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Full Opinion
PRELIMINARY PRINT
Volume 602 U. S. Part 1
Pages 779–820
OFFICIAL REPORTS
OF
THE SUPREME COURT
June 21, 2024
Page Proof Pending Publication
REBECCA A. WOMELDORF
reporter of decisions
NOTICE: This preliminary print is subject to formal revision before
the bound volume is published. Users are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington, D.C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.
OCTOBER TERM, 2023 779
Syllabus
SMITH v. ARIZONA
certiorari to the court of appeals of arizona,
division one
No. 22–899. Argued January 10, 2024—Decided June 21, 2024
The Sixth Amendment's Confrontation Clause guarantees a criminal de-
fendant the right to confront the witnesses against him. In operation,
the Clause protects a defendant's right of cross-examination by limiting
the prosecution's ability to introduce statements made by people not in
the courtroom. The Clause thus bars the admission at trial of an absent
witness's statements unless the witness is unavailable and the defendant
had a prior chance to subject her to cross-examination. Crawford v.
Washington, 541 U. S. 36, 53–54. This prohibition “applies only to testi-
monial hearsay,” Davis v. Washington, 547 U. S. 813, 823, and in that
two-word phrase are two limits. First, in speaking about “witnesses”—
or “those who bear testimony”—the Clause confnes itself to “testimo-
nial statements,” a category this Court has variously described. Id., at
823, 826. Second, the Clause bars only the introduction of hearsay—
Page Proof Pending Publication
meaning, out-of-court statements offered “to prove the truth of the mat-
ter asserted.” Anderson v. United States, 417 U. S. 211, 219. Rele-
vant here, the Confrontation Clause applies in full to forensic evidence.
For example, in Melendez-Diaz v. Massachusetts, 557 U. S. 305, prosecu-
tors introduced “certifcates of analysis” stating that lab tests had iden-
tifed a substance seized from the defendant as cocaine. The Court held
that the defendant had a right to cross-examine the lab analysts who
prepared the certifcates. In Bullcoming v. New Mexico, 564 U. S. 647,
the Court relied on Melendez-Diaz to hold that a State could not intro-
duce one lab analyst's written fndings through the testimony of a substi-
tute analyst. Finally, in Williams v. Illinois, 567 U. S. 50, the Court
considered a case where one lab analyst related an absent analyst's fnd-
ings on the way to stating her own conclusion. The state court held
that the testimony did not implicate the Confrontation Clause because
the absent analyst's statements were introduced not for their truth, but
to explain the basis for the testifying expert's opinion. Five Members
of the Court rejected that reasoning. But because one of those fve
affrmed the state court on alternative grounds, Williams lost.
This case presents the same question on which the Court fractured
in Williams. Arizona law enforcement offcers found petitioner Jason
Smith with a large quantity of what appeared to be drugs and drug-
related items. Smith was charged with various drug offenses, and the
780 SMITH v. ARIZONA
Syllabus
State sent the seized items to a crime lab for scientifc analysis. Ana-
lyst Elizabeth Rast ran forensic tests on the items and concluded that
they contained usable quantities of methamphetamine, marijuana, and
cannabis. Rast prepared a set of typed notes and a signed report about
the testing. The State originally planned for Rast to testify about
those matters at Smith's trial, but Rast stopped working at the lab prior
to trial. So the State substituted another analyst, Greggory Longoni,
to “provide an independent opinion on the drug testing performed by
Elizabeth Rast.” At trial, Longoni conveyed to the jury what Rast's
records revealed about her testing, before offering his “independent
opinion” of each item's identity. Smith was convicted. On appeal, he
argued that the State's use of a substitute expert to convey the sub-
stance of Rast's materials violated his Confrontation Clause rights.
The Arizona Court of Appeals rejected Smith's challenge, holding that
Longoni could constitutionally present his own expert opinions based on
his review of Rast's work because her statements were then used only
to show the basis of his opinion and not to prove their truth.
Held: When an expert conveys an absent analyst's statements in support of
the expert's opinion, and the statements provide that support only if true,
then the statements come into evidence for their truth. Pp. 792–803.
(a) The parties agree that Smith's confrontation claim can succeed
Page Proof Pending Publication
only if Rast's statements came into evidence for their truth. Smith
argues that the condition is satisfed here because her statements were
conveyed, via Longoni's testimony, to establish that what she said hap-
pened in the lab did in fact happen. The State contends that Rast's
statements came into evidence not for their truth, but to “show the
basis” of Longoni's independent opinion. It emphasizes that Arizona's
Rules of Evidence authorize the admission of such statements for that
limited purpose. Evidentiary rules, however, do not control the inquiry
into whether a statement is admitted for its truth. Instead, courts
must conduct an independent analysis of that question.
Truth is everything when it comes to the kind of basis testimony
presented here. If an expert conveys an out-of-court statement in sup-
port of his opinion, and the statement supports that opinion only if true,
then the statement has been offered for the truth of what it asserts.
The truth of the basis testimony is what makes it useful to the State;
that is what supplies the predicate for—and thus gives value to—the
state expert's opinion. And from the factfnder's perspective, the jury
cannot decide whether the expert's opinion is credible without evaluat-
ing the truth of the factual assertions on which it is based. But that is
what raises the Confrontation Clause problem. For the defendant has
no opportunity to challenge the veracity of the out-of-court assertions
that are doing much of the work.
Cite as: 602 U. S. 779 (2024) 781
Syllabus
Here, Rast's statements came in for their truth, and no less because
they were admitted to show the basis of Longoni's expert opinions. All
of Longoni's opinions were predicated on the truth of Rast's factual
statements. And the jury could credit those opinions because it too
accepted the truth of what Rast reported about her lab work. So the
State's basis evidence—more precisely, the truth of the statements on
which its expert relied—propped up the whole case; yet the maker of
the statements was not in the courtroom, and Smith could not ask her
any questions. Pp. 792–800.
(b) What remains is whether the out-of-court statements Longoni
conveyed were testimonial. The testimonial issue focuses on the “pri-
mary purpose” of the statement, and in particular on how it relates to
a future criminal proceeding. But that issue is not now ft for resolu-
tion by this Court. The question presented in Smith's petition for cer-
tiorari took as a given that Rast's out-of-court statements were testimo-
nial, and the Arizona Court of Appeals did not decide the issue. Indeed,
there may not remain a matter to decide, as Smith maintains that the
State has forfeited any argument that Rast's statements were not testi-
monial. The testimonial issue, including the threshold forfeiture ques-
tion, is thus best considered by the state court in the frst instance.
Pp. 800–803.
Page Proof Pending Publication
Vacated and remanded.
Kagan, J., delivered the opinion of the Court, in which Sotomayor,
Kavanaugh, Barrett, and Jackson, JJ., joined, and in which Thomas
and Gorsuch, JJ., joined as to Parts I, II, and IV. Thomas, J., post, p. 803,
and Gorsuch, J., post, p. 805, fled opinions concurring in part. Alito, J.,
fled an opinion concurring in the judgment, in which Roberts, C. J.,
joined, post, p. 807.
Hari Santhanam argued the cause for petitioner. With
him on the briefs were Robert Trebilcock, Michael R. Hus-
ton, Diane M. Johnsen, and Jonathan Tietz.
Deputy Solicitor General Feigin argued the cause for the
United States as amicus curiae urging vacatur. With him
on the brief were Solicitor General Prelogar, Acting Assist-
ant Attorney General Argentieri, Aimee W. Brown, and
Sofa M. Vickery.
Alexander W. Samuels, Principal Deputy Solicitor General
of Arizona, argued the cause for respondent. With him on
the brief were Kristin K. Mayes, Attorney General, Daniel
782 SMITH v. ARIZONA
Counsel
C. Barr, Chief Deputy Attorney General, Joshua D. Bendor,
Solicitor General, Alice M. Jones, Deputy Solicitor General,
and Deborah Celeste Kinney, Gracynthia Claw, and Casey D.
Ball, Assistant Attorneys General.*
*Briefs of amici curiae urging reversal were fled for the Alameda
County Public Defender et al. by Joshi Valentine and Kathleen Guner-
atne; for the Innocence Network et al. by Anna Sortun, Samantha Taylor,
Jamie T. Lau, and Keith A. Findley; for the National Association of Crimi-
nal Defense Lawyers et al. by Timothy P. O'Toole, Sarah A. Dowd, Jeffrey
L. Fisher, David D. Cole, Claudia Van Wyk, and Jared G. Keenan; for the
National College for DUI Defense, Inc., by Michelle L. Behan, Donald J.
Ramsell, and Fleming Kanan Whited III; and for Richard D. Friedman,
pro se.
Briefs of amici curiae urging affrmance were fled for the State of
Colorado et al. by Philip J. Weiser, Attorney General of Colorado, Jillian
J. Price, Deputy Attorney General, and Brock J. Swanson and William G.
Kozeliski, Senior Assistant Attorneys General, by Gentner F. Drummond,
Attorney General of Oklahoma, Amie N. Ely, First Assistant Attorney
General, Garry M. Gaskins II, Solicitor General, and Caroline E. J. Hunt,
Page Proof Pending Publication
Deputy Attorney General, and by the Attorneys General for their respec-
tive jurisdictions as follows: Steve Marshall of Alabama, Treg Taylor of
Alaska, Tim Griffn of Arkansas, Rob Bonta of California, Kathleen Jen-
nings of Delaware, Brian Schwalb of the District of Columbia, Ashley
Moody of Florida, Christopher M. Carr of Georgia, RaĂşl Labrador of
Idaho, Kwame Raoul of Illinois, Todd Rokita of Indiana, Kris Kobach of
Kansas, Anthony G. Brown of Maryland, Dana Nessel of Michigan, Lynn
Fitch of Mississippi, Austin Knudsen of Montana, Michael T. Hilgers of
Nebraska, Aaron Ford of Nevada, John Formella of New Hampshire,
Matthew J. Platkin of New Jersey, RaĂşl Torrez of New Mexico, Letitia
James of New York, Josh Stein of North Carolina, Drew H. Wrigley of
North Dakota, Edward E. Manibusan of the Northern Mariana Islands,
Dave Yost of Ohio, Ellen F. Rosenblum of Oregon, Michelle Henry of
Pennsylvania, Peter F. Neronha of Rhode Island, Alan Wilson of South
Carolina, Marty J. Jackley of South Dakota, Jonathan Skrmetti of Tennes-
see, Ken Paxton of Texas, Sean D. Reyes of Utah, Jason Miyares of Vir-
ginia, Robert W. Ferguson of Washington, Patrick Morrisey of West Vir-
ginia, and Josh Kaul of Wisconsin.
