Do absent experts violate 6th Amendment 'confrontation clause'? This drug case may decide.

An Arizona-based criminal drug case will be argued before the U.S. Supreme Court during their ongoing 2023 term.

Related to the Sixth Amendment, the case will clarify a part of the law which has remained in limbo for over a decade.

The case surrounds the use of the testimony of an expert witness if another witness is testifying on their findings, but the original expert is not there to testify. The case will decide if absent experts can be used in this way or if their use in criminal trials violates the confrontation clause, which gives the defendant the right to confront their accuser to cross-examine them.

Smith v. Arizona, which the Supreme Court announced on Sept. 29 that it would hear, had an expert witness testify in the criminal trial on the drug testing and findings of a former colleague, who did not testify, which the defendant's lawyers argued violated the defendant's Sixth Amendment rights.

“This issue does not die,” Esther Hong, a law professor at Arizona State University, said of the confrontation clause. “It continues to come up and cause problems for not only the Supreme Court but also the lower courts — the lower state courts and federal courts.”

How many amendments are there? A guide to the US Constitution

Hari Santhanam, a partner at Perkins Coie, an international law firm, has been working on clarifying this part of the law for years and believes this case is the one to do it. He argues that the rights of Jason Smith, the defendant and his client, were violated.

Smith’s journey to the Supreme Court began in December 2019 when the Yuma County Narcotics Task Force executed a warrant for Smith’s father’s home. The property included a double-wide trailer, two travel trailers and a shed, which, when police arrived, had an “overwhelming order of fresh marijuana and burnt marijuana,” according to court documents.

Inside the shed, Smith, his father and another individual were found, along with six pounds of marijuana, which has a “street value” of $50,000, other drugs and paraphernalia, according to court documents.

Soon, the state charged Smith, who resisted arrest at the property, with five felony counts of possession of marijuana for sale, possession of dangerous drugs, narcotic drugs and drug paraphernalia. A jury convicted Smith and he was sentenced in October 2021 to four years in prison. Smith is serving his time in jail, Santhanam said.

“He may end up serving the majority of his sentence,” Santhanam said. “This case has less to do with getting out of jail as much as it is to clear his name.”

Smith was arrested less than a year before Arizona would legalize marijuana in November 2020. However, if the 2020 law had been in place at the time of Smith’s arrest, the amount of marijuana in his possession would have been 96 times the legal limit, as adults, 21 or over, are only legally allowed to possess up to one ounce of the substance for personal use.

Unreasonable search question: Supreme Court asked if police dog's paws violated Constitution during traffic stop

Nevertheless, the core argument in the appeals of Smith’s case came from the way the expert witness and testimony were presented.

The potential violation of the confrontation clause arose after the forensic scientist who initially tested the drugs in Smith’s case, Elizabeth Rast, was no longer working at the Arizona Department of Public Safety at the time of trial. Instead, Greggory Longoni, another forensic scientist for the department, testified at trial on Rast’s findings.

After Smith’s initial sentencing, Robert Treblicock at the Yuma Public Defender’s office appealed the case to the Arizona Court of Appeals. The appeal argued that Smith’s confrontation clause was violated because Longoni testified on Rast’s findings, instead of Rast herself, which eliminated the defense’s ability to cross-examine Rast.

“It was a pretty obvious issue,” Treblicock recalled.

The state of Arizona argued that Longoni wasn’t only testifying on Rast’s forensic report, but also on his own “independent opinion,” according to court documents. The state also argued that the defense could have called Rast to testify themselves.

That is when Santhanam came into the picture.

The Chicago-based lawyer had been trying to change the law surrounding the confrontation clause “for the better part of 15 years,” Santhanam said.

“We found this case as we were trying to identify a case that could be a good candidate to bring to the Supreme Court to try to change the law,” Santhanam said. He came across Smith’s case after the initial appeal was rejected and joined the case as it was being appealed to the Arizona Supreme Court, which refused to review the case.

The law surrounding the confrontation clause is different depending on the state and its precedent, which is why Santhanam is looking to unify the law nationwide as the clause is “a very critical, important issue that comes up in a lot of criminal cases,” he said.

The precedent in the Supreme Court is that if testimonial statements are introduced at trial, they can’t be introduced unless the absent analyst was unavailable or the defendant had a prior opportunity to cross-examine the witness. Neither happened in Smith’s case, Santhanam said.

The Arizona Attorney General’s Office “cannot comment on pending litigation,” Richie Taylor, the office’s communication director, said in an email.

This case is unique in the Supreme Court as it does not fall along liberal-conservative lines, making the outcome of the decision harder to predict as confrontation clause cases are “generally contentious,” Hong said.

“It’s a big deal because … it’s a long time coming,” Hong said.

The Arizona case is in the briefing process and an oral argument before the Supreme Court likely will happen in January or February, meaning a decision likely will come by the end of June 2024, Santhanam said. It is Santhanam’s first argument before the Supreme Court.

“The fact that the court has recognized that this is an important issue and that it needs to be taken up was a huge relief to our client,” Santhanam said. “It shows how important this issue is if the Supreme Court wants to weigh in.”

Reach reporter Morgan Fischer at morgan.fischer@gannett.com or on X @morgfisch.

This article originally appeared on Arizona Republic: Supreme Court to hear drug case as test to clarify 6th Amendment right