Smith v. Arizona and the Right to Cross-Examination: Can You Convict Someone Without the Testing Analyst Testifying?

Recently I was asked to help draft an amicus brief in the case of Smith v. Arizona, in the United States Supreme Court, on behalf of the National College for DUI Defense. I was the primary writer on the scientific issues in the brief. The case addresses our right to confront the witnesses presenting evidence against us, and the introduction of forensic evidence. As described below, the law currently allows a defendant to be convicted through the testimony of an expert who has done nothing more than read the paperwork prepared by another analyst who performed the testing and forming an “independent opinion” as to the test results. As set out below, laboratory paperwork cannot always be trusted, and this practice needs to end.

The Confrontation Clause and Laboratory Results

The Confrontation Clause is part of the Sixth Amendment of the United States Constitution. The relevant portion states: “In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him…” Sounds simple, right? No one can present evidence against you unless you (through your lawyer) have the opportunity to cross-examine them.

But the Clause doesn’t just apply to witnesses on the stand at trial. Our Court has specifically held that the right applies when “the prosecution [seeks] to introduce a forensic laboratory report…The accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.” Bullcoming v. New Mexico, 564 U.S. 647, 652, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011).

So, this all seems pretty clear. If the government wants to introduce evidence against you they must call the person who created it as a witness, or that person must be unavailable, and you must have had a chance to cross-examine them in the past. However, this application of the Clause to laboratory evidence has created challenges for the prosecution, and our Supreme Court stepped in to make it easier for them to introduce that evidence.

The Court messed up this nice, orderly, application of the Confrontation Clause in a case called Williams v. Illinois, 567 U.S. 50, 132 S. Ct. 2221,183 L. Ed. 2d 89 (2012). In Williams a DNA sample was collected from a rape victim, and the swab was sent to another state for testing. That testing produced a DNA profile of the rapist. The rapist’s profile was sent back to Illinois, where it was entered into a computer database, and it matched Williams. His DNA had been collected when he was arrested for an unrelated crime a few months earlier.

At trial the prosecution did not call the analyst who tested the Victim’s sample and created the DNA profile. They only called the analyst who tested Williams’ DNA from the earlier arrest. She testified that she had reviewed the absent analyst’s results, and they matched Williams.

This clearly violated the Supreme Court’s holding on the Confrontation Clause announced in Bullcoming. The analyst who tested the Victim’s swab and created evidence used against the defendant wasn’t called as a witness against him. While no one has the slightest bit of sympathy for a rapist, the Court’s previous cases required that “particular scientist” to be called as a witness.

Justice Alito disagreed, however, holding that, “Out-of-court statements that are related by the expert solely for the purpose of explaining the assumptions on which that opinion rests are not offered for their truth and thus fall outside the scope of the Confrontation Clause.” 567 U.S. at 57-58.

In other words, the evidence wasn’t introduced because it was true; it was only introduced because it was the basis for the testifying analyst’s opinion that Williams’ DNA profile matched the DNA profile created by the absent analyst. If you think that it makes no sense to introduce statements unless they “are offered for their truth,” you aren’t alone. In her dissent, Justice Kagan blasted this logic, saying: “[W]hen a witness, expert or otherwise, repeats an out-of-court statement as the basis for a conclusion…the statement’s utility is then dependent on its truth. If the statement is true, then the conclusion based on it is probably true; if not, not…. That is why the principal modern treatise on evidence variously calls the idea that such ‘basis evidence’ comes in not for its truth, but only to help the factfinder evaluate an expert’s opinion ‘very weak,’ ‘factually implausible,’ ‘nonsense,’ and ‘sheer fiction.’” 567 U.S. at 126–27 (Kagan, J. dissenting).

Williams is an unusual case because it is a per curium decision, meaning less than five of the nine justices agreed on the result. But in Williams, Justice Alito wrote the “majority” decision, with Justices Roberts, Breyer and Kennedy joining in. Justice Thomas wrote a concurring opinion saying he thought Justice Alito got the result right, but for the wrong reasons. Justice Kagan wrote a dissent, joined by Justices Scalia, Ginsburg and Sotomayor. Thomas and the dissenting Justices all rejected the idea that out-of-court statements can be admitted as the basis of an expert’s testimony without establishing that they are true.