Briefs of amici curiae urging affrmance were fled for the Criminal
Justice Legal Foundation by Kent S. Scheidegger; and for the National
District Attorneys Association et al. by Albert C. Locher.
Kendra N. Beckwith fled a brief for the American Board of Forensic
Toxicology et al. as amici curiae.
Cite as: 602 U. S. 779 (2024) 783
Opinion of the Court
Justice Kagan delivered the opinion of the Court.
The Sixth Amendment's Confrontation Clause guarantees
a criminal defendant the right to confront the witnesses
against him. The Clause bars the admission at trial of “tes-
timonial statements” of an absent witness unless she is “un-
available to testify, and the defendant ha[s] had a prior op-
portunity” to cross-examine her. Crawford v. Washington,
541 U. S. 36, 53–54 (2004). And that prohibition applies in
full to forensic evidence. So a prosecutor cannot introduce
an absent laboratory analyst's testimonial out-of-court state-
ments to prove the results of forensic testing. See Melendez-
Diaz v. Massachusetts, 557 U. S. 305, 307, 329 (2009).
The question presented here concerns the application of
those principles to a case in which an expert witness restates
an absent lab analyst's factual assertions to support his own
opinion testimony. This Court has held that the Confron-
tation Clause's requirements apply only when the prosecu-
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tion uses out-of-court statements for “the truth of the matter
asserted.” Crawford, 541 U. S., at 60, n. 9. Some state
courts, including the court below, have held that this condi-
tion is not met when an expert recites another analyst's
statements as the basis for his opinion. Today, we reject
that view. When an expert conveys an absent analyst's
statements in support of his opinion, and the statements pro-
vide that support only if true, then the statements come into
evidence for their truth. As this dispute illustrates, that
will generally be the case when an expert relays an absent
lab analyst's statements as part of offering his opinion. And
if those statements are testimonial too—an issue we briefy
address but do not resolve as to this case—the Confrontation
Clause will bar their admission.
I
A
The Confrontation Clause provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be con-
fronted with the witnesses against him.” In operation, the
784 SMITH v. ARIZONA
Opinion of the Court
Clause protects a defendant's right of cross-examination by
limiting the prosecution's ability to introduce statements
made by people not in the courtroom. For a time, this Court
held that the Clause's “preference for face-to-face” confronta-
tion could give way if a court found that an out-of-court
statement bore “adequate indicia of reliability.” Ohio v.
Roberts, 448 U. S. 56, 65–66 (1980). But two decades ago,
the Court changed course, to better refect original under-
standings. In Crawford v. Washington, the Court deemed
it “fundamentally at odds with the right of confrontation” to
admit statements based on judicial determinations of relia-
bility. 541 U. S., at 61. The Clause, Crawford explained,
“commands[ ] not that evidence be reliable, but that reliabil-
ity be assessed in a particular manner: by testing in the cru-
cible of cross-examination.” Ibid. And so the Clause bars
the admission at trial of an absent witness's statements—
however trustworthy a judge might think them—unless the
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witness is unavailable and the defendant had a prior chance
to subject her to cross-examination.
But not always. The Clause's prohibition “applies only to
testimonial hearsay”—and in that two-word phrase are two
limits. Davis v. Washington, 547 U. S. 813, 823 (2006).
First, in speaking about “witnesses”—or “those who bear
testimony”—the Clause confnes itself to “testimonial state-
ments,” a category whose contours we have variously de-
scribed. Id., at 823, 826; see id., at 822 (statements “made
in the course of police interrogation” were testimonial when
“the primary purpose of the interrogation [was] to establish
or prove past events potentially relevant to later criminal
prosecution”); Michigan v. Bryant, 562 U. S. 344, 358,
359 (2011) (statements made to police “to meet an ongoing
emergency” were “not procured with a primary purpose of
creating an out-of-court substitute for trial testimony”);
Melendez-Diaz, 557 U. S., at 311 (testimonial certifcates of
the results of forensic analysis were created “under circum-
stances which would lead an objective witness reasonably to
Cite as: 602 U. S. 779 (2024) 785
Opinion of the Court
believe that the statement[s] would be available for use at a
later trial”); infra, at 800. Second and more relevant here,
the Clause bars only the introduction of hearsay—meaning,
out-of-court statements offered “to prove the truth of the
matter asserted.” Anderson v. United States, 417 U. S. 211,
219 (1974). When a statement is admitted for a reason unre-
lated to its truth, we have held, the Clause's “role in protect-
ing the right of cross-examination” is not implicated. Ten-
nessee v. Street, 471 U. S. 409, 414 (1985); see Anderson, 417
U. S., at 220. That is because the need to test an absent
witness ebbs when her truthfulness is not at issue. See
ibid.; Street, 471 U. S., at 414; infra, at 795, 798.
Not long after Crawford, the Court made clear that the
Confrontation Clause applies to forensic reports. In
Melendez-Diaz v. Massachusetts, state prosecutors intro-
duced “certifcates of analysis” (essentially, affdavits) stating
that lab tests had identifed a substance seized from the de-
Page Proof Pending Publication
fendant as cocaine. 557 U. S., at 308. But the State did not
call as witnesses the analysts who had conducted the tests
and signed the certifcates. We held that a “straightforward
application” of Crawford showed a constitutional violation.
557 U. S., at 312. The certifcates were testimonial: They
had an “evidentiary purpose,” identical to the one served had
the analysts given “live, in-court testimony.” Id., at 311.
And the certifcates were offered to prove the truth of what
they asserted: that the seized powder was in fact cocaine.
See id., at 310–311. So the defendant had a right to cross-
examine the lab-analyst certifers. In reaching that conclu-
sion, we rejected the State's claim that the results of so-
called “neutral, scientifc testing” should be subject to a dif-
ferent rule. Id., at 317. We again underscored that the
Confrontation Clause commanded not reliability but one way
of testing it—through cross-examination. See ibid. And
we thought that method might have plenty to do in cases
involving forensic analysis. After all, lab tests are “not
uniquely immune from the risk of manipulation” or mis-
786 SMITH v. ARIZONA
Opinion of the Court
take. Id., at 318. The defendant might have used cross-
examination to probe “what tests the analysts performed,”
whether those tests “present[ed] a risk of error, ” and
whether the analysts had the right skill set to “interpret[ ]
their results.” Id., at 320.
Two years later, the Court relied on Melendez-Diaz to hold
that a State could not introduce one lab analyst's written
fndings through the testimony of another. In Bullcoming
v. New Mexico, 564 U. S. 647, 651–652 (2011), an analyst tes-
ted the blood-alcohol level of someone charged with drunk
driving, and prepared a “testimonial certifcation” reporting
that the level was higher than legal. But by the time the
driver's trial began, that analyst had been placed on unpaid
leave. So the State instead called a different analyst from
the same lab to testify as to what the certifcation said. The
substitute analyst had similar qualifcations, and knew about
the type of test performed. But the Court held that insuff-
Page Proof Pending Publication
cient to satisfy the Confrontation Clause. The “surrogate
testimony,” the Court explained, “could not convey what [the
certifying analyst] knew or observed” about “the particular
test and testing process he employed.” Id., at 661. Nor
could that “testimony expose any lapses or lies on the certi-
fying analyst's part,” or offer any insight into whether his
leave-without-pay was the result of misconduct. Id., at 662.
Concluded the Court: “[W]hen the State elected to introduce
[the] certifcation,” its author—and not any substitute—“be-
came [the] witness [that the defendant] had the right to con-
front.” Id., at 663.
The very next Term brought another case in which one lab
analyst related what another had found—though this time on
the way to stating her own conclusion. In Williams v. Illi-
nois, 567 U. S. 50 (2012), state police sent vaginal swabs from
a rape victim known as L. J. to a private lab for DNA testing.
When the lab sent back a DNA profle, a state analyst
checked it against the police department's database and
found that it matched the profle of prior arrestee Sandy Wil-
Cite as: 602 U. S. 779 (2024) 787
Opinion of the Court
liams. The State charged Williams with the rape, and he
went to trial. The prosecution chose not to bring the pri-
vate lab analyst to the stand. Instead, it called Sandra
Lambatos, the state analyst who had searched the police
database and found the DNA match. Lambatos had no frst-
hand knowledge of how the private lab had produced its re-
sults; she did not even know whether those results actually
came from L. J.'s vaginal swabs (as opposed to some other
sample). But she spoke repeatedly about comparing Wil-
liams's DNA to the DNA “found in [L. J.'s] vaginal swabs.”
Id., at 61, 71 (plurality opinion); see id., at 124 (Kagan, J.,
dissenting). So in addition to describing how she discovered
a match, Lambatos became the conduit for what a different
analyst had reported—that a particular DNA profle came
from L. J.'s vaginal swabs. Williams objected, at trial and
later: He thought that, just as in Bullcoming, crucial evi-
dence had been admitted through a surrogate expert, thus
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violating his right of confrontation.
But the Illinois Supreme Court rejected Williams's claim,
holding that Lambatos's testimony about the private lab ana-
lyst's fnding did not raise a Confrontation Clause issue. See
People v. Williams, 238 Ill. 2d 125, 143–144, 939 N. E. 2d
268, 278–279 (2010). The court explained that under state
evidence law, an expert can disclose “underlying facts and
data” for “the purpose of explaining the basis for [her] opin-
ion.” Id., at 137, 143, 939 N. E. 2d, at 274–275, 278. And
when she does so, the court held, the testimony is not subject
to the Confrontation Clause because it is not admitted “for
the truth of the matter asserted.” Id., at 143, 939 N. E. 2d,
at 278. Thus, Lambatos could relay the private lab's fnding
that L. J.'s vaginal swabs produced a certain DNA profle in
order to “explain[ ] the basis for her opinion” that “there was
a DNA match between [Williams's] blood sample and the
semen sample recovered from L. J.” Id., at 150, 939 N. E.
