This post summarizes Smith v. Arizona and United States v. Rahimi from the Supreme Court of the United States, decided on June 21, 2024. These summaries, prepared by Phil Dixon (Smith) and Jeff Welty (Rahimi) will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.
When an expert witness conveys a non-testifying analyst’s statements in support of the expert’s opinion, and the statements provide that support only if true, the statements are offered for the truth of the matter asserted and thus are hearsay implicating the Confrontation Clause
Smith v. Arizona, 602 U.S. ___ (2024). Mr. Smith was charged and tried for various drug offenses in Arizona state court. Suspected drugs seized from Smith’s property were sent to a state-run crime lab for testing. Analyst Rast performed the testing, producing notes and a final report on the identity of the substances. She concluded that the items tested were illegal controlled substances. For reasons not apparent from the record, Rast was not available to testify at trial, and state prosecutors called a substitute analyst, Longoni, to provide his independent expert opinion about the drugs. Longoni was not involved in the testing procedures performed by Rast, but he used Rast’s report and notes as the basis of his opinion at Smith’s trial. On appeal, the defendant argued that the use of a substitute analyst to present the conclusions of another, non-testifying analyst violated his rights under the Confrontation Clause of the Sixth Amendment to the U.S. Constitution. The Arizona Court of Appeals affirmed the convictions, relying on state precedent permitting a substitute analyst to testify to an independent opinion by using the report of a non-testifying witness as the basis of opinion. Smith then sought review at the U.S. Supreme Court. The Court unanimously vacated the lower court’s decision, with five justices joining the Court’s opinion in full.
The Confrontation Clause bars the admission of testimonial hearsay statements unless the witness is unavailable, and the defendant previously had a motive and opportunity to cross-examine the witness (subject to certain narrow exceptions not relevant here). Crawford v. Washington, 541 U.S. 36, 53-54 (2004). Testimonial forensic reports are subject to this general rule. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 307 (2009). Arizona (like North Carolina) has permitted substitute analyst testimony under the theory that the use of a non-testifying expert’s report is not hearsay (and therefore not subject to the Confrontation Clause) when the report is used as the basis for the testifying expert’s opinion. According to the Court’s 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.” Smith Slip op. at 1-2.
This question was argued but left open by a fractured plurality decision in Williams v. Illinois, 567 U.S. 50 (2012). There, five Justices rejected the “basis of opinion” logic, but there was no majority decision. The Williams opinion caused widespread confusion in lower courts about substitute analyst testimony and created a split of authority among jurisdictions. The Smith decision clarifies that the use of a non-testifying analyst’s testimonial report is offered for the truth of the matter asserted when used by a substitute analyst as the basis of their opinion. Because such use of the testimonial forensic report of another is offered for its truth, it is hearsay and implicates the Confrontation Clause. In the words of the Court:
. . . [T]ruth 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. Id. at 14 (cleaned up) (emphasis in original).
Some courts have relied on Federal Rule of Evidence 703 or a comparable state evidentiary rule in support of the practice of substitute analyst testimony. Rule 703 permits an expert to offer an opinion based on facts and data that would not otherwise be admissible when the inadmissible information is used to form the basis of an opinion. According to the Court, Rule 703 did not control here. “[F]ederal constitutional rights are not typically defined—expanded or contracted—by reference to non-constitutional bodies of law like evidence rules.” Smith Slip op. at 12. The prosecution cannot circumvent confrontation rights by labeling the out of court statement (here, the forensic report) as the basis of the testifying expert’s opinion. The defendant must normally be afforded an opportunity to challenge the expert who performed the testing through cross-examination.
A substitute analyst may nonetheless be able to provide helpful testimony for the prosecution without violating the Confrontation Clause by offering evidence about typical lab practices and procedures, chains of custody, lab accreditation, standards, or by answering hypothetical questions. This kind of testimony “allow[s] forensic expertise to inform a criminal case without violating the defendant’s right of confrontation.” Id. at 18. The substitute analyst’s testimony in Smith went far beyond those kinds of permissible uses. According to the Court:
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. Id. at 18-19.
To the extent these statements were testimonial, their admission violated the Confrontation Clause and constituted error. Whether the statements from the forensic report are testimonial, however, is a separate question from whether they were offered for their truth. Generally, statements are testimonial when they are primarily made in anticipation of and for use in a criminal trial. Davis v. Washington, 547 U.S. 813, 822 (2006). Here, Arizona never raised the issue of whether the statements from the forensic report were testimonial, seemingly presuming that they were. The Court declined to decide the issue, instead remanding the case back to the state appellate division for that determination.
The Court nonetheless opined about ways the state appellate court might consider that issue. First, the state appellate court should determine what exact statements of Rast were used by Longoni at the trial. The parties disputed whether Longoni used only Rast’s notes, her report, or a mixture of the two. “Resolving that dispute might, or might then again 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, it needs to determine exactly what those statements were.” Smith Slip op. at 20-21. Further, when determining the primary purpose of the statements, the Court reminded the lower state court that not all lab records will be testimonial. “. . .[L]ab records may come into being primarily to comply with laboratory accreditation requirements or to facilitate internal review and quality control. Or some analysts’ notes may be written simply as reminders to self. In those cases, the record would not count as testimonial.” Id. at 21.
The Court therefore vacated Smith’s conviction and remanded the case for additional proceedings.
