Dunlap no longer worked at the lab by the time the case made it to trial three years later, but the report she left behind still led a jury to convict the lawyer, Elana Gordon. A crime lab supervisor testified in Dunlap's stead based on a thorough review of her work.
Substitute testimony like this was not entirely unusual; like anyone else, forensics experts sometimes change jobs, move away or die in the months or years between such tests and trial. But last month, the Massachusetts Supreme Judicial Court overturned Gordon's conviction in light of a recent U.S. Supreme Court decision that strengthened defendants' right to cross-examine the analyst who actually performed the tests.
As state courts grapple with the Supreme Court's broadened application of the Sixth Amendment's confrontation clause, unwary prosecutors and defense attorneys could easily end up in an evidentiary bind.
The high court's opinion last year in Smith v. Arizona
made it easier for expert witnesses to trigger the clause's prohibition on testimonial hearsay statements. That means prosecutors must call those specific analysts — and not substitutes or surrogates — to testify and give the defense the opportunity to cross-examine them, or risk having evidentiary analysis limited or thrown out entirely. The decision is trickling down to state courts, with Massachusetts issuing a comporting opinion in September.The shift is likely to add obligations for criminal law practitioners, particularly in states like Massachusetts, where case law had arguably been at odds with Smith, according to experts.
Ben Golden, an assistant professor of law at New England Law Boston, co-authored an amicus brief in the Gordon case contending the Smith decision would not require changes to Massachusetts law.
In a recent interview, he said he agreed with a concurring opinion in the Gordon decision that argued the majority went too far in finding the substitute expert's opinion violated Gordon's Sixth Amendment right to confrontation.
"I think that an expert should be allowed to give an opinion, even if the expert relied on testimonial hearsay, as long as the expert doesn't repeat that testimonial hearsay on direct examination," he said.
Golden said he believes the Supreme Court's Smith decision should not be read to explicitly forbid that avenue.
With questions remaining about how broadly Smith applies, prosecutors must do everything possible to ensure analysts and experts who interpreted any data for their case will be personally available for trial, or at least an early deposition, experts say.
Defense attorneys, meanwhile, must be prepared to raise not only hearsay objections, but also confrontation clause objections, said Richard Friedman, a University of Michigan School of Law professor who focuses on evidentiary issues.
Smith v. Arizona
In June 2024, the U.S. Supreme Court reached a 9-0 decision overturning an Arizona Court of Appeals ruling to allow testimony from a substitute expert witness in a drug case.
The witness, forensic analyst Gregory Longoni, testified in lieu of Elizabeth Rast, his former colleague at the Arizona Department of Public Safety.
Longoni testified and answered questions relying on Rast's lab report, which concluded the substances found in defendant Jason Smith's possession were methamphetamine and cannabis. Smith was ultimately convicted on drug charges.
The Supreme Court's opinion, authored by Justice Elena Kagan, said a substitute expert's opinion is hearsay if it is based on an absent analyst's statements and relies on the truth of those statements.
If the absent analyst's statements are also testimonial — formally prepared and reasonably expected to be used in court proceedings — they cannot be admitted under the confrontation clause, according to the opinion. The high court found a substitute analyst's testimony to be hearsay but left Arizona courts to decide whether the statements were testimonial in nature.
Confrontation Clause
The clause in question is part of the Sixth Amendment and guarantees criminal defendants the right to be confronted with the witnesses against them. In practice, this means defendants have the constitutional right to cross-examine the government's witnesses so that jurors can gauge the witnesses' honesty.
The Supreme Court has issued several major confrontation clause opinions in recent decades.
Crawford v. Washington
, from 2004, held out-of-court statements deemed to be testimonial are barred unless the witness appears at trial or the defendant had a prior opportunity to cross-examine them.Melendez-Diaz v. Massachusetts
, a 2008 opinion, held that analysts must be made available for cross-examination, rejecting prosecutors' attempt to instead submit sworn certificates of analysis of drug test results. The opinion, authored by the late Justice Antonin Scalia, acknowledged forensic evidence is "not uniquely immune from the risk of manipulation" or error.In an amicus brief in the Smith case, the National District Attorneys Association said the requirement to provide testimony from the original analyst in every case could create insurmountable hurdles for prosecutors.
The National Association of Criminal Defense Lawyers, meanwhile, argued many states already recognized defendants' right to "be confronted with" analysts who authored reports relied on by prosecutors' expert witnesses. The group said it "does not agree that the court has the authority to relax the confrontation right for the sake of convenience."
After Smith, state high courts in Maine, Massachusetts, Ohio and Washington have issued opinions barring experts from giving opinions on results or analyses generated by other, nontestifying experts. Appellate courts in California, North Carolina and Minnesota have issued similar rulings.
Each ruling may have its own peculiarities and raise unique questions, however, so prosecutors and defense attorneys should be prepared to retest key forensic evidence if need be, experts say.
What Attorneys Should Know
Jessica Berch, an associate teaching professor at Arizona State University's Sandra Day O'Connor School of Law, gave continuing legal education classes over the summer to prosecutors about how to safeguard their evidence post-Smith. Failing to ensure the future availability of an expert or analyst directly involved in the forensic process could imperil the case or lead to increased costs down the line, she and other experts said.
Subpoenas may work for some analysts who have changed jobs, moved away or retired — but if the expert is truly unavailable, the easiest way for prosecutors to overcome an absent analyst is to have the forensics lab retest the evidence and have the new analyst testify, Berch added.
Friedman said another potential avenue would be to depose the analyst early on, allowing the defense to cross-examine the witness; the deposition would likely hold up in the event the analyst is absent.
Otherwise, prosecutors would be stuck with an unattractive proposition: Their expert witness could give an opinion to jurors but be forbidden from explaining how they reached the opinion on direct examination. This would give the defense an advantage on cross-examination.
For instance, an expert could say she believes a white, powdery substance was cocaine but could not say why, likely leaving jurors suspicious.
"And the defendant would cross-examine to reveal the weakness of the testimony," said Golden, the New England Law assistant professor. Smith may not necessarily preclude this option, unfavorable as it may be, but the Massachusetts Supreme Judicial Court's Gordon opinion does, he added.
Defense attorneys, meanwhile, have a duty to ensure prosecutors do not introduce testimony that Smith and related decisions forbid, according to experts.
"They have to be on the ball, and they've got to make sure that they make an objection not only on hearsay grounds, but on confrontation grounds," Friedman said.
But if prosecutors do have evidence retested and analyzed, it would give defense attorneys something to work with, according to Berch.
"You want the testing analysts on the stand," Berch said. "So now go ahead and cross-examine them."
--Additional reporting by Katie Buehler and Julie Manganis. Editing by Philip Shea and Jay Jackson Jr.
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