Navigating Testimonial Hearsay
This webpage is intended to make you aware of a recent decision by the United States Supreme Court that impacts practices nationally in public and private forensic laboratories concerning expert testimony from forensic scientists. We are encouraging you to share this communication with district attorneys, prosecutors, or courts who have any questions about NMS Labs testing or testimony in light of this decision.
Jump to
- Background to Smith v Arizona
- What Smith v Arizona Means and Does Not Mean
- Key Language from Supreme Court Justice Kagan’s Opinion
- External Accreditation and Quality Standards at NMS Labs
- Client Resources
- Additional Information from NMS Labs
- Still Have Questions?
Background to Smith v. Arizona
By now, all of you have likely been affected by the United States Supreme Court’s ruling in Smith v. Arizona, Supreme Court Docket No. 22-899, decided on June 21, 2024. The Smith decision follows the Court’s prior decisions in Williams v. Illinois, Bullcoming v. New Mexico, Melendez-Diaz v. Massachusetts, and Crawford v. Washington, the latter of which was decided in 2004. Each of these decisions set forth guidance and parameters relating to an accused’s right to confront witnesses in criminal proceedings under the rights granted by the Sixth Amendment to the U.S. Constitution.
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What Smith v. Arizona Means and Does Not Mean
NMS Labs has always respected and serviced our clients’ obligations and needs to the best of our ability. We recognize that each judge, attorney, and client is diligently working for legal resolution of questions related to “testimonial hearsay” as raised in Smith. Reports from published and unpublished court opinions, and conversations with scientific colleagues across the country, and NMS Labs’ own scientific personnel indicate the Smith decision is being read as an absolute prohibition on substitute or surrogate analyst testimony. The decision is also being construed to require the appearance and testimony of everyone in the testing chain. The Smith v. Arizona decision simply does not so state. Smith bars the admission of “testimonial hearsay,” meaning if a substitute witness relies on notes, reports, and related documents that are prepared with a focus for the court, or are reasonably anticipated to be admitted in court, such hearsay is disallowable “testimonial hearsay.” Over the last six weeks since the release of the decision, NMS Labs has consulted with other legal and scientific stakeholders and has developed an analysis, strategy, and resources to support you in your efforts to continue your work with the least possible disruption.
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Key Language from Supreme Court Justice Kagan’s Opinion
In Justice Kagan’s opinion in Smith, on pages 19-22, she unequivocally states that “not all laboratory reports are necessarily testimonial.” The opinion states that trial courts should consider the whole range of record-keeping activities of lab analysts. “Some records may not have an evidentiary purpose, such as those created to comply with accreditation requirements or facilitate internal review and quality control.” In those circumstances, the records are not testimonial. If notes, reports, and records on which the surrogate witness relies are not “testimonial,” then the surrogate witness can rely on those records, formulate an independent opinion, and testify. Provided this guidance from the court is followed, then a toxicologist or chemist who has independently reviewed the original data and records can provide their opinions as to the conclusions of the analysis.
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External Accreditation and Quality Standards at NMS Labs
Some of NMS Labs reports do end up in court, but NMS Labs does not perform its world leading quality work “with a focus on court.” Our accreditations, certifications, and federal and state licensing credentials provide the gold standard on which we base our testing. Those external systems inform the drafting and implementation of NMS Labs’ standard operating procedures, quality control measures, and systems for quality management and their continuous quality improvement. Our level of quality and excellence in receiving, processing, preparing, testing, and reporting processes and conclusions inform and drive the work of NMS Labs in clinical, forensic, and environmental testing alike. NMS Labs primary purpose is to maintain the integrity of the scientific processes and results in all fields of testing, and the primary purpose for every single decision and supporting record is adherence to the highest scientific and quality management standards.
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Client Resources
NMS Labs now has documentation that follows the Smith opinion’s specific guidance in identifying the precise, exact processes from which statements are produced in NMS Labs’ testing. This resource identifies and links those specific and precise statements to accreditation and other standards, quality measures, and performance requirements that provide our foundational primary purposes for our testing intake, processes, and results. It is available by request. Click here to complete the form below to request this resource.
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Additional Information from NMS Labs
NMS Labs has hosted multiple online events to share more about the Smith v Arizona ruling and its impact on forensic stakeholders by discussing how the decision applies to forensic testing and the proposed framework of linking steps in the testing process to quality practices, accreditation, and licensing standards, a process desired to satisfy the “primary purpose” condition. If you would like to access the recordings of past events or be invited to future virtual events about the Smith v Arizona option, click the link below.
Still Have Questions?
NMS Labs is working hard to ensure a reliable foundation for the admissibility of our testing processes and results in your courtrooms. Please continue to reach out to your usual contacts at NMS Labs with any questions about our processes or submit your question(s) online.
Contact us to learn about how we can help
Complete the form to request resources that can be used to talk with attorneys, courts, and supervisors about the NMS Labs way and primary purpose.