SMITH v ARIZONA: Is a Sea Change Coming in Forensic Lab Testimony?

Today’s guest blog is written by Karra Porter, Christensen & Jensen, P.C., Intermountain Forensics. Reposted from the ISHI Report with permission.


On January 10, the Supreme Court heard oral argument in a case with a familiar fact pattern:

  • Crime lab Analyst performs tests, prepares notes, and issues a report
  • By the time of trial, Analyst no longer works at the lab
  • Prosecutors designate substitute Witness from the same lab who did not participate in the original testing or review
  • Witness states opinion based on review of Analyst’s lab notes and report
  • Defendant is convicted


In Smith v. Arizona, the Supreme Court will decide whether this is constitutional. Specifically, does this scenario violate the “Confrontation Clause” of the Sixth Amendment? While the testing in Smith was of alleged controlled substances, the parties agree that the court’s ruling will apply to DNA labs.



The Confrontation Clause guarantees a criminal defendant the right “to be confronted with the witnesses against him.” It generally entitles the defendant to in-person cross-examination of testimonial evidence unless (1) the witness is unavailable and (2) the defendant had a prior opportunity for cross-examination.


The Confrontation Clause is robust. In 2020, for example, the Michigan Supreme Court overturned a rape conviction because a DNA analyst was permitted to testify by video instead of in person¹. The Supreme Court has overturned a drug conviction where a forensic lab report was introduced at trial², and where a witness testified based solely on another analyst’s sworn report.³


On the other hand, the court allowed a DNA analyst to testify about a coworker’s report when testing was for the purpose of capturing an unknown rapist.⁴ The primary purpose of the report was not to accuse a specific person or create evidence for trial. No one at the lab could have known that the profile produced would match the defendant, the court noted, and the generation of a DNA profile can rule out as well as implicate.


In Smith v. Arizona, the defendant had already been arrested and charged when lab testing was requested. If the original analyst’s notes and report were kept from the jury, the prosecution had no evidence that the substances tested were methamphetamine and marijuana. At trial, defense counsel said they could not effectively cross-examine the substitute witness because he had no knowledge of the testing. How exactly were the tests performed? Were they even performed?⁵ The witness’s testimony violated the Confrontation Clause, counsel insisted.


Arizona courts rejected the defendant’s contentions, but the Supreme Court agreed to hear the case. Smith v. Arizona is expected to provide guidance to courts, laboratories, prosecutors, and defense lawyers. Whether the ruling will be a major transformation of forensic testimony or a minor correction depends on who is arguing.


Numerous organizations filed amicus curiae (friend of the court) briefs supporting the defense or prosecution. In their briefing, for example, 38 state attorneys general predicted that barring this type of testimony would have “devastating consequences” for the justice system.⁶ The California Public Defenders Association disagreed, arguing that similar limitations already exist in California and elsewhere, and “the sky has not fallen.”⁷


Much of the briefing discusses the impact of potential limitations. Defense-side briefs argue that, if the original analyst is not available, labs can retest. Or someone else who participated might testify. Or pretrial depositions could be arranged. Some states have adopted “notice and demand” procedures, they note. Under these provisions, defendants declare in advance whether they demand live testimony, which defendants often waive for strategic reasons.


Prosecution-side briefs point out that retesting is not always feasible, especially with DNA and other limited samples. And are labs expected to produce a witness for every stage of the process? Notice and demand procedures do not answer these questions, they say, and can create administrative hurdles and expense.


These are critical issues. Lab personnel are busy. They change jobs, relocate, or even pass away. So when can substitute witnesses be used, and what can they say? That is the question for the court.


During the Smith oral argument, Supreme Court justices seemed interested in whether the original analyst’s report and notes constituted testimonial evidence. (If evidence is not “testimonial”, the Confrontation Clause does not apply and other witnesses can testify about it.)


There was general agreement that the current standard for whether a statement is “testimonial” is its primary purpose. Was the statement made for the purpose of establishing or proving some fact, or with the expectation that it might be used in a prosecution? If so, then it is likely testimonial, and it cannot be presented to a jury as true unless the original maker of the statement is made available.