Justice Thomas wrote separately to concur in part. He agreed that the non-testifying expert’s report was being offered for the truth of the matter asserted when used as the basis of a testifying expert’s opinion, but disagreed with the Court’s directive to consider the primary purpose of the challenged statement on remand when determining whether the statements were testimonial. In Justice Thomas’s view, the testimonial nature of a statement turns on whether it was made under sufficiently formal circumstances, and not whether its primary purpose was in anticipation of a criminal prosecution.
Justice Gorsuch also wrote separately to concur in part. He too agreed with the Court’s holding rejecting the logic of the “basis of opinion” theory by which Arizona and other states have justified substitute analyst testimony. He believed that the issue of whether the forensic report and notes were testimonial was not properly before the Court and declined to join that part of the opinion. He also expressed concerns about the primary purpose test used to determine whether a statement is testimonial.
Justice Alito, joined by Chief Justice Roberts, wrote separately to concur in judgment only. According to these Justices, Longoni’s testimony crossed the line between permissible basis of opinion testimony and inadmissible hearsay, thus raising a confrontation problem. They would have resolved the case on that narrow ground, without reaching the wider constitutional question of the use of substitute analysts generally.
Phil Dixon previously blogged about Smith v. Arizona and its potential implications for North Carolina criminal law, here.
Ban on gun possession under 18 U.S.C. § 922(g)(8) by a person subject to a qualifying domestic violence protective order is valid under the Second Amendment as the prohibition is sufficiently similar to historical analogues
United States v. Rahimi, 602 U.S. __ (2024). In 2020, a Texas restraining order was issued against Zackey Rahimi based on evidence that he assaulted his girlfriend and fired a gun in her general direction as she fled. Rahimi agreed to the entry of the order. Police suspected that Rahimi violated the protective order by attempting to contact his girlfriend; assaulted another woman with a gun; and participated in five other incidents in which he fired a handgun at or near other people. Based on their suspicions, officers obtained a search warrant for Rahimi’s house and found two firearms and ammunition.
Rahimi was charged with violating 18 U.S.C. § 922(g)(8). That statute makes it a crime for a person to possess a gun if the person is subject to a qualifying domestic violence protective order. Specifically, the order must be “issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate”; it must “restrain[] such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or . . . plac[ing] an intimate partner in reasonable fear of bodily injury to the partner or child”; and it must either (1) “include[] a finding that such person represents a credible threat to the physical safety of such intimate partner or child” or (2) “by its terms explicitly prohibit[] the use, attempted use, or threatened use of [injurious] physical force against such intimate partner or child.” The protective order against Rahimi fell within the scope of the statute.
Rahimi moved to dismiss, arguing that Section 922(g)(8) was facially invalid under the Second Amendment. The motion was denied, and he pled guilty and appealed to the Fifth Circuit. A three-judge panel ruled against him. He petitioned for rehearing en banc, and while his petition was pending, the Supreme Court decided New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), which adopted a new approach to Second Amendment analysis. Rather than the “intermediate scrutiny” test that most lower courts had followed, the Supreme Court instructed that regulations burdening the Second Amendment’s right to bear arms were presumptively invalid and could be sustained only if historical analogues existed at or near the time of ratification, because that would show that the original public understanding of the Second Amendment, and the nation’s history and tradition of gun regulations, was consistent with the type of regulation at issue.
In light of Bruen, the Fifth Circuit withdrew its prior opinion and assigned the case to a new panel. The new panel ruled for Rahimi, finding that the various historical precedents identified by the government “falter[ed]” as appropriate precursors. The government petitioned for certiorari and the Supreme Court granted review.
Chief Justice Roberts wrote for the majority. He emphasized generally that a historical analogue need not be a “twin” of the challenged regulation and suggested that some lower courts had “misunderstood the methodology” used in Bruen. He explained that the requisite historical inquiry is “not meant to suggest a law trapped in amber” and that “the Second Amendment permits more than just those regulations identical to ones that could be found in 1791.”
Turning specifically to Section 922(g)(8), the Chief Justice found that section was sufficiently similar to two historical analogues. The first were so-called surety laws, which “authorized magistrates to require individuals suspected of future misbehavior to post a bond. If an individual failed to post a bond, he would be jailed. If the individual did post a bond and then broke the peace, the bond would be forfeit.” These surety laws “could be invoked to prevent all forms of violence, including spousal abuse.” The Chief Justice concluded that they therefore shared a common purpose with Section 922(g)(8).
The second set of analogues were what the Chief Justice described as “going armed” laws, like North Carolina’s law against going armed to the terror of the public. These laws prohibited people from arming themselves with dangerous weapons and going about in public while frightening others. According to Blackstone, the law punished these acts with “forfeiture of the arms . . . and imprisonment.” 4 Blackstone 149. For the Chief Justice, these laws shared a similar motivation with the statute under consideration – controlling the risk of violence – and did so through a similar means, namely, disarmament.
Considering these precedents plus “common sense,” the Chief Justice summarized that:
Section 922(g)(8) applies only once a court has found that the defendant “represents a credible threat to the physical safety” of another. That matches the surety and going armed laws, which involved judicial determinations of whether a particular defendant likely would threaten or had threatened another with a weapon. Moreover, like surety bonds of limited duration, Section 922(g)(8)’s restriction was temporary as applied to Rahimi.
The Court therefore rejected Rahimi’s facial challenge and affirmed his conviction. Several Justices wrote concurrences, and Justice Thomas, the author of Bruen, dissented.