NOTICE: This opinion is subject to
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SUPREME COURT OF THE UNITED STATES
_________________
No. 22–899
_________________
JASON SMITH, PETITIONER
v. ARIZONA
on writ of certiorari to the court of appeals
of arizona, division one
[June 21, 2024]
Justice Kagan delivered the opinion of the
Court.
The Sixth Amendment’s Confrontation Clause
guarantees a criminal defendant the right to confront the witnesses
against him. The Clause bars the admission at trial of “testimonial
statements” of an absent witness unless she is “unavailable to
testify, and the defendant ha[s] had a prior opportunity” to
cross-examine her.
Crawford v.
Washington,
541 U.S.
36, 53–54 (2004). And that prohibition applies in full to
forensic evidence. So a prosecutor cannot introduce an absent
laboratory analyst’s testimonial out-of-court statements to prove
the results of forensic testing. See
Melendez-Diaz v.
Massachusetts,
557 U.S.
305, 307, 329 (2009).
The question presented here concerns the
application of those principles to a case in which an expert
witness restates an absent lab analyst’s factual assertions to
support his own opinion testimony. This Court has held that the
Confrontation Clause’s requirements apply only when the prosecution
uses out-of-court statements for “the truth of the matter
asserted.”
Crawford, 541 U. S., at 60, n. 9. Some
state courts, including the court below, have held that this
condition is not met when an expert recites another analyst’s
statements as the basis for his opinion. Today, we reject that
view. When 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. As this dispute illustrates, that will generally be the case
when an expert relays an absent lab analyst’s statements as part of
offering his opinion. And if those statements are testimonial
too—an issue we briefly address but do not resolve as to this
case—the Confrontation Clause will bar their admission.
I
A
The Confrontation Clause provides that “[i]n
all criminal prosecutions, the accused shall enjoy the right
. . . to be confronted with the witnesses against him.”
In operation, the Clause protects a defendant’s right of
cross-examination by limiting the prosecution’s ability to
introduce statements made by people not in the courtroom. For a
time, this Court held that the Clause’s “preference for
face-to-face” confrontation could give way if a court found that an
out-of-court statement bore “adequate indicia of reliability.”
Ohio v.
Roberts,
448 U.S.
56, 65–66 (1980). But two decades ago, the Court changed
course, to better reflect original understandings. In
Crawford v.
Washington, the Court deemed it
“fundamentally at odds with the right of confrontation” to admit
statements based on judicial determinations of reliability. 541
U. S., at 61. The Clause,
Crawford explained,
“commands[ ] not that evidence be reliable, but that
reliability be assessed in a particular manner: by testing in the
crucible of cross-examination.”
Ibid. And so 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 to subject her to
cross-examination.
But not always. The Clause’s prohibition
“applies only to testimonial hearsay”—and in that two-word phrase
are two limits.
Davis v.
Washington,
547 U.S.
813, 823 (2006). First, in speaking about “witnesses”—or “those
who bear testimony”—the Clause confines itself to “testimonial
statements,” a category whose contours we have variously described.
Id., at 823, 826; see
id., at 822 (statements “made
in the course of police interrogation” were testimonial when “the
primary purpose of the interrogation [was] to establish or prove
past events potentially relevant to later criminal prosecution”);
Michigan v.
Bryant,
562 U.S.
344, 358, 359 (2011) (statements made to police “to meet an
ongoing emergency” were “not procured with a primary purpose of
creating an out-of-court substitute for trial testimony”);
Melendez-Diaz, 557 U. S., at 311 (testimonial
certificates of the results of forensic analysis were created
“under circumstances which would lead an objective witness
reasonably to believe that the statement[s] would be available for
use at a later trial”);
infra, at 19. Second and more
relevant here, the Clause bars only the introduction of
hearsay—meaning, out-of-court statements offered “to prove the
truth of the matter asserted.”
Anderson v.
United
States,
417 U.S.
211, 219 (1974). When a statement is admitted for a reason
unrelated to its truth, we have held, the Clause’s “role in
protecting the right of cross-examination” is not implicated.
Tennessee v.
Street,
471 U.S.
409, 414 (1985); see
Anderson, 417 U. S., at 220.
That is because the need to test an absent witness ebbs when her
truthfulness is not at issue. See
ibid.;
Street, 471
U. S., at 414;
infra, at 13–14, 17.
