Rule 703 vs. the Sixth Amendment

The US Supreme Court decided several important criminal cases this past term. One of them was Smith v. Arizona, a case involving an expert witness who testified at a criminal trial that substances taken from the defendant were meth and marijuana. But the expert who testified in court was not the expert who analyzed the drugs. A different expert who was unavailable for trial had analyzed the drugs and documented her findings in a report. And the expert who testified based his opinion entirely on the report generated by the unavailable analyst.

Several courts across the country had concluded that the Confrontation Clause does not prohibit an expert from testifying about a different expert’s conclusions so long as the testifying expert forms his own opinion—even if his opinion is based exclusively on the other expert’s report. The reasoning behind this peculiar circumstance never made sense to me and seemed to be inconsistent with the Court’s decision in Bullcoming v. New Mexico, 564 U.S. 647 (2011) where the Supreme Court ruled that the written report is not admissible unless the expert who authored it testifies in court.

But if an expert is reaching an opinion about something—say whether a particular white powder is cocaine—and the only basis for the expert’s opinion is that a different expert tested the powder and concluded it was cocaine, it strikes me as quite disingenuous to suggest that this expert is really forming his own opinion. Because really all he is doing is regurgitating a different expert’s opinion and claiming it as his own. Unfortunately, the year after Bullcoming was decided, the Supreme Court muddied up the waters on this issue in a case called Williams v. Illinois, 567 U.S. 50 (2012) where the Supreme Court was faced with this problem and no five justices could agree on the result. Well, now they have.

Hearsay and the truth of the matter asserted

According to the US Supreme Court, the Confrontation Clause only prohibits the introduction of out-of-court statements in a criminal trial when they are “testimonial hearsay.” I’ve previously written about the testimonial vs nontestimonal distinction in the Court’s Confrontation Clause jurisprudence here. But this case is about a different problem in Confrontation Clause cases—whether the out-of-court statement is hearsay. And whether a statement is hearsay depends on whether the statement is being offered to prove the truth of the matter asserted.

When I was a trial lawyer and made a hearsay objection, a common response from prosecutors was “we’re not offering the statement to prove the truth of the matter asserted,” to which I would respond somewhat facetiously that I’d withdraw my objection if they stipulated the statement was false. Of course, that’s not really what “truth of the matter asserted” means. A statement isn’t hearsay if it doesn’t matter if the statement is true or false. That’s not to say the statement is false. It just is irrelevant whether it’s true. 

Rule 703 and the surrogate expert

Criminal cases frequently depend on the results of tests performed by some forensic analyst like a DNA expert or toxicologist. But what if the expert who tests the white powder taken from the defendant and concludes that it’s cocaine isn’t available to testify at trial. Under the Supreme Court’s prior cases like Melendez-Diaz and Bullcoming, the report generated by the unavailable expert isn’t admissible in court. Savy prosecutors started using “surrogate experts” to get around this problem. Instead of offering the unavailable expert’s written report, they would have a new expert come in and give his own opinion that the white powder was cocaine. And how did this surrogate expert know it was cocaine? Well, because he read the other expert’s report of course.

How could this not violate the Confrontation Clause? The theory was that Rule 703 of the Federal Rules of Evidence—essentially identical to the South Carolina Rule—allows experts to rely on inadmissible evidence in formulating their opinions. So the non-testifying expert’s findings, which are inadmissible hearsay, are supposedly not being offered for their truth but instead are being offered to form the basis of the testifying expert’s opinion which is explicitly allowed under Rule 703.

This sort of bait and switch runaround tactic was presented in Williams v. Illinois and the Court failed to answer it. In my humble opinion, the fractured Court in Williams undermined the Court’s decision in Bullcoming which probably led to courts around the country reading Bullcoming too narrowly. Of course the non-testifying experts conclusions were being offered for their truth because the testifying expert’s opinion is entirely dependent on those conclusions being true.

Smith v. Arizona

The defendant in Smith argued that the non-testifying expert’s conclusions were conveyed through the testifying expert “to establish that what she said happened in the lab did in fact happen,” aka for the truth of the matter asserted. The State claimed that under Rule 703 of the Rules of Evidence, an expert can base her opinion on inadmissible evidence and the non-testifying expert’s statements weren’t being offered for their truth but instead to form the basis of the testifying expert’s opinion. (Those are the same thing by the way).

Justice Kagan, writing for the majority in Smith gave the perfect retort: “[F]ederal constitutional rights are not typically defined—expanded or contracted—by reference to non-constitutional bodies of law like evidence rules. The confrontation right is no different.” The rules of evidence do not override the constitution. Surprising this needs to be said, but here we are. Justice Kagan went on to explain that “[t]he 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.” Duh.

In Smith, the testifying expert could only form his own opinion about the substances being meth and marijuana if he accepted the non-testifying expert’s report as true. Otherwise, it would make absolutely no sense. So the Court was obviously correct when it held 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.” The Confrontation Clause therefore prohibits the introduction of such expert statements if they are also testimonial.

Conclusion

At first glance it might not seem like a big deal that one expert tested the substances in a lab and a different expert testified in court about it. The problem though is that the “witness” against the defendant is the expert who actually performed the test. And the reason that expert is the one who must testify at trial is so that the defendant can ask that expert questions under oath in front of the jury.

If you watch enough Law and Order or CSI, you may be fooled into thinking that forensic testing is infallible. Well, it’s not. Every kind of forensic expert who performs various testing on evidence in criminal cases is prone to error. Thanks to the Confrontation Clause in the Sixth Amendment, defendants must have the opportunity to question the analyst who performed the tests to expose any errors. So in Rule 703 vs. the Sixth Amendment, the Sixth Amendment wins.

Even though my personal opinion is that the holding in Smith v. Arizona is nothing more than the Supreme Court stating something that is painfully obvious—apparently we still needed this decision to clear up this area of the law. Criminal defense attorneys need to be aware that when they are faced with a testifying expert who is basing his opinion on a non-testifying expert’s tests, that is a violation of the Confrontation Clause and is not admissible. So, remember to object.

adam@ruffinappeals.com

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Columbia, SC 29201