2d, at 282. The admission of the private lab report's con-
tents for that “limited purpose,” the court reasoned, would
788 SMITH v. ARIZONA
Opinion of the Court
“aid the [factfnder] in assessing the value of [Lambatos's]
opinion.” Id., at 144, 939 N. E. 2d, at 278; see id., at 150,
939 N. E. 2d, at 282.
This Court granted Williams's petition for certiorari, but
failed to produce a majority opinion. Four Members of the
Court approved the Illinois Supreme Court's approach to
“basis evidence,” and agreed that Lambatos's recitation of
the private lab's fndings served “the legitimate nonhearsay
purpose of illuminating the expert's thought process.” Wil-
liams, 567 U. S., at 78 (plurality opinion). But the remain-
ing fve Members rejected that view. Those fve stated, in
two opinions, that basis evidence is generally introduced for
its truth, and was so introduced at Williams's trial. Justice
Thomas explained that “the purportedly limited reason for
[the basis] testimony—to aid the factfnder in evaluating the
expert's opinion—necessarily entail[ed] an evaluation of
whether [that] testimony [was] true”: “[T]he validity of Lam-
batos'[s] opinion ultimately turned on the truth of [the pri-
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vate lab analyst's] statements.” Id., at 106, n. 1, 108 (opinion
concurring in judgment). A dissent for another four Jus-
tices agreed: “[T]he utility of the [private analyst's] state-
ment that Lambatos repeated logically depended on its
truth.” Id., at 132 (opinion of Kagan, J.). And the State
could not avoid that conclusion by “rely[ing] on [Lambatos's]
status as an expert.” Id., at 126. Those shared views might
have made for a happy majority, except that a different Con-
frontation Clause issue intruded. Justice Thomas thought
that the private lab report was not testimonial because it
lacked suffcient formality, so affrmed the Illinois Supreme
Court on that alternative ground. The bottom line was that
Williams lost, even though fve Members of this Court re-
jected the state court's “not for the truth” reasoning.1
1
The Court also failed to reach agreement on the testimonial issue.
The four Justices who accepted the state court's “not for the truth” view
also concluded that the report was not testimonial. See Williams, 567
U. S., at 81–86 (plurality opinion). But they did so for reasons different
Cite as: 602 U. S. 779 (2024) 789
Opinion of the Court
Our opinions in Williams “have sown confusion in courts
across the country” about the Confrontation Clause's applica-
tion to expert opinion testimony. Stuart v. Alabama, 586
U. S. 1026, 1027 (2018) (Gorsuch, J., dissenting from denial
of certiorari). Some courts have applied the Williams plu-
rality's “not for the truth” reasoning to basis testimony,
while others have adopted the opposed fve-Justice view.2
This case emerged out of that muddle.
B
Like Melendez-Diaz, this case involves drugs. In Decem-
ber 2019, Arizona law enforcement offcers executed a search
warrant on a property in the foothills of Yuma County. In-
side a shed on the property, they found petitioner Jason
Smith. They also found a large quantity of what appeared
to be drugs and drug-related items. As a result, Smith was
charged with possessing dangerous drugs (methamphet-
Page Proof Pending Publication
amine) for sale; possessing marijuana for sale; possessing
narcotic drugs (cannabis) for sale; and possessing drug para-
phernalia. He pleaded not guilty, and the case was set for
trial.
In preparation, the State sent items seized from the shed
to a crime lab run by the Arizona Department of Public
Safety (DPS) for a “full scientifc analysis.” App. to Pet.
from Justice Thomas's. Compare ibid. with id., at 110–117 (opinion con-
curring in judgment). The result was that no single rationale for affrm-
ance garnered a majority.
2
Compare, e. g., State v. Mercier, 2014 ME 28, ¶¶12–14, 87 A. 3d 700,
704 (accepting the “not for the truth” rationale for admitting an expert's
basis testimony); State v. Hutchison, 482 S. W. 3d 893, 914 (Tenn. 2016);
United States v. Murray, 540 Fed. Appx. 918, 921 (CA11 2013), with People
v. Sanchez, 63 Cal. 4th 665, 684, 374 P. 3d 320, 333 (2016) (rejecting the
“not for the truth” rationale for admitting an expert's basis testimony);
Martin v. State, 60 A. 3d 1100, 1107 (Del. 2013); Young v. United States,
63 A. 3d 1033, 1045 (D. C. 2013); Leidig v. State, 475 Md. 181, 234, n. 23,
256 A. 3d 870, 901, n. 23 (2021); Commonwealth v. Jones, 472 Mass. 707,
714, 37 N. E. 3d 589, 597 (2015).
790 SMITH v. ARIZONA
Opinion of the Court
for Cert. 127a. The State's request identifed Smith as the
individual “associated” with the substances, listed the
charges against him, and noted that “[t]rial ha[d] been set.”
Ibid. Analyst Elizabeth Rast communicated with prosecu-
tors about exactly which items needed to be examined, and
then ran the requested tests. See id., at 99a.
Rast prepared a set of typed notes and a signed report,
both on DPS letterhead, about the testing. The notes docu-
mented her lab work and results. They disclosed, for each
of eight items: a “[d]escription” of the item; the weight of
the item and how the weight was measured; the test(s) she
performed on the item, including whether she frst ran a
“[b]lank” on the testing equipment; the results of those tests;
and a “[c]onclusion” about the item's identity. See id., at
88a–98a. The signed report then distilled the notes into two
pages of ultimate fndings, denoted “results/interpretations.”
See id., at 85a–87a. After listing the eight items, the report
stated that four “[c]ontained a usable quantity of metham-
Page Proof Pending Publication
phetamine,” three “[c]ontained a usable quantity of mari-
juana,” and one “[c]ontained a usable quantity of cannabis.”
Id., at 86a–87a. The State originally planned for Rast to
testify about those matters at Smith's trial.
But with three weeks to go, the State called an audible,
replacing Rast with a different DPS analyst as its expert
witness. In the time between testing and trial, Rast had
stopped working at the lab, for unexplained reasons. And
the State chose not to rely on the now-former employee as a
witness. So the prosecutors fled an amendment to their
“fnal pre-trial conference statement” striking out the name
Elizabeth Rast and adding “Greggory Longoni, forensic sci-
entist (substitute expert).” Id., at 26a. Longoni had no
prior connection to the Smith case, and the State did not
claim otherwise. Its amendment simply stated that
“Mr. Longoni will provide an independent opinion on the
drug testing performed by Elizabeth Rast.” Ibid. And it
continued: “Ms. Rast will not be called. [Mr. Longoni] is
expected to have the same conclusion.” Ibid.
Cite as: 602 U. S. 779 (2024) 791
Opinion of the Court
And he did come to the same conclusion, in reliance on
Rast's records. Because he had not participated in the
Smith case, Longoni prepared for trial by reviewing Rast's
report and notes. And when Longoni took the stand, he re-
ferred to those materials and related what was in them, item
by item by item. As to each, he described the specifc “sci-
entifc method[s]” Rast had used to analyze the substance
(e. g., a microscopic examination, a chemical color test, a gas
chromatograph/mass spectrometer test). Id., at 41a; see id.,
at 42a, 46a–48a. And as to each, he stated that the testing
had adhered to “general principles of chemistry,” as well as
to the lab's “policies and practices,” id., at 47a–48a; see id.,
at 40a; so he noted, for example, that Rast had run a “blank”
to confrm that testing equipment was not contaminated, id.,
at 42a, 47a. After thus telling the jury what Rast's records
conveyed about her testing of the items, Longoni offered an
“independent opinion” of their identity. Id., at 46a–47a, 49a.
More specifcally, the opinions he offered were: that Item 26
Page Proof Pending Publication
was “a usable quantity of marijuana,” that Items 20A and
20B were “usable quantit[ies] of methamphetamine,” and
that Item 28 was “[a] usable quantity of cannabis.” Ibid.
After Smith was convicted, he brought an appeal focusing
on Longoni's testimony. In Smith's view, the State's use of
a “substitute expert”—who had not participated in any of the
relevant testing—violated his Confrontation Clause rights.
Id., at 26a; see Brief for Appellant Smith in No. 1 CA–CR
21– 0451 (Ariz. Ct. App.), pp. 20–23. The real witness
against him, Smith urged, was Rast, through her written
statements; but he had not had the opportunity to cross-
examine her. See ibid. The State disagreed. In its view,
Longoni testifed about “his own independent opinions,” even
though making use of Rast's records. Brief for Appellee Ar-
izona in No. 1 CA–CR 21–0451 (Ariz. Ct. App.), p. 22. So
Longoni was the only witness Smith had a right to confront.
See ibid.
The Arizona Court of Appeals affrmed Smith's convic-
tions, rejecting his Confrontation Clause challenge. It re-
792 SMITH v. ARIZONA
Opinion of the Court
lied on Arizona precedent (similar to the Illinois Supreme
Court's decision in Williams) stating that an expert may tes-
tify to “the substance of a non-testifying expert's analysis,
if such evidence forms the basis of the [testifying] expert's
opinion.” App. to Pet. for Cert. 11a–12a (quoting State
ex rel. Montgomery v. Karp, 236 Ariz. 120, 124, 336 P. 3d
753, 757 (App. 2014)). That is because, the Arizona courts
have said, the “underlying facts” are then “used only to show
the basis of [the in-court witness's] opinion and not to prove
their truth.” Ibid., 336 P. 3d, at 757. On that view, the
Court of Appeals held, Longoni could constitutionally “pres-
ent[ ] his independent expert opinions” as “based on his re-
view of Rast's work.” App. to Pet. for Cert. 11a.
We granted certiorari to consider that reasoning, 600
U. S. ––– (2023), and we now reject it.3
II
Smith's confrontation claim can succeed only if Rast's
Page
statementsProof
came into Pending
evidence for theirPublication
truth. As earlier
explained, the Clause applies solely to “testimonial hearsay.”
Davis, 547 U. S., at 823 (emphasis added); see supra, at 784.
3
The question on which we granted certiorari made reference as well to
another aspect of the Court of Appeals' reasoning. That question asks
whether the Confrontation Clause permits “testimony by a substitute ex-
pert conveying the testimonial statements of a nontestifying forensic ana-
lyst, on the grounds that (a) the testifying expert offers some independent
opinion and the analyst's statements are offered not for their truth but to
explain the expert's opinion, and (b) the defendant did not independently
seek to subpoena the analyst.” Pet. for Cert. i. The “(b)” in that ques-
tion arises from the following sentence in the court's opinion: “Had Smith
sought to challenge Rast's analysis, he could have called her to the stand
and questioned her, but he chose not to do so.” App. to Pet. for Cert.
