By Sam Curry.
In late September 2023, the Supreme Court granted review in a criminal case originating in Yuma, AZ. The case implicates the Confrontation Clause of the Sixth Amendment, which gives criminal defendants the right to cross-examine witnesses who make “testimonial” statements against them. This area of law has often been riddled with uncertainty, but particularly so in the last decade after the Supreme Court’s 2012 decision in Williams v. Illinois.
The Confrontation Clause—Where We Are
In 1980, the Supreme Court gave a relatively relaxed interpretation of the Sixth Amendment in Ohio v. Roberts, holding that hearsay statements satisfied the Confrontation Clause so long as they had sufficient indicia of reliability. Twenty-four years later in Crawford v. Washington, the Court gave a much stricter reading: A criminal defendant’s “right to be confronted with the witnesses against him” meant the right to test witnesses in the “crucible of cross-examination.” Therefore, “testimonial” statements against the defendant, even if they were reliable, would be excluded under the Sixth Amendment if the defendant had no opportunity to cross-examine the declarant. The Crawford opinion offered several formulations for what constituted a testimonial statement, including a “solemn declaration or affirmation made for the purpose of establishing or proving some fact” and a statement “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”
Many cases following Crawford attempted to hone the definition of a testimonial statement, but the latest and most-confusing piece of the Confrontation Clause puzzle comes from the Supreme Court’s 2012 opinion in Williams v. Illinois. In that case, four Justices held, in a plurality opinion, that a DNA report was not testimonial because it did not have “the primary purpose of accusing a targeted individual of engaging in criminal conduct.” Justice Clarence Thomas, in a concurring opinion, agreed that the statement was not testimonial but only because it lacked the requisite “formality and solemnity” of a testimonial statement. The dissent found that the report was testimonial because it was “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial”—one of the definitions offered by Crawford and subsequent cases that applied Crawford. This disagreement has yet to be definitively resolved by the Supreme Court and has created confusion in the lower courts about which standard applies in determining whether a statement is testimonial.
Further, and more at the heart of the argument in Smith v. Arizona, the plurality in Williams stated that “[o]ut-of-court statements that are related by [an expert witness] solely for the purpose of explaining the assumptions on which [the expert witness’s] opinion rests are not offered for their truth.” As stated in Crawford, the Sixth Amendment “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” Thus, the plurality concluded that such expert testimony did not violate the Confrontation Clause. Justice Thomas and the four dissenting justices disagreed, reasoning that offering out-of-court statements to explain an expert witness’s opinion necessarily involves the factfinder evaluating the truth of those statements. As Justice Thomas put it, “[T]he value of [the expert witness’s] testimony depend[s] on the truth of those very assumptions.”
Smith v. Arizona—A Chance for Clarity?
Smith v. Arizona, a case originating in Yuma, has finally presented the U.S. Supreme Court with the opportunity to clarify the sharp disagreement in Williams, albeit a decade later. In 2021, a jury in the Yuma County Superior Court convicted Jason Smith of several felony drug offenses. At trial, the State called Arizona Department of Public Safety (“DPS”) forensic scientist Greggory Longoni, who testified that the substances Smith allegedly possessed contained methamphetamine, marijuana, and cannabis. But Longoni never actually tested the substances—he based his expert testimony upon tests conducted by a former DPS forensic scientist, Elizabeth Rast. Rast did not testify. In Smith’s appeal to the Arizona Court of Appeals, he argued that his Sixth Amendment rights were violated because Longoni’s opinions relied upon Rast’s out-of-court, testimonial statements.
The Arizona Court of Appeals rejected Smith’s argument, reasoning that Longoni offered independent opinions that “reasonably relied” on Rast’s analysis but did not act as a “mere conduit” for the non-testifying expert’s conclusions. The court’s reasoning followed that of the plurality in Williams: out-of-court statements underlying an expert’s independent opinion are not offered for their truth. Instead, they are offered to explain the basis of the opinion and allow the factfinder to evaluate its credibility. Therefore, no Confrontation Clause issue exists. The Supreme Court of Arizona denied Smith’s petition for review in January 2023, but the Supreme Court of the United States granted Smith’s Petition for a Writ of Certiorari in September 2023.
Smith v. Arizona tees up both issues left unresolved by Williams: (1) under what circumstances out-of-court statements underlying an expert opinion are offered for their truth, and (2) the standard for “testimonial” statements. The Court need not resolve both issues in reaching a decision. If the Court found that Rast’s analysis was not offered for its truth, then it wouldn’t have to clarify the standard for testimonial statements. Conversely, if the Court found that the analysis was not testimonial because it did not have the “primary purpose of accusing a targeted individual,” then they could avoid deciding the “not-for-the-truth” issue. However, with the level of uncertainty surrounding this area, it is hard to imagine the Court punting on either issue.
The Court’s forthcoming opinion, assuming it garners a majority, will decide countless evidentiary issues in criminal cases across the country going forward.
By Sam Curry
J.D. Candidate, 2025
Sam Curry is a second-year law student at Arizona State University interested in corporate law. He is a native of Big Timber, Montana, and received his bachelor’s degree from Stanford University in 2020. Sam then worked as a research fellow for Stanford Securities Litigation Analytics, a research project at the Stanford Law School which tracks and analyzes data on shareholder securities litigation. Sam spent last summer as an extern to the Honorable Cynthia J. Bailey at the Arizona Court of Appeals, and will spend next summer at the Houston office of Simpson Thacher & Bartlett LLP as a summer associate. In his free time, Sam enjoys playing golf, woodworking, and spending time with his family and friends.