The US Supreme Court provided narrow guidance on how prosecutors can use forensic analysis in criminal trials, while leaving a persistent problem unresolved.
In a unanimous opinion by Justice Elena Kagan on Friday, the court said forensic analysis that forms the basis of another expert’s opinion could be inadmissible hearsay, unless prosecutors make both experts available at trial.
Kagan said the Confrontation Clause of the Sixth Amendment “protects a defendant’s right of cross-examination by limiting the prosecution’s ability to introduce statements made by people not in the courtroom.”
She noted the importance of the Supreme Court’s 2004 decision in Crawford v. Washington, which was a sea change in Confrontation Clause jurisprudence.
Kagan wrote the court found in Crawford that the clause “bars the admission at trial of an absent witness’s statements—however trustworthy a judge might think them—unless the witness is unavailable and the defendant had a prior chance” for cross examination.
After Crawford, the court ruled the Confrontation Clause applied to forensic reports, Kagan said.
“Those statements, as we have explained, come into evidence for their truth—because only if true can they provide a reason to credit the substitute expert,” Kagan wrote. “So a defendant has the right to cross-examine the person who made them.”
In ruling for Jason Smith, the justices declined to provide guidance on a separate question that’s split the lower courts regarding whether such evidence is “testimonial” within the meaning of Crawford.
Crawford said that hearsay—an out of court statement offered to prove the truth of what’s asserted—is generally inadmissible if it’s “testimonial.” The court in Crawford didn’t define what that meant, and it again declined to clarify it now.
Justices Sonia Sotomayor, Brett Kavanaugh, Amy Coney Barrett, and Ketanji Brown Jackson joined Kagan in full. Justices Clarence Thomas and Neil Gorsuch joined in part. Justice Samuel Alito filed an opinion concurring in the judgment in which Chief Justice John Roberts joined.
Thomas wrote separately that “a question remains whether” statements given by the analyst in Smith’s case “were testimonial.”
He agreed with the court that because lower courts didn’t consider the question, the case should be remanded to the Arizona Court of Appeals to “answer it in the first instance.”
The case is Smith v. Arizona, U.S., No. 22-899.
Continue ReadingTo contact the reporters on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com; Caitlin McLean in Washington at cmclean@bloombergindustry.com
To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com
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