12a. We need not spend much time on that rationale because the State
rightly does not defend it. As we held in Melendez-Diaz, a defendant's
“ability to subpoena” an absent analyst “is no substitute for the right of
confrontation.” 557 U. S., at 324. The Confrontation Clause “imposes a
burden on the prosecution to present its witnesses, not on the defendant
to bring those adverse witnesses into court.” Ibid.
Cite as: 602 U. S. 779 (2024) 793
Opinion of the Court
And that means the Clause “does not bar the use of testimo-
nial statements for purposes other than establishing the
truth of the matter asserted.” Crawford, 541 U. S., at 60,
n. 9. So a court analyzing a confrontation claim must iden-
tify the role that a given out-of-court statement—here,
Rast's statements about her lab work—served at trial. On
that much, indeed, the entire Williams Court agreed. Amid
all the fracturing that case produced, every Justice defned
its primary question in the same way: whether the absent
analyst's statements were introduced for their truth. See
567 U. S., at 57–58 (plurality opinion); id., at 104 (Thomas, J.,
concurring in judgment); id., at 125–126 (Kagan, J., dissent-
ing). The parties here likewise concur in that framing. See
Brief for Smith 28–29; Brief for Arizona 17–18. If Rast's
statements came in to establish the truth of what she said,
then the Clause's alarms begin to ring; but if her statements
came in for another purpose, then those alarms fall quiet.
Page Proof Pending Publication
Where the parties disagree, of course, is in answering that
purpose question. Smith argues that the “for the truth”
condition is satisfed here, just as much as in Melendez-Diaz
or Bullcoming. See Brief for Smith 23–28; supra, at 785–
786. In his view, Rast's statements were conveyed, via Lon-
goni's testimony, to establish that what she said happened in
the lab did in fact happen. Or put more specifcally, those
statements were conveyed to show that she used certain
standard procedures to run certain tests, which enabled
identifcation of the seized items. The State sees the matter
differently. See Brief for Arizona 19–26. Echoing the Ari-
zona Court of Appeals (and the Illinois Supreme Court in
Williams), the State argues that Rast's statements came
into evidence not for their truth, but instead to “show the
basis” of the in-court expert's independent opinion. Brief
for Arizona 21; see supra, at 787–788. And to defend that
characterization, Arizona emphasizes that its Rule of Evi-
dence 703 (again, like Illinois's) authorizes the admission of
such statements only for that purpose—i. e., to “help[ ] the
794 SMITH v. ARIZONA
Opinion of the Court
jury [to] evaluate” the opinion testimony. Brief for Arizona
20–21; see post, at 814 (Alito, J., concurring in judgment)
(arguing the same as to Federal Rule of Evidence 703).
Evidentiary rules, though, do not control the inquiry into
whether a statement is admitted for its truth. That inquiry,
as just described, marks the scope of a federal constitutional
right. See supra, at 792–793. And federal constitutional
rights are not typically defned—expanded or contracted—
by reference to non-constitutional bodies of law like evidence
rules.4 The confrontation right is no different, as Crawford
made clear. “Where testimonial statements are involved,”
that Court explained, “the Framers [did not mean] to leave
the Sixth Amendment's protection to the vagaries of the
rules of evidence.” 541 U. S., at 61. Justice Thomas reit-
erated the point in Williams: “[C]oncepts central to the ap-
plication of the Confrontation Clause are ultimately matters
of federal constitutional law that are not dictated by state or
Page Proof Pending Publication
federal evidentiary rules.” 567 U. S., at 105 (opinion concur-
ring in judgment). We therefore do not “accept [a State's]
nonhearsay label at face value.” Id., at 106; see id., at 132
(Kagan, J., dissenting). Instead, we conduct an independ-
ent analysis of whether an out-of-court statement was ad-
mitted for its truth, and therefore may have compromised a
defendant's right of confrontation.
We did just that in Tennessee v. Street—and in so doing
showcased how an out-of-court statement can come into evi-
dence for a non-truth-related reason. See 471 U. S., at 410–
417. Street was charged with murder, based mostly on a
4
One qualifcation is appropriate. If an evidentiary rule refects a long-
established understanding, then it might shed light on the historical mean-
ing of the Confrontation Clause. But that could not possibly be said of
Rule 703—the rule Arizona cites to support the introduction of basis evi-
dence. On the contrary, that rule is a product of the late-20th century,
and was understood from the start to depart from past practice. See
Brief for Richard D. Friedman as Amicus Curiae 17; Advisory Commit-
tee's Notes on Fed. Rule Evid. 703, 28 U. S. C. App., p. 393.
Cite as: 602 U. S. 779 (2024) 795
Opinion of the Court
stationhouse confession. At trial, he claimed that the con-
fession was coerced, and in a peculiar way: The sheriff, he
said, had read aloud an accomplice's confession and forced
him to repeat it. On rebuttal, the State introduced the
other confession (through the sheriff's testimony) to demon-
strate to the jury all the ways its content deviated from
Street's. We upheld that use as “nonhearsay.” Id., at 413.
The other confession came in, we explained, not to prove
“the truth of [the accomplice's] assertions” about how the
murder happened, but only to disprove Street's claim about
how the sheriff elicited his own confession. Ibid. Or other-
wise said, the point was to show, by highlighting the two
confessions' differences, that Street's was not a “coerced imi-
tation.” Id., at 414. For that purpose, the truth of the ac-
complice's confession (and the credibility of the accomplice
himself) was irrelevant.
But truth is everything when it comes to the kind of basis
Page Proof Pending Publication
testimony presented here. If an expert for the prosecution
conveys an out-of-court statement in support of his opinion,
and the statement supports that opinion only if true, then
the statement has been offered for the truth of what it as-
serts. How could it be otherwise? “The whole point” of
the prosecutor's eliciting such a statement is “to establish—
because of the [statement's] truth—a basis for the jury to
credit the testifying expert's” opinion. Stuart, 586 U. S., at
1028 (Gorsuch, J., dissenting from denial of certiorari) (em-
phasis in original). Or said a bit differently, the truth of the
basis testimony is what makes it useful to the prosecutor;
that is what supplies the predicate for—and thus gives value
to—the state expert's opinion. So “[t]here is no meaning-
ful distinction between disclosing an out-of-court statement”
to “explain the basis of an expert's opinion” and “disclos-
ing that statement for its truth.” Williams, 567 U. S., at
106 (Thomas, J., concurring in judgment). A State may use
only the former label, but in all respects the two purposes
merge.
796 SMITH v. ARIZONA
Opinion of the Court
Or to see the point another way, consider it from the fact-
fnder's perspective. In the view of the Arizona courts, an
expert's conveyance of another analyst's report enables the
factfnder to “determine whether [the expert's] opinion
should be found credible.” Karp, 236 Ariz., at 124, 336 P. 3d,
at 757; see Williams, 238 Ill. 2d, at 144, 939 N. E. 2d, at 278
(also stating that such a report “aid[s] the jury in assessing
the value of [the expert's] opinion”); supra, at 787–788, 792.
That is no doubt right. The jury cannot decide whether the
expert's opinion is credible without evaluating the truth of
the factual assertions on which it is based. See D. Kaye, D.
Bernstein, A. Ferguson, M. Wittlin, & J. Mnookin, The New
Wigmore: Expert Evidence § 5.4.1, p. 271 (3d ed. 2021). If
believed true, that basis evidence will lead the jury to credit
the opinion; if believed false, it will do the opposite. See
Williams, 567 U. S., at 106, and n. 1 (Thomas, J., concurring
in judgment); id., at 126–127 (Kagan, J., dissenting). But
that very fact is what raises the Confrontation Clause prob-
Page Proof Pending Publication
lem. For the defendant has no opportunity to challenge the
veracity of the out-of-court assertions that are doing much
of the work.
And if that explanation seems a bit abstract, then take this
case as its almost-too-perfect illustration. Recall that Rast
tested eight seized items before she disappeared from the
scene. At trial, the prosecutor asked the State's “substitute
expert” Longoni to testify about four of them (with the rest
dropping out of the case). App. to Pet. for Cert. 26a. A
recap of their exchange about one item will be enough; the
rest followed the same pattern. Remember as you read that
Longoni, though familiar with the lab's general practices, had
no personal knowledge about Rast's testing of the seized
items. Rather, as his testimony makes clear, what he knew
on that score came only from reviewing Rast's records.
With that as background:
Q Turn your attention to Item 26. I'm going to hand
you what's been marked as State's Exhibit 98 [Rast's
Cite as: 602 U. S. 779 (2024) 797
Opinion of the Court
notes]. . . . Did you review how [Item] 26 was tested in
this case?
A Yes.
Q When you reviewed it, did you notice whether the
[standard lab] policies and practices that you have just
described were followed?
A Yes.
Q Were they followed?
A Yes.
. . . . .
Q From your review of the lab notes in this case, can
you tell me what scientifc method was used to analyze
Item 26?
A Yes.
Q And what was used?
A The microscopic examination and the chemical color
test. . . .
Q That was done in this case?
Page Proof Pending Publication
A Yes, it was.
Q Was there a blank done to prevent contamination,
make sure everything was clean?
A According to the notes, yes.
. . . . .
Q In reviewing what was done, your knowledge and
training as a forensic scientist, your knowledge and ex-
perience with DPS's policies, practices, procedures, your
knowledge of chemistry, the lab notes, the intake rec-
ords, the chemicals used, the tests done, can you form
an independent opinion on the identity of Item 26?
A Yes.
Q What is that opinion?
A That is a usable quantity of marijuana.
Id., at 39a–42a, 46a. And then the prosecutor went on to
Items 20A, 20B, and 28, asking similar questions, receiving
similar answers based on Rast's records, and fnally eliciting
similar “independent opinions”—which were no more than
798 SMITH v. ARIZONA
Opinion of the Court
what Rast herself had concluded. See supra, at 790–791.
“Yes,” Longoni confrmed, just as Item 26 was a “usable
quantity of marijuana,” Items 20A and 20B were “usable
quantit[ies] of methamphetamine” and Item 28 was a “usable
quantity of cannabis.” App. to Pet. for Cert. 46a, 47a, 49a.
