An Update on Substitute Expert Testimony: Smith v. Arizona and its Progeny by Mike Varone, J.D.On June 21, 2024, the United States Supreme Court released Smith v. Arizona, holding “[a] state may not introduce the testimonial out-of-court statements of a forensic analyst at trial, unless she is unavailable and the defendant has had a prior chance to cross-examine her . . . . Neither may the state introduce those statements through a surrogate analyst who did not participate in their creation.” Smith v. Arizona, 602 U.S. 779, 802 – 03 (2024). In so deciding, the Supreme Court sought to provide much needed guidance regarding the constitutionality of “substitute” expert testimony. However, two years later, Smith’s legacy remains uncertain, as courts across the country struggle to unpack three questions Smith left unresolved: 1) what does it mean to “introduce” a statement; 2) what statements are “testimonial; and 3) who “participate[d] in their creation?” First, and perhaps most significant, jurisdictions disagree over whether Smith merely prohibits an expert from relaying testimonial hearsay to the trier of fact or if it prohibits experts from relying on testimonial hearsay at all, even if that hearsay basis is not spoken in court. Decisions from Massachusetts, Ohio, and the Federal Court of Appeals for the Fourth Circuit have greatly restricted substitute expert testimony, prohibiting opinions that rely on testimonial hearsay. See Commonwealth v. Gordon, 496 Mass. 554 (Mass. 2025); State v. Hale, 2024 Ohio 5579 (Ct. App. Ohio 2024) (unpublished); United States v. Seward, 135 F.4th 161 (4th Cir. 2025). Conversely, Texas, Arizona, the Federal Court of Appeals for the Ninth Circuit, and the Navy and Marine Court of Criminal Appeals have been more permissive of substitute experts who rely on out of court information to form independent opinions, but do not directly convey testimonial hearsay to the trier of fact. See Gourley v. State, 710 S.W. 3d 368 (Tex. Ct. App. 2025); State v. Aragon, 258 Ariz. 218 (Ariz. Ct. App. 2024); United States v. Earle, 2025 WL 1540947 (9th Cir. 2025) (unpublished); United States v. Dillenburger, 85 M.J. 599 (N. M. Ct. Crim. App. 2025). The Supreme Court of Nevada recently struck an interesting balance, holding that a substitute expert’s testimony will be “inadmissible if the expert is merely a conduit for another analyst’s testimonial statements, or if the expert both relies on and conveys those absent analyst’s testimonial statements in support of their opinion. But if the record shows the expert’s opinion is meaningfully independent and not based on testimonial hearsay, it will not violate the Confrontation Clause even where the expert may have reviewed another expert’s report in preparation for trial.” Matadamas-Serrano v. State, 584 P. 3d 793, 803 (Nev. 2026) (emphasis added). Courts have also varied in their interpretation of the term “testimonial hearsay.” Jurisdictions lack consistency regarding whether autopsy reports, for example, are testimonial. Gines v. State, 928 S.E. 2d 16, 43 (Ga. 2026). Most courts hold that raw, instrument-generated data is not testimonial hearsay, but some consider whether substitute experts rely on testimonial statements regarding the testing analyst’s adherence to laboratory procedures when examining the resulting data. Gordon, 496 Mass. at 572. Additionally, while all jurisdictions evaluate statements according to the primary purpose of the declarant, some states do not consider statements testimonial if no suspect was identified at the time they were made. State v. Tate, 299 N.C. App. 507, 531 (NC Ct. App. 2025). Perhaps a more fundamental question has arisen in some cases: who is the declarant? While most jurisdictions consider the testing analyst the declarant of statements related to their analysis, some courts have held that technical reviewers may, under certain circumstances, testify as substitute experts, since their role in the issuance of the final report renders them either a participant in its creation or “the functional equivalent of a second author.” State v. McElveen, 406 So.3d 449, (La. Ct. App. 2024); Dunlap v. State, Md. App. Ct., No. 969, Sept. Term, 2023, 2025 WL 1039557 (App. Ct. Md. 2025) (unpublished); see United States v. Jones, 2026 WL 1210147 (11th Cir. 2026) (unpublished). While Smith was meant to resolve inconsistency in substitute analyst jurisprudence, its progeny demonstrate the difficulty in achieving that goal. Courts across the country remain split in their treatment of substitute experts. Merits of a state forensic science commissions model for improving quality of crime laboratories in the United States with support of federal government by Mark Stolorow[The subject of this article will be addressed during a panel presentation at the NAFSB Annual Conference in October.] The 2009 National Research Council (NRC) Report "Strengthening Forensic Science in the United States - A Path Forward" was transformational in declaring that the reliability of forensic science in the United States was in serious need of improvement. The report described forensic science as highly fragmented across disciplines and across geographic jurisdictions. The report called for the establishment of a new National Institute of Forensic Science (NIFS), a regulatory and policy agency operated by the federal government. Reform efforts following the 2009 NRC report correctly identified systemic weaknesses but underestimated the effectiveness of state led governance models supported by national expertise. Strengthening forensic science in the United States does not require replacing local oversight with centralized bureaucracy. Quite to the contrary, the past 15 years of attempts by both the federal executive and legislative branches have fallen short in generating sufficient improvements in reliability, quality, and consistency in the practice of forensic science uniformly across all 50 states. The best remaining viable option is to recognize and harness the authority within each state to regulate, guide, and maintain state and local forensic science agency oversight with a framework of state boards and commissions. It requires building transparent, accountable, and scientifically grounded systems at the state level—supported, not supplanted, by federal resources. By grounding reform in data, practical governance, and shared responsibility, the United States can enhance the reliability of forensic evidence, increase public trust, and better serve the interests of justice.
|