Not long after
Crawford, the Court made
clear that the Confrontation Clause applies to forensic reports. In
Melendez-Diaz v.
Massachusetts, state prosecutors
introduced “certificates of analysis” (essentially, affidavits)
stating that lab tests had identified a substance seized from the
defendant as cocaine. 557 U. S., at 308. But the State did not
call as witnesses the analysts who had conducted the tests and
signed the certificates. We held that a “straightforward
application” of
Crawford showed a constitutional violation.
557 U. S., at 312. The certificates were testimonial: They had
an “evidentiary purpose,” identical to the one served had the
analysts given “live, in-court testimony.”
Id., at 311. And
the certificates were offered to prove the truth of what they
asserted: that the seized powder was in fact cocaine. See
id., at 310–311. So the defendant had a right to
cross-examine the lab-analyst certifiers. In reaching that
conclusion, we rejected the State’s claim that the results of
so-called “neutral, scientific testing” should be subject to a
different rule.
Id., at 317. We again underscored that the
Confrontation Clause commanded not reliability but one way of
testing it—through cross-examination. See
ibid. And we
thought that method might have plenty to do in cases involving
forensic analysis. After all, lab tests are “not uniquely immune
from the risk of manipulation” or mistake.
Id., at 318. The
defendant might have used cross-examination to probe “what tests
the analysts performed,” whether those tests “present[ed] a risk of
error,” and whether the analysts had the right skill set to
“interpret[ ] their results.”
Id., at 320.
Two years later, the Court relied on
Melendez-Diaz to hold that a State could not introduce one
lab analyst’s written findings through the testimony of another. In
Bullcoming v.
New Mexico,
564
U.S. 647, 651–652 (2011), an analyst tested the blood-alcohol
level of someone charged with drunk driving, and prepared a
“testimonial certification” reporting that the level was higher
than legal. But by the time the driver’s trial began, that analyst
had been placed on unpaid leave. So the State instead called a
different analyst from the same lab to testify as to what the
certification said. The substitute analyst had similar
qualifications, and knew about the type of test performed. But the
Court held that insufficient to satisfy the Confrontation Clause.
The “surrogate testimony,” the Court explained, “could not convey
what [the certifying analyst] knew or observed” about “the
particular test and testing process he employed.”
Id., at
661. Nor could that “testimony expose any lapses or lies on the
certifying analyst’s part,” or offer any insight into whether his
leave-without-pay was the result of misconduct.
Id., at 662.
Concluded the Court: “[W]hen the State elected to introduce [the]
certification,” its author—and not any substitute—“became [the]
witness [that the defendant] had the right to confront.”
Id., at 663.
The very next Term brought another case in which
one lab analyst related what another had found—though this time on
the way to stating her own conclusion. In
Williams v.
Illinois,
567 U.S.
50 (2012), state police sent vaginal swabs from a rape victim
known as L. J. to a private lab for DNA testing. When the lab
sent back a DNA profile, a state analyst checked it against the
police department’s database and found that it matched the profile
of prior arrestee Sandy Williams. The State charged Williams with
the rape, and he went to trial. The prosecution chose not to bring
the private lab analyst to the stand. Instead, it called Sandra
Lambatos, the state analyst who had searched the police database
and found the DNA match. Lambatos had no first-hand knowledge of
how the private lab had produced its results; she did not even know
whether those results actually came from L. J.’s vaginal swabs (as
opposed to some other sample). But she spoke repeatedly about
comparing Williams’s DNA to the DNA “found in [L. J.’s]
vaginal swabs.”
Id., at 61, 71 (plurality opinion); see
id., at 124 (Kagan, J., dissenting). So in addition to
describing how she discovered a match, Lambatos became the conduit
for what a different analyst had reported—that a particular DNA
profile came from L. J.’s vaginal swabs. Williams objected, at
trial and later: He thought that, just as in
Bullcoming,
crucial evidence had been admitted through a surrogate expert, thus
violating his right of confrontation.
But the Illinois Supreme Court rejected
Williams’s claim, holding that Lambatos’s testimony about the
private lab analyst’s finding did not raise a Confrontation Clause
issue. See
People v.
Williams, 238 Ill. 2d 125,
143–144, 939 N.E.2d 268, 278–279 (2010). The court explained that
under state evidence law, an expert can disclose “underlying facts
and data” for “the purpose of explaining the basis for [her]
opinion.”
