On June 21, 2024, the Supreme Court issued an important decision in Smith v. Arizona. This is a good opinion; you should know about it if you don’t already. If you’d like to join an informal discussion of this case and its importance for NC defenders, Phil Dixon and I will be talking about it on the IDS Forensic Education Series on July 18 at 3 pm. Registration is available here if you aren’t already signed up for the forensic webinars.
Way back in 2013, the Supreme Court of North Carolina issued its decision in State v. Ortiz-Zape, holding that substitute analysts in drug cases can testify about the identity of substances in drug cases as long as they form an independent opinion under Evidence Rule 703 based on materials prepared by a non-testifying analyst. In other words, the Court ruled that those circumstances do not violate the Sixth Amendment Confrontation Clause.
Fast forward to last Friday. The Supreme Court of the United States issued its decision in Smith v. Arizona that – in my view – rejected the approach described above in Ortiz-Zape. The Court reaffirmed that the Sixth Amendment Confrontation Clause “applies in full to forensic evidence.” The Court then held that allowing substitute analysts to convey the opinions of non-testifying analysts would make its previous decisions in Melendez-Diaz and Bullcoming “a dead letter, and allow for easy evasion of the Confrontation Clause.” According to the Court, evidentiary rules – like Rule 703 – “do not control the inquiry into whether a statement is admitted for its truth” for purposes of analyzing a potential Confrontation Clause violation. The Supreme Court found that the out-of-court statements by the non-testifying analyst made, and that the substitute analyst relied on, were admitted for their truth. The Court then remanded the case back to the lower courts for a determination of whether the non-testifying analyst’s statements were testimonial.
I encourage those of you handling drug cases in trial court to read the Smith v. Arizona opinion carefully and then do the following:
- If the State notifies you under NCGS 90-95(g) (or any other notice-and-demand statute) that it intends to submit the written lab report into evidence without the testimony of the analyst, file a written objection at least five business days before trial as required by that provision.
- If the State presents opinion testimony from an analyst who did not perform any tests on the substance (in other words a “surrogate” or “substitute” analyst), object under the confrontation clauses of the Sixth Amendment and Article I, Section 23 of the NC Constitution.
- Be sure to object to any other non-scientific testimony identifying the substance as a controlled substance. This if often inadmissible lay opinion testimony from investigators or confidential informants. It could be, for example, testimony from an informant who says he received cocaine from your client during a controlled buy, an officer who testifies that your client had “methamphetamine smoking devices” on his person, or an investigator who identifies the substance that your client had as heroin based on a visual examination of the substance. Remember that under State v. Ward, 364 N.C. 133, 144 (2010), “a scientifically valid chemical analysis of alleged controlled substances is critical to properly enforcing the North Carolina Controlled Substances Act.” As the Court of Appeals explained in 2017, “[i]dentification of controlled substances by visual inspection by a layperson is insufficient and identification testimony should rely on chemical analysis.” State v. Alston, 254 N.C. App. 90, 92 (2017).
- Even if a judge rules against you during a voir dire hearing outside the presence of the jury, you must still object IN FRONT OF THE JURY at the moment the State offers the opinion in the form of the witness stating the opinion and in the form of a written report. Always remember that objections made during a voir dire hearing do not preserve objections for appeal. The objection must be made with a basis stated in front of the jury for it to be preserved. Objecting in front of the jury to the witness stating their opinion, but then failing to object to admission of the written report waives the first objection. Objections must be made every time the State seeks to introduce the opinion.
For additional information, please see the School of Government’s case summary for Smith v. Arizona. Please also see this pleading, which makes an argument about the case in an appeal that is currently pending. In the coming weeks, I believe there will be a separate post on the School of Government’s Criminal Law Blog providing more analysis and reaction. In the meantime, you can find another blog post on the decision here.