A case being argued at the U.S. Supreme Court in January could change how forensic evidence is admitted in courtrooms, according to a report produced by the Forensic Technology Center of Excellence with funding from the National Institute of Justice, which highlighted the report. According to SCOTUSblog, the case, Smith v. Arizona, will be heard on January 10.
It’s well-established that defendants have a constitutional right to confront those who testify against them. But this case asks whether a “substitute expert” can testify in place of a case’s original forensic analyst.
Defendant Jason Smith was arrested in Yuma, Arizona, and charged with several drug offenses. But Elizabeth Rast, the forensic scientist who had tested the evidence, left her job at the Arizona Department of Public Safety before Smith’s trial. So, prosecutors called to the stand a different DPS crime-lab forensic scientist, Greggory Longini – who testified that Smith had possessed contained methamphetamine, marijuana and cannabis. Longini based his testimony on Rast’s case notes, notes not entered into evidence at trial.
In 2021, a jury found Smith guilty of possession of marijuana for sale and possession of methamphetamine, cannabis and drug paraphernalia. Smith’s defense cried foul, saying that Smith was denied his rights to cross-examine according to the Confrontation Clause of the Sixth Amendment.
According to the Forensic Technology Center brief, the ruling in this case is expected to provide “a broader understanding of what is permissible relative to the Confrontation Clause.” The brief suggests that if the original analyst is not available, one option is that the substitute witness could retest the evidence, though that could difficult, depending on backlogs, wait times and costs for a new report, which can range “from $66 to $17,971 depending on discipline and laboratory,” the brief notes.
The situation seen in Yuma may not be uncommon, since retention of forensic scientists is a challenge for criminal-justice agencies, the brief notes. Though bringing in the original analyst to testify would satisfy the Confrontation Clause, that could mean subpoenaing that analyst and reimbursing them for travel, lodging and meals. One option may be virtual testimony.
The brief makes several suggestions to forensic analysts, including asking themselves, if they are called to testify based on other experts’ notes, “what language is appropriate to convey the limitations of my testimony and scope of my findings?” Or, looking at reports being produced now, “could another examiner, using my notes, form an independent conclusion?”