Id., at 137, 143, 939 N. E. 2d, at 274–275,
278. And when she does so, the court held, the testimony is not
subject to the Confrontation Clause because it is not admitted “for
the truth of the matter asserted.”
Id., at 143, 939
N. E. 2d, at 278. Thus, Lambatos could relay the private lab’s
finding that L. J.’s vaginal swabs produced a certain DNA
profile in order to “explain[ ] the basis for her opinion”
that “there was a DNA match between [Williams’s] blood sample and
the semen sample recovered from L. J.”
Id., at 150, 939
N. E. 2d, at 282. The admission of the private lab report’s
contents for that “limited purpose,” the court reasoned, would “aid
the [factfinder] in assessing the value of [Lambatos’s] opinion.”
Id., at 144, 939 N. E. 2d, at 278; see
id., at
150, 939 N. E. 2d, at 282.
This Court granted Williams’s petition for
certiorari, but failed to produce a majority opinion. Four Members
of the Court approved the Illinois Supreme Court’s approach to
“basis evidence,” and agreed that Lambatos’s recitation of the
private lab’s findings served “the legitimate nonhearsay purpose of
illuminating the expert’s thought process.”
Williams, 567
U. S., at 78 (plurality opinion). But the remaining five
Members rejected that view. Those five stated, in two opinions,
that basis evidence is generally introduced for its truth, and was
so introduced at Williams’s trial. Justice Thomas explained that
“the purportedly limited reason for [the basis] testimony—to aid
the factfinder in evaluating the expert’s opinion—necessarily
entail[ed] an evaluation of whether [that] testimony [was] true”:
“[T]he validity of Lambatos’[s] opinion ultimately turned on the
truth of [the private lab analyst’s] statements.”
Id., at
106, n. 1, 108 (concurring in judgment). A dissent for another
four Justices agreed: “[T]he utility of the [private analyst’s]
statement that Lambatos repeated logically depended on its truth.”
Id., at 132 (opinion of Kagan, J.). And the State could not
avoid that conclusion by “rely[ing] on [Lambatos’s] status as an
expert.”
Id., at 126. Those shared views might have made for
a happy majority, except that a different Confrontation Clause
issue intruded. Justice Thomas thought that the private lab report
was not testimonial because it lacked sufficient formality, so
affirmed the Illinois Supreme Court on that alternative ground. The
bottom line was that Williams lost, even though five Members of
this Court rejected the state court’s “not for the truth”
reasoning.[
1]
Our opinions in
Williams “have sown
confusion in courts across the country” about the Confrontation
Clause’s application to expert opinion testimony.
Stuart v.
Alabama, 586 U. S. ___, ___ (2018) (Gorsuch, J.,
dissenting from denial of certiorari) (slip op., at 2). Some courts
have applied the
Williams plurality’s “not for the truth”
reasoning to basis testimony, while others have adopted the opposed
five-Justice view.[
2] This case
emerged out of that muddle.
B
Like
Melendez-Diaz, this case involves
drugs. In December 2019, Arizona law enforcement officers executed
a search warrant on a property in the foothills of Yuma County.
Inside a shed on the property, they found petitioner Jason Smith.
They also found a large quantity of what appeared to be drugs and
drug-related items. As a result, Smith was charged with possessing
dangerous drugs (methamphetamine) for sale; possessing marijuana
for sale; possessing narcotic drugs (cannabis) for sale; and
possessing drug paraphernalia. He pleaded not guilty, and the case
was set for trial.
In preparation, the State sent items seized from
the shed to a crime lab run by the Arizona Department of Public
Safety (DPS) for a “full scientific analysis.” App. to Pet. for
Cert. 127a. The State’s request identified Smith as the individual
“associated” with the substances, listed the charges against him,
and noted that “[t]rial ha[d] been set.”
Ibid. Analyst
Elizabeth Rast communicated with prosecutors about exactly which
items needed to be examined, and then ran the requested tests. See
id., at 99a.
Rast prepared a set of typed notes and a signed
report, both on DPS letterhead, about the testing. The notes
documented her lab work and results. They disclosed, for each of
eight items: a “[d]escription” of the item; the weight of the item
and how the weight was measured; the test(s) she performed on the
item, including whether she first ran a “[b]lank” on the testing
equipment; the results of those tests; and a “[c]onclusion” about
the item’s identity. See
id., at 88a–98a. The signed report
then distilled the notes into two pages of ultimate findings,
denoted “results/interpretations.” See
id., at 85a–87a.