Rast's statements thus came in for their truth, and no less
because they were admitted to show the basis of Longoni's
expert opinions. All those opinions were predicated on the
truth of Rast's factual statements. Longoni could opine that
the tested substances were marijuana, methamphetamine,
and cannabis only because he accepted the truth of what
Rast had reported about her work in the lab—that she had
performed certain tests according to certain protocols and
gotten certain results. And likewise, the jury could credit
Longoni's opinions identifying the substances only because it
too accepted the truth of what Rast reported about her lab
work (as conveyed by Longoni). If Rast had lied about all
Page Proof Pending Publication
those matters, Longoni's expert opinion would have counted
for nothing, and the jury would have been in no position to
convict. So the State's basis evidence—more precisely, the
truth of the statements on which its expert relied—propped
up its whole case. But the maker of those statements was
not in the courtroom, and Smith could not ask her any
questions.
Approving that practice would make our decisions in
Melendez-Diaz and Bullcoming a dead letter, and allow for
easy evasion of the Confrontation Clause. As earlier de-
scribed, those two decisions applied Crawford in “straight-
forward” fashion to forensic evidence. Melendez-Diaz, 557
U. S., at 312; see Bullcoming, 564 U. S., at 659–661; supra, at
785–786. The frst prevented the introduction of a lab ana-
lyst's testimonial report sans lab analyst. The second refused
to accede to the idea that any old analyst—i. e., a substitute
who had not taken part in the lab work—would do. Arizona
offers only a slight variation. On its view, a surrogate ana-
lyst can testify to all the same substance—that is, someone
Cite as: 602 U. S. 779 (2024) 799
Opinion of the Court
else's substance—as long as he bases an “independent opin-
ion” on that material. And that is true even if, as here, the
proffered opinion merely replicates, rather than somehow
builds on, the testing analyst's conclusions. So every testi-
monial lab report could come into evidence through any
trained surrogate, however remote from the case. And no
defendant would have a right to cross-examine the testing
analyst about what she did and how she did it and whether
her results should be trusted. In short, Arizona wants to
end run all we have held the Confrontation Clause to require.
It cannot.
Properly understood, the Clause still allows forensic ex-
perts like Longoni to play a useful role in criminal trials.
Because Longoni worked in the same lab as Rast, he could
testify from personal knowledge about how that lab typically
functioned—the standards, practices, and procedures it used
to test seized substances, as well as the way it maintained
Page Proof Pending Publication
chains of custody. (Indeed, Longoni did just that in a differ-
ent part of his testimony. See App. to Pet. for Cert. 32a–
39a.) Or had he not been familiar with Rast's lab, he could
have testifed in general terms about forensic guidelines and
techniques—perhaps explaining what it means for a lab to
be accredited and what requirements accreditation imposes.
Or as the Williams plurality and dissent both observed, he
might have been asked—and could have answered—any
number of hypothetical questions, taking the form of: “If
or assuming some out-of-court statement were true, what
would follow from it?” See 567 U. S., at 67–68; id., at 129,
n. 2. (The State of course would then have to separately
prove the thing assumed.) The United States, appearing as
amicus curiae in support of neither party, usefully ad-
dressed these matters at oral argument, distinguishing Lon-
goni's testimony as block-quoted above from the various
kinds of testimony just described. See Tr. of Oral Arg. 36–
41. The latter forms of testimony allow forensic expertise
to inform a criminal case without violating the defendant's
800 SMITH v. ARIZONA
Opinion of the Court
right of confrontation. And we offer these merely as exam-
ples; there may be others.
But as the United States acknowledged, the bulk of Lon-
goni's testimony took no such permissible form. Ibid.
Here, the State used Longoni to relay what Rast wrote down
about how she identifed the seized substances. Longoni
thus effectively became Rast's mouthpiece. He testifed to
the precautions (she said) she took, the standards (she said)
she followed, the tests (she said) she performed, and the re-
sults (she said) she obtained. The State offered up that evi-
dence so the jury would believe it—in other words, for its
truth. So if the out-of-court statements were also testimo-
nial, their admission violated the Confrontation Clause.
Smith would then have had a right to confront the person
who actually did the lab work, not a surrogate merely read-
ing from her records.
III
Page Proof
What remains Pending
is whether Publication
the out-of-court statements Lon-
goni conveyed were testimonial. As earlier explained, that
question is independent of everything said above: To impli-
cate the Confrontation Clause, a statement must be hearsay
(“for the truth”) and it must be testimonial—and those two
issues are separate from each other. See supra, at 784–785.
The latter, this Court has stated, focuses on the “primary
purpose” of the statement, and in particular on how it relates
to a future criminal proceeding. See ibid. (noting varied
formulations of the standard).5 A court must therefore
identify the out-of-court statement introduced, and must de-
5
Given that focus, the mine-run of materials on which most expert wit-
nesses rely in forming opinions—including books and journals, surveys,
and economic or scientifc studies—will raise no serious confrontation is-
sues. See Brief for United States as Amicus Curiae 13–17 (giving exam-
ples of classic expert-basis evidence). That is because the preparation
of those materials generally lacks any “evidentiary purpose.” Melendez-
Diaz, 557 U. S., at 311.
Cite as: 602 U. S. 779 (2024) 801
Opinion of the Court
termine, given all the “relevant circumstances,” the principal
reason it was made. Bryant, 562 U. S., at 369.
But that issue is not now ft for our resolution. The ques-
tion presented in Smith's petition for certiorari did not ask
whether Rast's out-of-court statements were testimonial.
See supra, at 792, n. 3 (quoting Pet. for Cert. i). Instead, it
took as a given that they were. See id., at i. That presen-
tation refected the Arizona Court of Appeals' opinion. As
described earlier, that court relied on the “not for the truth”
rationale we have just rejected. See supra, at 791–792. It
did not decide whether Rast's statements were testimonial.
Nor, to our knowledge, did the trial court ever take a stance
on that issue. Because “we are a court of review, not of frst
view,” we will not be the pioneer court to decide the matter.
Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005). And
indeed, we are not sure if there remains a matter to decide.
Smith argues that the State has forfeited the argument: Ari-
Page Proof Pending Publication
zona, he says, “gave no hint in the proceedings below that it
believed Rast's statements were anything but testimonial.”
Reply Brief 3. The State denies that assertion, pointing to
a passage about Williams in its lower court briefng. See
Brief for Arizona 39, n. 14. The dispute is best addressed
by a state court. So we return the testimonial issue, includ-
ing the threshold forfeiture matter, to the Arizona Court of
Appeals.
But we offer a few thoughts, based on the arguments made
here, about the questions the state court might usefully ad-
dress if the testimonial issue remains live. First, the court
will need to consider exactly which of Rast's statements are
at issue. In this Court, the parties disputed whether Lon-
goni was reciting from Rast's notes alone, or from both her
notes and fnal report. See supra, at 790 (describing those
documents). In Arizona's view, everything Longoni testi-
fed to came from Rast's notes; although he at times used the
word “report,” a close comparison of the documents and his
802 SMITH v. ARIZONA
Opinion of the Court
testimony reveals (the State says) that he meant only the
notes. See Brief for Arizona 39–40; Tr. of Oral Arg. 69–72;
see also App. to Pet. for Cert. 39a–40a, 48a. Smith dis-
agrees, taking Longoni's references to the “report,” as well
as the notes, at face value. According to Smith, Longoni
“relied on both” documents and in fact “treated them as a
unit,” with the notes “attached” to the report as “essentially
an appendix.” Reply Brief 4; Tr. of Oral Arg. 25, 98. Re-
solving that dispute might, or then again might not, affect
the court's ultimate disposition of Smith's Confrontation
Clause claim. We note only that before the court can decide
the primary purpose of the out-of-court statements intro-
duced at Smith's trial, it needs to determine exactly what
those statements were.
In then addressing the statements' primary purpose—why
Rast created the report or notes—the court should consider
the range of recordkeeping activities that lab analysts en-
gage in. See generally supra, at 784–785 (describing formu-
Page Proof Pending Publication
lations of the testimonial inquiry). After all, some records
of lab analysts will not have an evidentiary purpose. The
United States as amicus curiae notes, for example, that lab
records may come into being primarily to comply with labo-
ratory accreditation requirements or to facilitate internal re-
view and quality control. See Tr. of Oral Arg. 51. Or some
analysts' notes may be written simply as reminders to self.
See id., at 20, 52. In those cases, the record would not count
as testimonial. To do so, the document's primary purpose
must have “a focus on court.” Id., at 52. And again, the
state court on remand should make that assessment as to
each record whose substance Longoni conveyed.
IV
Our holding today follows from all this Court has held
about the Confrontation Clause's application to forensic evi-
dence. A State may not introduce the testimonial out-of-
court statements of a forensic analyst at trial, unless she is
Cite as: 602 U. S. 779 (2024) 803
Thomas, J., concurring in part
unavailable and the defendant has had a prior chance to
cross-examine her. See Crawford, 541 U. S., at 68;
Melendez-Diaz, 557 U. S., at 311. Neither may the State in-
troduce those statements through a surrogate analyst who
did not participate in their creation. See Bullcoming, 564
U. S., at 663. And nothing changes if the surrogate—as in
this case—presents the out-of-court statements as the basis
for his expert opinion. Those statements, as we have ex-
plained, come into evidence for their truth—because only if
true can they provide a reason to credit the substitute ex-
pert. So a defendant has the right to cross-examine the per-
son who made them.
That means Arizona does not escape the Confrontation
Clause just because Rast's records came in to explain the
basis of Longoni's opinion. The Arizona Court of Appeals
thought otherwise, and so we vacate its judgment. To ad-
dress the additional issue of whether Rast's records were
testimonial (including whether that issue was forfeited), we
Page Proof Pending Publication
remand the case for further proceedings not inconsistent
with this opinion.
It is so ordered.
Justice Thomas, concurring in part.
I join the Court in all but Part III of its opinion. The
Sixth Amendment's Confrontation Clause provides: “In all
criminal prosecutions, the accused shall enjoy the right . . . to
be confronted with the witnesses against him.” This Clause
bars the admission of an absent witness's testimonial state-
ments for their truth, unless the witness is unavailable and the
defendant previously had an opportunity to cross-examine
that witness. See Crawford v. Washington, 541 U. S. 36,
50–56, 60, n. 9 (2004). Today, the Court correctly concludes
that “[w]hen an expert conveys an absent analyst's state-
ments in support of his opinion, and the statements provide
that support only if true, then the statements come into evi-
dence for their truth.” Ante, at 783; see also Williams v.
804 SMITH v. ARIZONA
Thomas, J., concurring in part
Illinois, 567 U. S. 50, 106 (2012) (Thomas, J., concurring in
judgment). But, a question remains whether that analyst's
statements were testimonial. I agree with the Court that,
because the courts below did not consider this question, we
should remand for the Arizona Court of Appeals to answer
it in the frst instance. Ante, at 801. But, I disagree with
the Court's suggestion that the Arizona Court of Appeals
should answer that question by looking to each statement's
“primary purpose.” Ante, at 801–802.