So, we had a non-binding opinion that the results were admissible without the government having to call the absent analyst, for reasons that a majority of the Supreme Court rejected. This left the law as clear as mud. This was the state of the law when the Smith v. Arizona case was argued to the Supreme Court.

The Future of the Confrontation Clause:

Smith v. Arizona, United States Supreme Court Case No. 22-899

Mr. Smith was charged with five drug-related offenses. Evidence seized from him was sent to the Arizona Department of Public Safety for testing. The analyst who performed the testing had left DPS by the time Mr. Smith’s trial took place. A substitute analyst testified to his “independent opinions” about the results of the testing performed by the absent analyst.

Once again, this is a clear violation of the Court’s previous rulings. (“The accused’s right is to be confronted with the analyst who made the certification…[and] to cross-examine that particular scientist.”). But the question in the Smith case is whether it was permissible to prosecute Mr. Smith without calling the analyst who performed the testing, in light of the Williams case.

The state, unsurprising, argued that there was nothing inappropriate in the way the evidence was introduced, and that the Court should affirm the trial court’s ruling. The state’s argument time, however, was split between the prosecutor representing the state, and the Office of the Solicitor General of the United States, who filed an amicus brief “supporting neither party.”

It became clear immediately that the Solicitor General was not in lockstep with the state when he began his argument by saying: “We agree with Petitioner that [the testifying analyst’s] testimony here may have gone too far,” and later “if the Court wanted to narrowly reverse this case, we think this is a much easier case than a case that we think would follow scrupulously under the federal rules.”

So, both the United States Government and the defense agree that the court got it wrong in the Smith case. Based on the questions asked by the justices, it appears likely that the Court may agree, and that we will return to the law as it existed before the Williams case.

The Big Problem with the Court’s Analysis:

You Can’t Form an “Independent Opinion”

by Reading the Results of Someone Else’s Laboratory Work

Lost in all of the analysis set out above is the fact that you can’t actually form an independent opinion based on laboratory testing performed by someone else. You can look at the result and see what it says. You can assume that the analyst who performed the work did everything correctly. You can either accept that the printed results are accurate and that the testing was performed correctly, because the paperwork looks like the analyst followed the laboratory’s procedures, or not. But you can’t make an independent determination just by looking at the paperwork. And experience has shown that laboratory results are not always trustworthy.

Cross-examination can and does expose errors in how testing was performed, and mistakes made by the analysts. That, after all, is why the Confrontation Clause requires that a defendant has the right to confront the witnesses against him through cross-examination. But beyond that, there are times the paperwork produced by the laboratory is simply unreliable, or worse yet, fraudulent.

In June 2011, the same month this Court decided Bullcoming, a lab supervisor in Boston, Massachusetts discovered that approximately ninety samples had been removed from an evidence locker without authorization, in violation of the laboratory’s protocol. Based on an informal investigation, laboratory supervisors concluded that analyst Annie Dookhan was responsible. Ultimately, Dookhan admitted that she had been “drylabbing” (reporting test results when no testing was performed) and changing test results by converting “negatives to positives” for two to three years. The lab “estimated [Dookhan] to have been involved in testing samples in over 40,000 cases.” On November 22, 2013 Dookhan plead guilty to twenty-seven criminal charges, and was sentenced to a term of three to five years in prison.

While it was initially thought that Dookhan was a lone bad actor in the lab, during the course of the ensuing investigation the State Inspector General “referred at least three more Hinton Lab chemists or supervisors…for alleged misconduct — including falsely labeling substances illegal drugs when they weren’t, spiking samples with illegal drugs or lying to investigators.” “The investigation also revealed that Dookhan falsified another chemist’s initials on reports that were intended to verify the proper functioning of the machine used to analyze the chemical composition of certain samples (gas chromatography-mass spectrometer machine or “GC–MS”), and she falsified the substance of reports intended to verify that the GC–MS machine was functioning properly prior to her running samples through it.” Com. v. Scott, 467 Mass., 336, 339–40, 5 N.E.3d 530, 536. (2014).