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.”
Id., at 86a–87a. The State
originally planned for Rast to testify about those matters at
Smith’s trial.
But with three weeks to go, the State called an
audible, replacing Rast with a different DPS analyst as its expert
witness. In the time between testing and trial, Rast had stopped
working at the lab, for unexplained reasons. And the State chose
not to rely on the now-former employee as a witness. So the
prosecutors filed an amendment to their “final pre-trial conference
statement” striking out the name Elizabeth Rast and adding
“Greggory Longoni, forensic scientist (substitute expert).”
Id., at 26a. Longoni had no prior connection to the Smith
case, and the State did not claim otherwise. Its amendment simply
stated that “Mr. Longoni will provide an independent opinion on the
drug testing performed by Elizabeth Rast.”
Ibid. And it
continued: “Ms. Rast will not be called. [Mr. Longoni] is expected
to have the same conclusion.”
Ibid.
And he did come to the same conclusion, in
reliance on Rast’s records. Because he had not participated in the
Smith case, Longoni prepared for trial by reviewing Rast’s report
and notes. And when Longoni took the stand, he referred to those
materials and related what was in them, item by item by item. As to
each, he described the specific “scientific method[s]” Rast had
used to analyze the substance (
e.g., a microscopic
examination, a chemical color test, a gas chromatograph/mass
spectrometer test).
Id., at 41a; see
id., at 42a,
46a–48a. And as to each, he stated that the testing had adhered to
“general principles of chemistry,” as well as to the lab’s
“policies and practices,”
id., at 47a–48a; see
id.,
at 40a; so he noted, for example, that Rast had run a “blank” to
confirm that testing equipment was not contaminated,
id., at
42a, 47a. After thus telling the jury what Rast’s records conveyed
about her testing of the items, Longoni offered an “independent
opinion” of their identity.
Id., at 46a–47a, 49a. More
specifically, the opinions he offered were: that Item 26 was “a
usable quantity of marijuana,” that Items 20A and 20B were “usable
quantit[ies] of methamphetamine,” and that Item 28 was “[a] usable
quantity of cannabis.”
Ibid.
After Smith was convicted, he brought an appeal
focusing on Longoni’s testimony. In Smith’s view, the State’s use
of a “substitute expert”—who had not participated in any of the
relevant testing—violated his Confrontation Clause rights.
Id., at 26a; see Brief for Appellant Smith in No. 1 CA–CR
21–0451 (Ariz. Ct. App.), pp. 20–23. The real witness against
him, Smith urged, was Rast, through her written statements; but he
had not had the opportunity to cross-examine her. See
ibid.
The State disagreed. In its view, Longoni testified about “his own
independent opinions,” even though making use of Rast’s records.
Brief for Appellee Arizona in No. 1 CA–CR 21–0451 (Ariz. Ct. App.),
p. 22. So Longoni was the only witness Smith had a right to
confront. See
ibid.
The Arizona Court of Appeals affirmed Smith’s
convictions, rejecting his Confrontation Clause challenge. It
relied on Arizona precedent (similar to the Illinois Supreme
Court’s decision in
Williams) stating that an expert may
testify to “the substance of a non-testifying expert’s analysis, if
such evidence forms the basis of the [testifying] expert’s
opinion.” App. to Pet. for Cert. 11a–12a (quoting
State
ex rel. Montgomery v.
Karp, 236 Ariz. 120, 124, 336
P.3d 753, 757 (App. 2014)). That is because, the Arizona courts
have said, the “underlying facts” are then “used only to show the
basis of [the in-court witness’s] opinion and not to prove their
truth.”
Ibid., 336 P. 3d, at 757. On that view, the
Court of Appeals held, Longoni could constitutionally
“present[ ] his independent expert opinions” as “based on his
review of Rast’s work.” App. to Pet. for Cert. 11a.
We granted certiorari to consider that
reasoning, 600 U. S. ___ (2023), and we now reject
it.[
3]
II
Smith’s confrontation claim can succeed only
if Rast’s statements came into evidence for their truth. As earlier
explained, the Clause applies solely to “testimonial
hearsay.”