I continue to adhere to my view that “the Confrontation
Clause is implicated by extrajudicial statements only insofar
as they are contained in formalized testimonial materials,
such as affdavits, depositions, prior testimony, or confes-
sions. ”* Whi te v. Illinois, 502 U. S. 346, 365 (1992)
(Thomas, J., concurring in part and concurring in judgment);
see also Ohio v. Clark, 576 U. S. 237, 254–255 (2015)
(Thomas, J., concurring in judgment); Williams, 567 U. S.,
at 110–111 (opinion of Thomas, J.); Michigan v. Bryant, 562
Page Proof Pending Publication
U. S. 344, 379 (2011) (Thomas, J., concurring in judgment);
Melendez-Diaz v. Massachusetts, 557 U. S. 305, 329 (2009)
(Thomas, J., concurring); Giles v. California, 554 U. S. 353,
377–378 (2008) (Thomas, J., concurring); Davis v. Washing-
ton, 547 U. S. 813, 837 (2006) (opinion of Thomas, J.); Lilly v.
Virginia, 527 U. S. 116, 143 (1999) (Thomas, J., concurring
in part and concurring in judgment). The Confrontation
Clause guarantees a criminal defendant “the right . . . to be
confronted with the witnesses against him.” Amdt. 6. As
I have previously explained, “[w]itnesses . . . are those who
bear testimony. And testimony is a solemn declaration or
affrmation made for the purpose of establishing or proving
some fact.” Davis, 547 U. S., at 836 (opinion of Thomas, J.)
(citations, internal quotation marks, and alterations omitted).
*The Confrontation Clause “also reaches the use of technically informal
statements when used to evade the formalized process.” Davis v. Wash-
ington, 547 U. S. 813, 838 (2006) (Thomas, J., concurring in judgment in
part and dissenting in part).
Cite as: 602 U. S. 779 (2024) 805
Gorsuch, J., concurring in part
This understanding is grounded in “[t]he history surround-
ing the right to confrontation,” which “was developed to tar-
get particular practices that occurred under the English bail
and committal statutes passed during the reign of Queen
Mary, namely, the civil-law mode of criminal procedure, and
particularly its use of ex parte examinations as evidence
against the accused.” Id., at 835 (internal quotation marks
omitted). Rather than attempt to divine a statement's “pri-
mary purpose,” I would look for whether the statement is
“similar in solemnity to the Marian examination practices
that the Confrontation Clause was designed to prevent.”
Williams, 567 U. S., at 112 (opinion of Thomas, J.). In my
view, the Arizona Court of Appeals should consider on re-
mand whether the statements at issue have the requisite for-
mality and solemnity to qualify as testimonial. If they do
not, the Confrontation Clause poses no barrier to their
admission.
Page
Justice Proof Pending
Gorsuch, concurring in part.Publication
I am pleased to join the Court's opinion holding that, when
an expert presents another's statements as the “basis” for
his own opinion, he is offering those statements for their
truth. See Parts I, II, and IV, ante.
I cannot join, however, the Court's discussion in Part III
about when an absent analyst's statement might qualify as
“testimonial.” See ante, at 800–802. As the Court says,
“that issue is not now ft for our resolution.” Ante, at 801.
It was not part of the question presented for our review, nor
was it the focus of the decision below. Ibid. In fact, the
State devoted so little attention to the “testimonial” issue in
the Arizona courts that any argument it might make on the
subject on remand may be forfeited. Ibid. Further, the
Court's thoughts on the subject are in no way necessary to
the resolution of today's dispute. What makes a statement
testimonial, the Court notes, is an entirely “separate” issue.
Ante, at 800.
806 SMITH v. ARIZONA
Gorsuch, J., concurring in part
Nor am I entirely sure about the guidance found in Part
III. The Sixth Amendment protects the accused's “right . . .
to be confronted with the witnesses against him.” As the
Court sees it, whether a statement being offered for its truth
and tendency to inculpate a defendant triggers that right
depends “on the `primary purpose' of the statement, and in
particular on how it relates to a future criminal proceeding.”
Ante, at 800. I cannot help but wonder whether that is
correct.
Just consider a few other possibilities. In protecting the
right to confront “witnesses,” perhaps the Sixth Amendment
reaches any “person who gives or furnishes evidence.”
United States v. Hubbell, 530 U. S. 27, 49–50 (2000) (Thomas,
J., concurring) (discussing founding-era meaning of the word
“witness” in the Fifth Amendment); see also id., at 50, n. 1.
Or perhaps the Amendment reaches all “those who `bear tes-
timony.' ” Crawford v. Washington, 541 U. S. 36, 51 (2004)
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(quoting 2 N. Webster, An American Dictionary of the Eng-
lish Language (1828)). Perhaps, too, a statement “bears tes-
timony” so long as it “explicitly or implicitly . . . relate[s] a
factual assertion or disclose[s] information.” Doe v. United
States, 487 U. S. 201, 210 (1988) (discussing what makes a
statement “testimonial” for purposes of the Fifth Amend-
ment); see also 2 Webster, An American Dictionary (observ-
ing near the founding that “testimony” could mean “evi-
dence” and “proof of some fact” as well as a “solemn
declaration or affrmation” made to “establis[h] or prov[e]
some fact”). To my mind, all these questions (and maybe
others too) warrant careful exploration in a case that pre-
sents them and, without more assurance, I worry that the
Court's proposed “primary purpose” test may be a limitation
of our own creation on the confrontation right.
I am concerned, as well, about the confusion a “primary
purpose” test may engender. Does it focus, for example, on
the purposes an objective observer would assign to a chal-
Cite as: 602 U. S. 779 (2024) 807
Alito, J., concurring in judgment
lenged statement, see ante, at 784–785 (referencing the “ `ob-
jective witness' ”), the declarant's purposes in making it, see
ante, at 802 (asking “why Rast created the report or notes”),
the government's purposes in “ `procur[ing]' ” it, see ante, at
784, or maybe still some other point of reference? Even
after we fgure out a statement's purposes, how do we pick
the primary one out of the several a statement might serve?
Or determine in exactly what way that purpose must “re-
lat[e] to a future criminal proceeding”? Ante, at 800. And
if we fail to fnd some foothold in text and historical practice
for resolving these questions, how can judges answer them
without resort to their own notions of what would be best?
Some time ago, Chief Justice Marshall charged the judi-
ciary with “be[ing] watchful of every inroad” on the accused's
right to be confronted with the witnesses against him.
United States v. Burr, 25 F. Cas. 187, 193 (No. 14,694) (CC
Va. 1807). With that cautionary note in mind, I respectfully
Page Proof Pending Publication
concur in all but Part III of the Court's opinion.
Justice Alito, with whom The Chief Justice joins, con-
curring in the judgment.
Today, the Court inficts a needless, unwarranted, and
crippling wound on modern evidence law. There was a time
when expert witnesses were required to express their opin-
ions as responses to hypothetical questions. But eventually,
this highly artifcial, awkward, confusing, and abuse-laden
form of testimony earned virtually unanimous condemnation.
More than a century ago, judges, evidence scholars, and legal
reform associations began to recommend that courts abandon
the required use of hypotheticals, and more than 50 years
ago, the Federal Rules of Evidence did so. Now, however,
the Court proclaims that a prosecution expert will frequently
violate the Confrontation Clause when he testifes in strict
compliance with the Federal Rules of Evidence and similar
modern state rules. Instead, the Court suggests that such
808 SMITH v. ARIZONA
Alito, J., concurring in judgment
experts revert to the form that was buried a half-century
ago. Ante, at 799. There is no good reason for this radi-
cal change.
I
To explain why I think the Court has gone far astray, I
begin with a brief look at the history of expert testimony—
and particularly, why the hypothetical-question requirement
was replaced by the (superior) mode of testimony allowed by
the Federal Rules of Evidence.
A
Expert testimony presents a challenge for a legal system
like ours that restricts a fact-fnder's ability to consider hear-
say. This is so because an expert's opinion very often is
based on facts that are not proved in court. As a modern
treatise puts it, the value of experts lies in their ability to
“brin[g] to bear a body of knowledge largely extraneous to
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the facts of the particular case.” D. Kaye, D. Bernstein, A.
Ferguson, M. Wittlin, & J. Mnookin, The New Wigmore: Ex-
pert Evidence § 1.2.1, p. 4 (3d ed. 2021) (Kaye). Wigmore
made the same point when he wrote that “[n]o one profes-
sional man can know from personal observation more than a
minute fraction of the data which he must every day treat
as working truths.” 1 J. Wigmore, Evidence § 665(3), p. 762
(1904) (Wigmore). Instead, experts routinely “rel[y] on the
reported data of fellow-scientists, learned by perusing their
reports in books and journals.” Id., at 762–763 (emphasis
deleted); see also Kaye § 4.1, at 165 (“[P]art of an expert's
very expertise inevitably derive[s] from hearsay”).
Despite this problem, courts in Great Britain and this
country long ago recognized the value of expert testimony
and concluded that they “must . . . accept this kind of knowl-
edge from scientifc men,” even if it meant allowing tes-
timony based on facts of which the expert did not have
frsthand knowledge. See 1 Wigmore 763; 1 S. Greenleaf,
Cite as: 602 U. S. 779 (2024) 809
Alito, J., concurring in judgment
Evidence § 430(l), p. 529 (rev. 16th ed. 1899) (“It would be
absurd to deny judicial standing to such knowledge, because
all scientifc data must be handed down from generation to
generation by hearsay, and each student can hope to test only
a trifing fraction of scientifc truth by personal experience”);
Slocovich v. Orient Mut. Ins. Co., 108 N. Y. 56, 64, 14 N. E.
802, 805 (1888) (“An expert is qualifed to give evidence as
to things which he has never seen. He may base an opinion
upon facts proved by other witnesses, or upon facts assumed
and embraced within the case”).
Recognizing this reality, a court in the late-18th century
admitted expert testimony about the seaworthiness of a ship
based on a survey conducted when the expert was not pres-
ent. Thornton v. Royal Exchange Assurance Co., Peake 37,
38, 170 Eng. Rep. 70, 71 (N. P. 1790). Similarly, an early-
19th century decision allowed ship surveyors to testify to the
seaworthiness of a vessel they had never seen. Beckwith v.
