testimony presented in an Arizona man’s drug
conviction, signaling a narrow ruling finding his Sixth Amendment rights
had been violated. 

“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 Neil Gorsuch said. 

Arizona charged Jason Smith with
multiple drug-related offenses. Smith was at his father’s home when Yuma
County Narcotics Force officers arrived to search the premises. In a
shed on the property, officers found what they suspected was marijuana,
cannabis wax, methamphetamine and drug paraphernalia. 

During his
trial, Smith maintained that he was only on the property to check on his
sick father, who died before the trial started.

Arizona’s case
against Smith included an expert analysis of the substances found on the
property; however, the expert who testified against Smith was not the
same expert who analyzed the evidence. 

Forensic analyst Elizabeth
Rast conducted the tests on evidence found at Smith’s father’s home.
However, by the time of Smith’s trial, Rast had left the crime lab.
Arizona asked another analyst, Greg Longoni, to be a substitute expert
for Rast during the trial. 

Longoni testified about the crime lab
standards and procedures that Rast conducted, including referring to
Rast’s notes about her analysis. Longoni did not conduct any of the
testing described in the testimony himself. 

A jury ruled against
Smith, unconvinced that his presence at the home was purely
coincidental. Smith appealed the ruling, claiming his Sixth Amendment
rights were violated by Longoni’s testimony. He argues that not being
able to cross-examine the analyst who conducted the drug testing denied
him his confrontation clause right to be confronted by the witness
against him. 

“The state here made a strategic choice to make Rast
a witness against Smith, and in doing so, it elicited Rast’s statements
from Longoni,” Hari Santhanam, an attorney with Perkins Coie
representing Smith, said. “When it did so, it was required to present
Rast for cross-examination. Its failure to do so violated Smith’s
confrontation right.” 

There seemed to be broad agreement during
the 90-minute oral argument session that Longoni presented testimonial
evidence from Rast in violation of the confrontation clause. 

“Once
you just give someone else’s testimony and it is the only basis for
your opinion, then it’s really you being a conduit,” Justice Sonia
Sotomayor said. 

While the justices seemed to agree that Longoni’s
testimony violated the Sixth Amendment, there was disagreement on where
the line should be drawn. 

For Gorsuch, the limit was any analysis of findings that were not his own. 

“It’s
either personal knowledge, an industry standard, or a hypothetical
would be all OK,” the Trump appointee said. “The line is saying, I am
sitting here telling you what Ms. Rast did for the truth of that?” 

Much
of that debate centered around Rast’s notes. Justice Amy Coney Barrett
tried to create a distinction between general notes and what’s included
in an affidavit. Justice Elena Kagan said the qualification of the notes
would depend on the facts. 

“It must depend on the facts as to
whether the notes are sufficiently closely tied to the report to fall
within the same umbrella or not,” the Obama appointee said. “I mean,
there are some notes that wouldn’t and some notes that would.” 

Justice Clarence Thomas’ prior writing on the topic was suggested by multiple justices as a test for these cases. In Williams v. Illinois,
Thomas upheld a conviction, finding that the statements were offered
for their truth and that the confrontation clause only barred formal
testimonial statements. 

“Why shouldn’t we adopt the test that Justice Thomas has been advocating in his opinions since White?” Justice Brett Kavanaugh said. 

Arizona
tried to convince the court to rule in its favor by suggesting a ruling
for Smith would greatly expand the reach of the confrontation clause. 

“Petitioner
encourages the court to look well beyond the unique facts of this case,
and he sets his sights instead on a far-reaching new rule without any
real workable limiting principle,” the state’s principal Deputy
Solicitor General Alexander Samuels said. “We don’t think the
confrontation clause requires the anomalous results that would result
from petitioner’s rule.”