Davis, 547 U. S., at 823 (emphasis
added); see
supra, at 3. And that means the Clause “does not
bar the use of testimonial statements for purposes other than
establishing the truth of the matter asserted.”
Crawford,
541 U. S., at 60, n. 9. So a court analyzing a
confrontation claim must identify the role that a given
out-of-court statement—here, Rast’s statements about her lab
work—served at trial. On that much, indeed, the entire
Williams Court agreed. Amid all the fracturing that case
produced, every Justice defined its primary question in the same
way: whether the absent analyst’s statements were introduced for
their truth. See 567 U. S., at 57–58 (plurality opinion);
id., at 104 (Thomas, J., concurring in judgment);
id., at 125–126 (Kagan, J., dissenting). The parties here
likewise concur in that framing. See Brief for Smith 28–29; Brief
for Arizona 17–18. If Rast’s statements came in to establish the
truth of what she said, then the Clause’s alarms begin to ring; but
if her statements came in for another purpose, then those alarms
fall quiet.
Where the parties disagree, of course, is in
answering that purpose question. Smith argues that the “for the
truth” condition is satisfied here, just as much as in
Melendez-Diaz or
Bullcoming. See Brief for Smith
23–28;
supra, at 3–5. In his view, Rast’s statements were
conveyed, via Longoni’s testimony, to establish that what she said
happened in the lab did in fact happen. Or put more specifically,
those statements were conveyed to show that she used certain
standard procedures to run certain tests, which enabled
identification of the seized items. The State sees the matter
differently. See Brief for Arizona 19–26. Echoing the Arizona Court
of Appeals (and the Illinois Supreme Court in
Williams), the
State argues that Rast’s statements came into evidence not for
their truth, but instead to “show the basis” of the in-court
expert’s independent opinion. Brief for Arizona 21; see
supra, at 6. And to defend that characterization, Arizona
emphasizes that its Rule of Evidence 703 (again, like Illinois’s)
authorizes the admission of such statements only for that
purpose—
i.e., to “help[ ] the jury [to] evaluate” the
opinion testimony. Brief for Arizona 20–21; see
post, at 8
(Alito, J., concurring in judgment) (arguing the same as to Federal
Rule of Evidence 703).
Evidentiary rules, though, do not control the
inquiry into whether a statement is admitted for its truth. That
inquiry, as just described, marks the scope of a federal
constitutional right. See
supra, at 11. And federal
constitutional rights are not typically defined—expanded or
contracted—by reference to non-constitutional bodies of law like
evidence rules.[
4] The
confrontation right is no different, as
Crawford made clear.
“Where testimonial statements are involved,” that Court explained,
“the Framers [did not mean] to leave the Sixth Amendment’s
protection to the vagaries of the rules of evidence.” 541
U. S., at 61. Justice Thomas reiterated the point in
Williams: “[C]oncepts central to the application of the
Confrontation Clause are ultimately matters of federal
constitutional law that are not dictated by state or federal
evidentiary rules.” 567 U. S., at 105 (opinion concurring in
judgment). We therefore do not “accept [a State’s] nonhearsay label
at face value.”
Id., at 106; see
id., at 132 (Kagan,
J., dissenting). Instead, we conduct an independent analysis of
whether an out-of-court statement was admitted for its truth, and
therefore may have compromised a defendant’s right of
confrontation.
We did just that in
Tennessee v.
Street—and in so doing showcased how an out-of-court
statement can come into evidence for a non-truth-related reason.
See 471 U. S., at 410–417. Street was charged with murder,
based mostly on a stationhouse confession. At trial, he claimed
that the confession was coerced, and in a peculiar way: The
sheriff, he said, had read aloud an accomplice’s confession and
forced him to repeat it. On rebuttal, the State introduced the
other confession (through the sheriff ’s testimony) to
demonstrate to the jury all the ways its content deviated from
Street’s. We upheld that use as “nonhearsay.”
Id., at 413.
The other confession came in, we explained, not to prove “the truth
of [the accomplice’s] assertions” about how the murder happened,
but only to disprove Street’s claim about how the sheriff elicited
his own confession.
Ibid. Or otherwise said, the point was
to show, by highlighting the two confessions’ differences, that
Street’s was not a “coerced imitation.”
Id., at 414. For
that purpose, the truth of the accomplice’s confession (and the
credibility of the accomplice himself ) was irrelevant.
