Substitute Analyst Testimony and Smith v. Arizona

I mentioned in a recent News Roundup that the U.S. Supreme Court granted review in Smith v. Arizona. The case tees up a question that has been lingering since at least 2012: Does the Confrontation Clause permit the admission of substitute forensic analyst testimony? This issue arises when a forensic report is prepared for use in a criminal case, but the testing analyst is not available for trial. Instead of admitting the report through the original analyst, the State calls a different expert—one not necessarily involved in the original testing—to offer an opinion about the accuracy of the report. North Carolina generally allows such testimony, but there is a split among jurisdictions on the issue. Smith has the potential to alter the legal landscape here and elsewhere regarding the use of substitute analyst testimony, so today’s post dives into the legal issues and potential impact of the case. Background. Forensic reports prepared in anticipation of prosecution are testimonial and subject to the Confrontation Clause. Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). A forensic report subject to the Confrontation Clause may not be simply read to the jury by a surrogate witness. Bullcoming v. New Mexico, 564 U.S. 647 (2011); State v. Craven, 367 N.C. 51 (2013). This means that the prosecution must produce the testing analyst at trial in order to admit a forensic report, subject to some important exceptions. One common exception is so-called “notice and demand.” If the prosecution provides timely written notice of intent to admit a forensic [...]