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Sydebotham, 1 Camp. 116, 170 Eng. Rep. 897 (N. P. 1807).
The opposing party objected that the experts did not know
the underlying facts to be true, but the court admitted their
opinions because the experts' technical knowledge could as-
sist the jury. Ibid. The fact that “the truth of the facts
stated to them was not certainly known” went to the weight
of the testimony, not its admissibility. Ibid.
Throughout the 19th and into the 20th century, experts
generally testifed in the form of an opinion in response to a
hypothetical question. An attorney would ask an expert to
assume that certain facts were true and would then query
whether a particular conclusion could conceivably follow.
See 3 S. Saltzburg, M. Martin, D. Capra, & J. Berch, Federal
Rules of Evidence Manual § 703.02[1] (13th ed. 2023).
This procedure was highly artifcial because it bore little
resemblance to the way in which experts actually form opin-
ions. And the procedure surely did not conform to the way
lay jurors think and speak.
810 SMITH v. ARIZONA
Alito, J., concurring in judgment
The procedure's aim was to prevent a jury from jumping
to the conclusion that the facts packed into the hypothetical
were true, but it is questionable whether the practice
achieved that objective. For instance, here is the question
that defense counsel asked a psychiatric witness in Charles
Guiteau's trial for murdering President Garfeld:
“Q. . . . Assume it to be a fact that there was a strong
hereditary taint of insanity in the blood of the prisoner
at the bar; also that at about the age of thirty-fve years
his mind was so much deranged that he was a ft subject
to be sent to an insane asylum; also that at different
times from that date during the next succeeding fve
years he manifested such decided symptoms of insanity,
without stimulation, that many different persons conver-
sing with him and observing his conduct believed him
to be insane; also that during the month of June, 1881,
at about the expiration of said term of fve years, he
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honestly became dominated by the idea that he was in-
spired of God to remove by death the President of the
United States; also that he acted upon what he believed
to be such inspiration, and what he believed to be in
accordance with the Divine will, in preparation for and
in the accomplishment of such purpose; also that he com-
mitted the act of shooting the President under what he
believed to be a Divine command which he was not at
liberty to disobey, and which belief amounted to a con-
viction that controlled his conscience and over-powered
his will as to that act, so that he could not resist the
mental pressure upon him; also that immediately after
the shooting he appeared calm and as one relieved by
the performance of a great duty; also that there was no
other adequate motive for the act than the conviction
that he was executing the Divine will for the good of his
country—assuming all these propositions to be true,
state whether in your opinion the prisoner was sane or
insane at the time of shooting President Garfeld?
Cite as: 602 U. S. 779 (2024) 811
Alito, J., concurring in judgment
“A. Assuming those to be true, I should say the prisoner
was insane.” C. Rosenberg, The Trial of the Assassin
Guiteau 144–145 (1968) (Rosenberg).
How likely is it that a jury hearing a question like that would
keep in mind that all the facts loaded into the question were
merely hypothetical and not necessarily supported by the
evidence in the case?
The Guiteau example illustrates many other problems with
hypothetical questioning. For one, hypothetical questions
were “diffcult for the attorneys to frame, for the court to
rule on, and for the jury to understand.” M. Ladd, Expert
Testimony, 5 Vand. L. Rev. 414, 425 (1952) (Ladd). Like the
question above, the hypotheticals were often “so built up and
contrived” that they were impossible for either the jury or
the expert to follow. 1 J. Wigmore, Evidence 1095 (2d ed.
1923) (1 Wigmore 2d); accord, Ladd 427. One case involved
a hypothetical that extended over “eighty-three pages of
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typewritten transcript, and an objection involved in fourteen
pages more of the record.” Treadwell v. Nickel, 194 Cal.
243, 266, 228 P. 25, 35 (1924). Such questions required an
expert to have the extraordinary ability “to comprehend in
one mental operation the entirety of what has been asked so
as to give any answer.” Ladd 427; see, e. g., Editorials, The
Hypothetical Question Again, 24 J. Crim. L. & C. 517, 517–
519 (1933). And juries surely found following lengthy hypo-
theticals even more mystifying.
For another, lawyers often used hypotheticals as a preview
of their closing arguments. See, e.g., Rosenberg 144 (“As-
sume . . . that he committed the act of shooting the President
under what he believed to be a Divine command which he
was not at liberty to disobey . . . so that he could not resist
the mental pressure upon him”); see also S. Gross, Expert
Evidence, 1991 Wis. L. Rev. 1113, 1162 (Gross); 1 Wigmore
2d § 686, at 1095; Ladd 426. In doing so, they sometimes
sneaked in “irrelevant” information, Gross 1162, and ex-
cluded necessary details, W. White, Insanity and the Crimi-
812 SMITH v. ARIZONA
Alito, J., concurring in judgment
nal Law 86 (1923) (White) (describing the hypothetical ques-
tion as “eliminat[ing] from consideration every human
element which every common-sense man takes into consider-
ation when he formulates an opinion”). One medical expert
declared that he “ha[d] never known a hypothetical question,
in a trial involving the mental condition of the defendant,
which in [his] opinion offered a fair presentation of the case.”
Ibid. As a result, experts either provided answers that
were entirely disconnected from “the actual case,” 1 Wig-
more 2d § 686, at 1095, or else they ignored the hypothetical
altogether, White 87.
Because opposing counsel often disagreed for strategic
reasons about which facts should be included in a hypotheti-
cal, constructing a hypothetical that the judge would permit
was often a tricky and contentious business. If counsel did
not include enough facts to satisfy opposing counsel, the hy-
pothetical would be met with an objection, and its suffciency
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would provide grist for an appeal. F. Rossi, Expert Wit-
nesses 114 (1991). The threat of dragging out litigation led
counsel to make their hypotheticals even longer and more
confusing. Ibid.
By the early-20th century, this form of testimony was
scorned. In the second edition of his treatise, issued in 1923,
Wigmore proclaimed the hypothetical question “that feature
which does most to disgust men of science with the law of
Evidence.” 1 Wigmore 2d § 686, at 1094. Around the same
time, Judge Learned Hand labeled hypotheticals “the most
horifc and grotesque wen upon the fair face of justice.” Ad-
dress of L. Hand: The Defciencies of Trials to Reach the
Heart of the Matter, in Lectures on Legal Topics, 1921–1922,
p. 104 (1926). Professor Charles T. McCormick described
hypotheticals as “an obstruction to the administration of
justice.” Some Observations Upon the Opinion Rule and
Expert Testimony, 23 Texas L. Rev. 109, 128 (1945) (Mc-
Cormick). Experts shared these concerns; one lamented
Cite as: 602 U. S. 779 (2024) 813
Alito, J., concurring in judgment
that lawyers' use of hypothetical questions was often “so
unfair and confusing and degrading that it does not clarify
the issue nor help achieve justice.” H. Hulbert, Psychiatric
Testimony in Probate Proceedings, 2 Law & Contemp. Prob.
448, 455 (1935). Eventually, the use of hypothetical ques-
tions was “nearly universally recognized as a practical disas-
ter” by lawyers, judges, and witnesses alike. Kaye § 4.4,
at 189.
This state of affairs sparked efforts to eliminate hypotheti-
cal questions as a requirement. See, e.g., 1 Wigmore 2d
§ 686, at 1094 (“The Hypothetical Question must go, as a re-
quirement. Its abuses have become so obstructive and nau-
seous that no remedy short of extirpation will suffce” (em-
phasis deleted)). Change began frst in the courts, which
allowed experts to sit through trial and then provide their
opinion “ `upon the evidence.' ” 3 C. Chamberlayne, Modern
Law of Evidence §§ 2482, 2483, pp. 3343–3346 (1912).
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More formalized rule changes soon followed. In 1937, the
Commissioners on Uniform State Laws incorporated a provi-
sion in their Model Expert Testimony Act that permitted
experts to give their opinions without preliminarily disclos-
ing their underlying facts or data. Advisory Committee's
Notes on Fed. Rule Evid. 705. In quick succession, both the
Model Code of Evidence, issued by the American Law Insti-
tute in 1942, and the Uniform Rules of Evidence, approved
by the American Bar Association in 1953, recommended
abandonment of hypothetical questions. See ALI, Model
Code of Evidence Rule 409, Comment b, p. 211 (the hypothet-
ical question “has been so grossly abused as to be almost a
scandal”); Uniform Rules of Evidence, Rule 58, Comment, p.
194 (“This rule does away with the necessity of following the
practice (grossly abused) of using the hypothetical ques-
tion”). In 1972, the Federal Rules of Evidence followed suit
with Rules 703 and 705, and many States made similar
changes.
814 SMITH v. ARIZONA
Alito, J., concurring in judgment
B
What replaced hypotheticals was the procedure exempli-
fed by the Federal Rules of Evidence.* Rule 703 provides
that an expert's opinion may be based on “facts or data in the
case that the expert has been made aware of or personally
observed.” And “[u]nless the court orders otherwise,” Rule
705 permits the expert to “state an opinion—and give the
reasons for it—without frst testifying to the underlying
facts or data.”
These facts or data need not be “admissible” in evidence,
and they are not admitted for the truth of what they assert.
Fed. Rule Evid. 703. Instead, these facts or data may,
under some circumstances, be disclosed to the jury for a lim-
ited purpose: to assist the jurors in judging the weight that
should be given to the expert's opinion. Ibid. However,
this is not allowed unless the court determines that “their
probative value in helping the jury evaluate the [expert's]
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opinion substantially outweighs their prejudicial effect.”
Ibid. And to prevent the jury from improperly relying on
basis testimony for the truth of the matters it asserts, a
judge must instruct the jury upon request to consider such
evidence only to assess the quality of the expert's testimony
(i.e., to determine whether an expert's statements are reli-
able). See Advisory Committee's Notes on Fed. Rule Evid.
703, 28 U. S. C. App., p. 393; Fed. Rule Evid. 105 (“If the
court admits evidence that is admissible . . . for a [limited]
purpose—but not . . . for another purpose—the court, on
timely request, must restrict the evidence to its proper scope
and instruct the jury accordingly”).
*I refer to the Federal Rules to illustrate the consequences of the
Court's opinion. The witness in this case testifed in an Arizona state
court, and his testimony was therefore governed by the relevant state
rules, which are virtually identical to the Federal Rules. Of course, the
Arizona courts are free to interpret those rules as they see ft, and I do
not address the question whether the witness's testimony was proper
under Arizona law.