But truth 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? “The whole point” of the prosecutor’s
eliciting such a statement is “to establish—
because of the
[statement’s] truth—a basis for the jury to credit the
testifying expert’s” opinion.
Stuart, 586 U. S., at ___
(Gorsuch, J., dissenting from denial of certiorari) (slip op., at
3) (emphasis in original). Or said a bit differently, the truth of
the basis testimony is what makes it useful to the prosecutor; that
is what supplies the predicate for—and thus gives value to—the
state expert’s opinion. So “[t]here is no meaningful distinction
between disclosing an out-of-court statement” to “explain the basis
of an expert’s opinion” and “disclosing that statement for its
truth.”
Williams, 567 U. S., at 106 (Thomas, J.,
concurring in judgment). A State may use only the former label, but
in all respects the two purposes merge.
Or to see the point another way, consider it
from the factfinder’s perspective. In the view of the Arizona
courts, an expert’s conveyance of another analyst’s report enables
the factfinder to “determine whether [the expert’s] opinion should
be found credible.”
Karp, 236 Ariz., at 124, 336 P. 3d,
at 757; see
Williams, 238 Ill. 2d, at 144, 939 N. E.
2d, at 278 (also stating that such a report “aid[s] the jury in
assessing the value of [the expert’s] opinion”);
supra, at
6, 10. That is no doubt right. The jury cannot decide whether the
expert’s opinion is credible without evaluating the truth of the
factual assertions on which it is based. See D. Kaye, D. Bernstein,
A. Ferguson, M. Wittlin, & J. Mnookin, The New Wigmore: Expert
Evidence §5.4.1, p. 271 (3d ed. 2021). If believed true, that basis
evidence will lead the jury to credit the opinion; if believed
false, it will do the opposite. See
Williams, 567
U. S., at 106, and n. 1 (Thomas, J., concurring in
judgment);
id., at 126–127 (Kagan, J., dissenting). But that
very fact is what raises the Confrontation Clause problem. For the
defendant has no opportunity to challenge the veracity of the
out-of-court assertions that are doing much of the work.
And if that explanation seems a bit abstract,
then take this case as its almost-too-perfect illustration. Recall
that Rast tested eight seized items before she disappeared from the
scene. At trial, the prosecutor asked the State’s “substitute
expert” Longoni to testify about four of them (with the rest
dropping out of the case). App. to Pet. for Cert. 26a. A recap of
their exchange about one item will be enough; the rest followed the
same pattern. Remember as you read that Longoni, though familiar
with the lab’s general practices, had no personal knowledge about
Rast’s testing of the seized items. Rather, as his testimony makes
clear, what he knew on that score came only from reviewing Rast’s
records. With that as background:
Q Turn your attention to Item 26. I’m going to
hand you what’s been marked as State’s Exhibit 98 [Rast’s
notes]. . . . Did you review how [Item] 26 was
tested in this case?
A Yes.
Q When you reviewed it, did you notice whether
the [standard lab] policies and practices that you have just
described were followed?
A Yes.
Q Were they followed?
A Yes.
. . . . .
Q From your review of the lab notes in this
case, can you tell me what scientific method was used to analyze
Item 26?
A Yes.
Q And what was used?
A The microscopic examination and the chemical
color test. . . .
Q That was done in this case?
A Yes, it was.
Q Was there a blank done to prevent
contamination, make sure everything was clean?
A According to the notes, yes.
. . . . .
Q In reviewing what was done, your knowledge
and training as a forensic scientist, your knowledge and experience
with DPS’s policies, practices, procedures, your knowledge of
chemistry, the lab notes, the intake records, the chemicals used,
the tests done, can you form an independent opinion on the identity
of Item 26?
A Yes.
Q What is that opinion?
A That is a usable quantity of marijuana.
Id., at 39a–42a, 46a. And then the
prosecutor went on to Items 20A, 20B, and 28, asking similar
questions, receiving similar answers based on Rast’s records, and
finally eliciting similar “independent opinions”—which were no more
than what Rast herself had concluded. See
supra, at 8–9.
“Yes,” Longoni confirmed, just as Item 26 was a “usable quantity of
marijuana,” Items 20A and 20B were “usable quantit[ies] of
methamphetamine” and Item 28 was a “usable quantity of cannabis.”