On January 17, 2013, an analyst attempting to match drug analysis certificates to corresponding samples discovered missing samples in two cases. She determined the samples had been tested by an analyst named Sonja Farak. An investigation lead to Farak’s arrest, and a Massachusetts judge charged with investigating the matter concluded that: “from 2004 until January 18, 2013, Farak was, on almost a daily basis, [was] under the influence of narcotics, and at other times was suffering the effects of withdrawal…those narcotics included, but were not necessarily limited to, methamphetamine, amphetamine, phentermine, ketamin, MDMA, MDEA, LSD, and cocaine…Farak’s use of narcotics while at the lab caused her, at unknown times, to experience hallucinations and other visual distortions, to experience what she described as “ridiculously intense cravings,” to feel like her mind was racing, and to take frequent breaks from work to use drugs…by at least late 2009, and possibly earlier, until her arrest in January 2013, Farak regularly stole, tampered with, and used police-submitted cocaine samples.”Commonwealth v. Cotto, No. 2007770, 2017 WL 4124972, at *10 (Mass. Super. June 26, 2017).

Farak tested nearly 10,000 drug samples. On January 6, 2014, Farak plead guilty to ten felony charges and was sentenced to two and a half years in prison. During an investigation following Farak’s conviction, it was discovered that: “[C]hemists were not required to run “blanks” between each GCMS test in order to clean the testing equipment.… The failure to decontaminate the GCMS after every test would frequently result in “carry over” or residue remaining from the previous tests, which would have to be distinguished by the individual chemists. Id. at *3.

Dookham’s fraud went on for years and affected tens of thousands of cases in part because no one could tell from the notes and test results that she produced that she wasn’t actually testing samples. Nor could anyone tell that the GCMS (the same instrument reportedly used in Mr. Smith’s case) hadn’t been verified to be working properly when testing was performed, because, on its face, the paperwork appeared to show that all required procedures had been followed. An analyst, such as the testifying analyst in Mr. Smith’s case, would have had no difficulty reviewing her reports and reaching an “independent conclusion” that matched Dookhan’s printed conclusions, despite the fact she never performed the testing at all. Nor would he have had difficulty reaching such a conclusion regarding work performed by her supervisors where they falsely reported test results or spiked sample with drugs.

Similarly, Farak’s malfeasance – including consuming the samples she was paid to examine, altering records regarding the weight of samples she received, and working while hallucinating – affected nearly 10,000 samples, and also went on for years, again because there were no issues with the printed records and test results she produced on their face. A surrogate analyst such as the testifying analyst in Smith would feel entirely comfortable testifying to the altered weights and work performed by an actively-hallucinating-drug-addict, because the paperwork looked good at face value. Nor would he have had any qualms reaching an independent decision agreeing that the result was not the product of carryover, because the paperwork never disclosed that the person performing the testing was impaired to the point of experiencing “visual distortions” when making such determinations.

Time will tell what the Court is going to do in the Smith case. But hopefully the Court will return to a rule that requires that the analyst who performed the testing must be brought into court to be cross-examined before their test results are admissible, so that no one else is convicted on the basis of fabricated laboratory results.

About the author:

Joseph P. St. Louis is certified as a Specialist in both Criminal Defense (Arizona State Bar, 2000 to present) and in DUI Defense (National College for DUI Defense, a certification recognized by the American Bar Association, 2012 to present). Mr. St. Louis is AV® Preeminent Peer Review Rated by Martindale-Hubbell® and has been listed in Woodward/White’s Best Lawyers in America in the DUI specialty area since 2013. He has been named to the Best Lawyers in Arizona and New Mexico by Super Lawyers magazine in the DUI specialty area since 2009 and was named one of the Best Lawyers in Tucson in the DUI specialty area by Tucson Lifestyle Magazine since 2013.

Mr. St. Louis has tried over 200 cases to juries, on both misdemeanor and felony charges, in federal court and in state courts throughout Arizona. He has also argued cases before the Arizona Court of Appeals, the Arizona Supreme Court, and the Ninth Circuit Court of Appeals.