Sometimes an analyst who did not perform the test may offer an independent opinion. But the prosecution cannot avoid the Confrontation Clause simply by having that analyst repeat an absent analyst’s statements as the “basis” for an opinion when those statements support it only if true. Under Smith v. Arizona, the first question is whether the statements are being used for their truth. If so, the next question is whether the particular statements are testimonial; Smith did not decide that question for the lab notes in its own case. (Smith v. Arizona)
Trace what each analyst did
The report’s signature page may not tell the whole story. Counsel can compare who collected the sample, performed each test, reviewed controls, interpreted results, and prepared the report with what the trial witness is expected to say. Separate the substitute’s own work and conclusions from any case-specific statements made by a person who will not testify.
For each disputed statement, ask whether it is being offered only to explain how the test witness formed an opinion, or whether the opinion depends on the statement being accurate. Smith rejected the idea that calling another analyst’s assertions an expert “basis” automatically makes their use nonhearsay when the assertions matter only if true. The Court separately explained that a statement must be testimonial before the Confrontation Clause’s witness protections apply. It left testimonial status of the particular statements in that case unresolved. (Smith v. Arizona)
If a statement is testimonial, the prosecution generally cannot introduce it through a surrogate in place of the declarant unless the declarant is unavailable and the accused had a prior opportunity for cross-examination. Whether the specific lab statement is testimonial depends on its circumstances and purpose. Smith does not hold that every lab note, report entry, or machine output is testimonial. Nor does it hold that a substitute analyst can never testify.
Review the actual record, not just the report conclusion
Gather the complete lab report and notes, test data, chain-of-custody material, identities and roles of the analysts, the prosecution’s witness list, and any description of the proposed testimony. Note which analyst made each assertion and whether that person testified or was previously cross-examined. Counsel can then identify the exact statements, their proposed use, and any objection and ruling for the trial record.
Do not treat raw machine-generated output and a human analyst’s assertion as interchangeable; the legal analysis depends on what the evidence is and how it is used. An objection also does not guarantee exclusion or dismissal. The trial court evaluates the actual evidence and record, and any appellate remedy would depend on the legal ruling and its effect.
The Law Offices of David S. Chesley represents people facing California drug charges. Call (800) 755-5174 to discuss lab evidence and the proposed trial testimony.