App. to Pet. for Cert. 46a, 47a, 49a.
Rast’s statements thus came in for their truth,
and no less because they were admitted to show the basis of
Longoni’s expert opinions. All those opinions were predicated on
the truth of Rast’s factual statements. Longoni could opine that
the tested substances were marijuana, methamphetamine, and cannabis
only because he accepted the truth of what Rast had reported about
her work in the lab—that she had performed certain tests according
to certain protocols and gotten certain results. And likewise, the
jury could credit Longoni’s opinions identifying the substances
only because it too accepted the truth of what Rast reported about
her lab work (as conveyed by Longoni). If Rast had lied about all
those matters, Longoni’s expert opinion would have counted for
nothing, and the jury would have been in no position to convict. So
the State’s basis evidence—more precisely, the truth of the
statements on which its expert relied—propped up its whole case.
But the maker of those statements was not in the courtroom, and
Smith could not ask her any questions.
Approving that practice would make our decisions
in
Melendez-Diaz and
Bullcoming a dead letter, and
allow for easy evasion of the Confrontation Clause. As earlier
described, those two decisions applied
Crawford in
“straightforward” fashion to forensic evidence.
Melendez-Diaz, 557 U. S., at 312; see
Bullcoming, 564 U. S., at 659–661;
supra, at
3–5. The first prevented the introduction of a lab analyst’s
testimonial report sans lab analyst. The second refused to accede
to the idea that any old analyst—
i.e., a substitute who had
not taken part in the lab work—would do. Arizona offers only a
slight variation. On its view, a surrogate analyst can testify to
all the same substance—that is, someone else’s substance—as long as
he bases an “independent opinion” on that material. And that is
true even if, as here, the proffered opinion merely replicates,
rather than somehow builds on, the testing analyst’s conclusions.
So every testimonial lab report could come into evidence through
any trained surrogate, however remote from the case. And no
defendant would have a right to cross-examine the testing analyst
about what she did and how she did it and whether her results
should be trusted. In short, Arizona wants to end run all we have
held the Confrontation Clause to require. It cannot.
Properly understood, the Clause still allows
forensic experts like Longoni to play a useful role in criminal
trials. Because Longoni worked in the same lab as Rast, he could
testify from personal knowledge about how that lab typically
functioned—the standards, practices, and procedures it used to test
seized substances, as well as the way it maintained chains of
custody. (Indeed, Longoni did just that in a different part of his
testimony. See App. to Pet. for Cert. 32a–39a.) Or had he not been
familiar with Rast’s lab, he could have testified in general terms
about forensic guidelines and techniques—perhaps explaining what it
means for a lab to be accredited and what requirements
accreditation imposes. Or as the
Williams plurality and
dissent both observed, he might have been asked—and could have
answered—any number of hypothetical questions, taking the form of:
“
If or
assuming some out-of-court statement were
true, what would follow from it?” See 567 U. S., at 67–68;
id., at 129, n. 2. (The State of course would then have
to separately prove the thing assumed.) The United States,
appearing as
amicus curiae in support of neither party,
usefully addressed these matters at oral argument, distinguishing
Longoni’s testimony as block-quoted above from the various kinds of
testimony just described. See Tr. of Oral Arg. 36–41. The latter
forms of testimony allow forensic expertise to inform a criminal
case without violating the defendant’s right of confrontation. And
we offer these merely as examples; there may be others.
But as the United States acknowledged, the bulk
of Longoni’s testimony took no such permissible form.
Ibid.
Here, the State used Longoni to relay what Rast wrote down about
how she identified the seized substances. Longoni thus effectively
became Rast’s mouthpiece. He testified to the precautions (she
said) she took, the standards (she said) she followed, the tests
(she said) she performed, and the results (she said) she obtained.
The State offered up that evidence so the jury would believe it—in
other words, for its truth. So if the out-of-court statements were
also testimonial, their admission violated the Confrontation
Clause. Smith would then have had a right to confront the person
who actually did the lab work, not a surrogate merely reading from
her records.
III
What remains is whether the out-of-court
statements Longoni conveyed were testimonial. As earlier explained,
that question is independent of everything said above: To implicate
the Confrontation Clause, a statement must be hearsay (“for the
truth”) and it must be testimonial—and those two issues are
separate from each other. See
supra, at 3. The latter, this
Court has stated, focuses on the “primary purpose” of the
statement, and in particular on how it relates to a future criminal
proceeding. See
ibid. (noting varied formulations of the
standard).[
5] 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.