Cite as: 602 U. S. 779 (2024) 815
Alito, J., concurring in judgment
This procedure is sensitive to the risk of jurors' mistakenly
treating an expert's basis testimony as evidence of the truth
of the facts of data upon which the expert relied. The Rules
provide important safeguards against this danger, such as
the stringent “probative value versus potential prejudice”
test and the requirement that a limiting instruction be given
upon request. Plus, of course, an expert's lack of personal
knowledge of the “facts or data” that are called to his atten-
tion can be brought out in cross examination and stressed in
a closing argument.
This modern system is more honest because it refects how
experts actually form opinions. See Advisory Committee's
Notes on Fed. Rule Evid. 703, at 393 (describing the Rule as
“designed to . . . bring the judicial practice into line with the
practice of the experts themselves when not in court”). It
is simpler and less likely to confuse. And it avoids many of
the pitfalls of the old procedure. It may not be perfect—
and evidence scholars have proposed a variety of reforms—
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but it is unquestionably better than the old regime it
replaced.
II
In light of the woeful history of expert testimony by hypo-
theticals, why has the Court disinterred that procedural
monstrosity? The Court reasons that “[i]f an expert for the
prosecution conveys an out-of-court statement in support of
his opinion, and the statement supports that opinion only if
true, then the statement has been offered for the truth of
what it asserts.” Ante, at 795. Or put differently, “the
truth of the basis testimony is what makes it useful to the
prosecutor; that is what supplies the predicate for—and thus
gives value to—the state expert's opinion.” Ibid. In other
words, the Court seems to think that all basis testimony is
necessarily offered for its truth.
This is just plain wrong. What makes basis evidence
“useful” is the assistance it gives the fact-fnder in judging
the weight that should be given to the expert's opinion. See
816 SMITH v. ARIZONA
Alito, J., concurring in judgment
Advisory Committee's Notes on Rule 703, at 394 (basis testi-
mony may be brought before a jury to help it “evaluate the
. . . opinion”). And a trial judge must, upon request, instruct
the jury to consider it only for that purpose. If a judge rules
that basis evidence is not admitted for its truth and so in-
structs the jury, where does the Court discern a Confronta-
tion Clause problem?
The only possible explanation is that the Court believes
that juries are incapable of following such an instruction, but
that conclusion is inconsistent with commonplace trial prac-
tice and with a whole string of our decisions. It is a routine
matter for trial judges to instruct juries that evidence is ad-
mitted for only a limited purpose. This Court acknowledged
as much in United States v. Abel, 469 U. S. 45 (1984), when
it noted that “there is no rule of evidence which provides
that testimony admissible for one purpose and inadmissible
for another purpose is thereby rendered inadmissible; quite
the contrary is the case.” Id., at 56. In such instances,
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courts use limiting instructions. See Fed. Rule Evid. 105; 1
R. Mosteller et al., McCormick on Evidence § 59, pp. 481–483
(8th ed. 2020).
And this Court has repeatedly upheld that practice—even
in “situations with potentially life-and-death stakes for de-
fendants” and even with respect to statements that are
“some of the most compelling evidence of guilt available to a
jury,” Samia v. United States, 599 U. S. 635, 646–647 (2023).
These decisions “credi[t] jurors by refusing to assume that
they are either `too ignorant to comprehend, or were too un-
mindful of their duty to respect, instructions' of the court.”
Id., at 647. Indeed, we have described the assumption
“ `that juries will follow the instructions given them by the
trial judge' ” as “ `crucial' ” to “the system of trial by jury.”
Marshall v. Lonberger, 459 U. S. 422, 438, n. 6 (1983) (quoting
Parker v. Randolph, 442 U. S. 62, 73 (1979)); accord, Francis
v. Franklin, 471 U. S. 307, 324–325, n. 9 (1985).
A brief survey of prior decisions shows how frmly this
Court has adhered to that practice. In Harris v. New York,
Cite as: 602 U. S. 779 (2024) 817
Alito, J., concurring in judgment
401 U. S. 222 (1971), the Court held that statements obtained
from a defendant in violation of Miranda v. Arizona, 384
U. S. 436 (1966), could be introduced to impeach that defend-
ant's credibility, so long as the jury was instructed not to
consider them as evidence of his guilt. In Walder v. United
States, 347 U. S. 62 (1954), the Court affrmed the use of evi-
dence obtained in violation of the Fourth Amendment for
impeachment when the trial court had “carefully charged the
jury” that it could not be considered evidence of guilt. Id.,
at 64. In Spencer v. Texas, 385 U. S. 554 (1967), the Court
upheld the admission of evidence of the defendant's prior
criminal convictions for the purpose of sentence enhance-
ment, provided that the jury was instructed that this evi-
dence could not be used in determining guilt. In Watkins
v. Sowders, 449 U. S. 341 (1981), the Court presumed that
a jury could properly evaluate an eyewitness identifcation
“under the instructions of the trial judge.” Id., at 347.
And in Tennessee v. Street, 471 U. S. 409 (1985), the Court
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approved the admission of an accomplice's incriminating con-
fession given the “pointe[d] instruct[ions] [of] the trial court
`not to consider the truthfulness of [the confession] in any
way whatsoever.' ” Id., at 414–415.
Most recently in Samia, we held that a limiting instruction
was suffcient to defeat a Confrontation Clause claim. In
that homicide case, evidence showed that Samia had traveled
with his codefendant Stillwell to the Philippines to commit a
murder for hire. 599 U. S., at 640. The trial court admitted
Stillwell's confession, which, as redacted, stated that he was
in a van with some “other person” when that person shot the
victim, but the court told the jury that the confession could
be considered only for the purpose of determining whether
Stillwell himself was guilty. Id., at 642. Samia argued that
admitting the confession even with the limiting instruction
would inevitably prejudice him because “other evidence and
statements at trial enabled the jury to immediately infer that
the `other person' described in the confession was Samia him-
self.” Ibid. Nevertheless, we presumed that the jury was
818 SMITH v. ARIZONA
Alito, J., concurring in judgment
able to follow the limiting instruction, and we therefore af-
frmed Samia's murder conviction.
Our cases have recognized only one situation in which a
limiting instruction is insuffcient: where a defendant is di-
rectly incriminated by the extrajudicial statements of a non-
testifying codefendant. Bruton v. United States, 391 U. S.
123 (1968). We have declined to extend that exception, see
Samia, 599 U. S., at 654, and the evidence in question in Bru-
ton cases is worlds away from an expert's basis testimony.
If the Court thinks otherwise, it needs to explain why basis
testimony falls into the Bruton category and creates a
greater risk of juror confusion than all the other situations
in which the Court has assumed that jurors are capable of
following limiting instructions.
III
The Court's assault on modern evidence law is not only
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wrongheaded; it is totally unnecessary. Today's decision va-
cates the Arizona court's judgment because the testifying
expert's testimony was hearsay. I agree with that bottom
line, but not because of the majority's novel theory that basis
testimony is always hearsay. Rather, I would vacate and
remand because the expert's testimony is hearsay under any
mainstream conception, including that of the Federal Rules
of Evidence.
To understand why, begin with the facts. A state forensic
scientist, Elizabeth Rast, tested items seized from the de-
fendant and concluded that they were marijuana and meth-
amphetamine. Rast took notes of her tests, see App. to Pet.
for Cert. 88a–126a, and she signed a report confrming the
results, see id., at 85a–87a. At trial, Rast was unavailable,
so the prosecution called another forensic scientist, Greggory
Longoni, to provide his expert opinion about the testing, and
Longoni relied on Rast's report in doing so.
Under Rules 703 and 705, Longoni could have offered his
expert opinion that, based on the information in Rast's re-
Cite as: 602 U. S. 779 (2024) 819
Alito, J., concurring in judgment
port and notes, the items she tested contained marijuana or
methamphetamine. In so answering, he would acknowledge
that he relied on Rast's report and lab notes to reach his
opinion. He could have also disclosed the information in the
report, if the court found that the probative value of that
information substantially outweighed the risk of prejudice.
See Fed. Rule Evid. 703. But he could not testify that any
of the information in the report was correct—for instance,
that Rast actually performed the tests she recorded or that
she did so correctly. Nor could he testify that the items she
tested were the ones seized from Smith. Longoni did not
have personal knowledge of any of these facts, and it is un-
clear what “reliable” scientifc “methods” could lead him to
intuit their truth from Rast's records. Fed. Rule Evid.
702(c) (defning a permissible expert opinion).
The strictures of the Federal Rules here track the require-
ments of our Confrontation Clause precedents. If Longoni
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testifed to the truth of the fact that Rast actually performed
the tests indicated in her report and notes and that she car-
ried out those tests properly, he violated the Confrontation
Clause—assuming, of course, that the notes were “testimo-
nial,” a question that the Court does not reach. But he
would also violate the Federal Rules, which do not allow
experts to testify to the truth of inadmissible hearsay. In
other words, except for the question whether Rast's report
was “testimonial,” the Federal Rules and the requirements
of the Confrontation Clause are the same. This case thus
offers no occasion to blow up the Federal Rules.
As it happens, I agree with the Court that Longoni
stepped over the line and at times testifed to the truth of the
matter asserted. The prosecution asked Longoni on several
occasions to describe the tests that Rast performed or to swear
to their accuracy, and Longoni played along. He stated
as fact that Rast followed the lab's “typical intake process”
and that she complied with the “policies and practices” of the
lab. App. to Pet. for Cert. 40a–42a. He also testifed that
820 SMITH v. ARIZONA
Alito, J., concurring in judgment
Rast used certain “scientifc method[s]” to analyze the sam-
ples, such as performing certain tests or running a “blank.”
Id., at 41a–42a, 46a–48a. By asserting these facts as true,
Longoni effectively entered inadmissible hearsay into the
record, thus implicating the Confrontation Clause. The
Court could have said that—and stopped there.
* * *
For more than a half-century, the Federal Rules of Evi-
dence and similar state rules have reasonably allowed ex-
perts to disclose the information underlying their opinion.
Because the Court places this form of testimony in constitu-
tional doubt in many cases, I concur only in the judgment.
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
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the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 788, line 19: “opinion” is inserted before “concurring”
p. 815, line 14: “in” is replaced with “into”
Case Information
- Decision Date
- June 21, 2024
- Citation
- 602 U.S. 779
- Status
- Precedential