In Smith, the original testing request mentioned the defendant’s name, pending charges, and upcoming trial. The analyst’s report was three typewritten pages, on Department of Public Safety letterhead, and signed. It was provided to the defense in discovery. Most justices seemed persuaded that the report was testimonial.


But what about the analyst’s notes? There was no unanimity. On behalf of the Department of Justice, the Solicitor General argued that whether lab notes are testimonial depends on how and why they are prepared. Were they created for incorporation in an official report? If so, they might be testimonial and the original analyst might have to be present if prosecutors want a jury to hear their contents. Were the notes prepared for a routine internal review? If so, perhaps they are not testimonial and another witness can testify about them.


“[F]or a lot of forensic science, there are accreditation requirements that require that notes be gathered and made so that they can do, for example, reviews of whether you’re following accreditation provisions,” the Solicitor General pointed out.⁸ Notes prepared for accreditation purposes would probably not be testimonial, she concluded, and another witness could discuss them at trial.


The Solicitor General acknowledged that Arizona courts might have erred in allowing the substitute witness to essentially parrot the original analyst’s statements. But she urged the Supreme Court not to announce a rule that ignores the realities of how forensic labs work.


“Few experts do their work completely alone – personally calibrating every machine, personally shepherding every sample around the lab, and personally performing every mechanical task,” the Solicitor General’s brief observed. “Instead, experts necessarily rely on work by others, be it treatises and studies, accepted standards for laboratory procedures, or data produced by running a sample through a machine.”⁹


At oral argument, the Solicitor General described a different approach that would have passed constitutional muster in the Smith case:

  • Substitute Witness testifies to his ultimate conclusion (substance was meth)
  • Witness identifies any non-testimonial information reviewed, such as graphs and computer-generated data
  • Witness testifies what lab would typically do with similar samples, in accordance with lab or industry standards
  • Defense cross-examines Witness as to lack of knowledge of what was actually done¹⁰


The Supreme Court might adopt, adapt, or reject the Solicitor General’s suggestion. Its decision could have a significant impact on forensic labs. The American Society of Crime Laboratory Directors warns of a potential “sea change” with “no logical stopping place”.¹¹ The National District Attorneys Association urges against a rule that would “discourage laboratories from efficient and multi-analyst interactive approaches, which are part of the nature of scientific inquiry, and help ensure better scientific outcomes overall.”¹²


These risks are overstated, according to organizations such as the National Association of Criminal Defense Lawyers and the American Civil Liberties Union. In any event, they say, the Constitution trumps administrative burdens.


A final note: One complication is that prosecutors did not dispute below that the analyst’s report and notes were testimonial. That could allow the court to avoid the broader issues for now, instead overturning the conviction on case-specific grounds. The court’s ruling is expected in the next few months.








  1. People v. Jemison, 505 Mich. 352, 952 N.W.2d 394 (2020)
  2. Melendez-Diaz v. Massachusetts, 557 US 305 (2009)
  3. Bullcoming v. New Mexico, 564 US 647 (2011)
  4. Williams v. Illinois, 567 US 50 (2012)
  5. Several defense-side briefs raised the specter of laboratory fraud, negligence, and bias, citing various lab-related scandals.
  6. Brief of Colorado, Oklahoma, 36 Additional States, 1 Territory, and 1 Federal District as Amici Curiae in support of Respondent, p. 13.
  7. Brief of the Alameda County Public Defender and California Public Defenders Association as Amicus Curiae in Support of Petitioner, p. 11.
  8. Smith v. Arizona, No. 22-899, January 10, 2024, oral argument transcript p. 51.
  9. Brief for the United States as Amicus Curiae Supporting Neither Party, p. 8.
  10. Smith v. Arizona oral argument transcript, pp. 35-36.
  11. Brief of Amici Curiae American Board of Forensic Toxicology, American Society of Crime Laboratory Directors, Association of Forensic Quality Assurance Managers, Center for Forensic Science Research and Education, International Association of Coroners and Medical Examiners, National Association of Medical Examiners, and Society of Forensic Toxicologists in Support of Respondent, p. 3.
  12. Brief of Amici Curiae National District Attorneys Association and Forty-One Prosecuting Attorney Associations, Councils and Government Entities in Support of Respondent, p. 3.