Bryant, 562 U. S., at 369.
But that issue is not now fit for our
resolution. The question presented in Smith’s petition for
certiorari did not ask whether Rast’s out-of-court statements were
testimonial. See
supra, at 11, n. 3 (quoting Pet. for
Cert. i). Instead, it took as a given that they were. See
id., at i. That presentation reflected the Arizona Court of
Appeals’ opinion. As described earlier, that court relied on the
“not for the truth” rationale we have just rejected. See
supra, at 10. It did not decide whether Rast’s statements
were testimonial. Nor, to our knowledge, did the trial court ever
take a stance on that issue. Because “we are a court of review, not
of first view,” we will not be the pioneer court to decide the
matter.
Cutter v.
Wilkinson,
544
U.S. 709, 718, n. 7 (2005). And indeed, we are not sure if
there remains a matter to decide. Smith argues that the State has
forfeited the argument: Arizona, he says, “gave no hint in the
proceedings below that it believed Rast’s statements were anything
but testimonial.” Reply Brief 3. The State denies that assertion,
pointing to a passage about
Williams in its lower court
briefing. See Brief for Arizona 39, n. 14. The dispute is best
addressed by a state court. So we return the testimonial issue,
including the threshold forfeiture matter, to the Arizona Court of
Appeals.
But we offer a few thoughts, based on the
arguments made here, about the questions the state court might
usefully address if the testimonial issue remains live. First, the
court will need to consider exactly which of Rast’s statements are
at issue. In this Court, the parties disputed whether Longoni was
reciting from Rast’s notes alone, or from both her notes and final
report. See
supra, at 8–9 (describing those documents). In
Arizona’s view, everything Longoni testified to came from Rast’s
notes; although he at times used the word “report,” a close
comparison of the documents and his testimony reveals (the State
says) that he meant only the notes. See Brief for Arizona 39–40;
Tr. of Oral Arg. 69–72; see also App. to Pet. for Cert. 39a–40a,
48a. Smith disagrees, taking Longoni’s references to the “report,”
as well as the notes, at face value. According to Smith, Longoni
“relied on both” documents and in fact “treated them as a unit,”
with the notes “attached” to the report as “essentially an
appendix.” Reply Brief 4; Tr. of Oral Arg. 25, 98. Resolving that
dispute might, or then again might not, affect the court’s ultimate
disposition of Smith’s Confrontation Clause claim. We note only
that before the court can decide the primary purpose of the
out-of-court statements introduced at Smith’s trial, it needs to
determine exactly what those statements were.
In then addressing the statements’ primary
purpose—why Rast created the report or notes—the court should
consider the range of recordkeeping activities that lab analysts
engage in. See generally
supra, at 3 (describing
formulations of the testimonial inquiry). After all, some records
of lab analysts will not have an evidentiary purpose. The United
States as
amicus curiae notes, for example, that lab records
may come into being primarily to comply with laboratory
accreditation requirements or to facilitate internal review and
quality control. See Tr. of Oral Arg. 51. Or some analysts’ notes
may be written simply as reminders to self. See
id., at 20,
52. In those cases, the record would not count as testimonial. To
do so, the document’s primary purpose must have “a focus on court.”
Id., at 52. And again, the state court on remand should make
that assessment as to each record whose substance Longoni
conveyed.
IV
Our holding today follows from all this Court
has held about the Confrontation Clause’s application to forensic
evidence. A State may not introduce the testimonial out-of-court
statements of a forensic analyst at trial, unless she is
unavailable and the defendant has had a prior chance to
cross-examine her. See
Crawford, 541 U. S., at 68;
Melendez-Diaz, 557 U. S., at 311. Neither may the State
introduce those statements through a surrogate analyst who did not
participate in their creation. See
Bullcoming, 564
U. S., at 663. And nothing changes if the surrogate—as in this
case—presents the out-of-court statements as the basis for his
expert opinion. 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. So a defendant has the
right to cross-examine the person who made them.
That means Arizona does not escape the
Confrontation Clause just because Rast’s records came in to explain
the basis of Longoni’s opinion. The Arizona Court of Appeals
thought otherwise, and so we vacate its judgment. 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.
It is so ordered.