The 6th Amendment of the Constitution provides that any person who is charged with a crime has the right to confront the witnesses (accusers) against him.  Here, this applies to Experts who form their opinion based upon absent analysts work.

Arizona Background:

Previously in Arizona, if an analysts performed work on a case, they would be required to testify to the work they performed.  In a DUI case, the analysts who performed the blood alcohol concentration (BAC) tests would be required to come to Court to testify to the results of the tests and how the analysis was conducted.

However, if the analyst was unable to come to Court, the State would bring in a “cold” expert witness to testify to the work done by the absentee analyst.  A “cold” expert simply means a person who is qualified to do the same work that was done, did not do the work themselves, and is using the other persons work to form the basis of their “expert opinion.”  The State previously relied upon the premise that the absent analysts work and reports were not being used for the “truth of the matter asserted.” Crawford v. Washington 541 U.S. 36, at 60.

Smith v. Arizona Background:

In 2019, Arizona Law Enforcement executed a warrant in Yuma County.  Smith was found inside along with a large quantity of drugs and paraphernalia.  As such, Smith was charged with numerous felonies for possession of dangerous drugs, possession of marijuana, possession of narcotic drugs, and drug paraphernalia.

The State send the drugs to Arizona Department of Public Safety crime lab for analysis.  Analyst Elizabeth Rast discussed with prosecutors which items she was supposed to test and analyze.  She ran the tests, prepared a set of typed notes and report.  These notes gave a descriptions of each item, weight and how the weight was measured.  The notes also discussed the types of testing equipment that was used and how the tests were performed for analysis.

When it came time for trial, Rast was no longer working as an analyst.  Instead, the State sought to call a different DPS analyst as their expert witness, Gregory Longoni. Langoni had not previously performed any work on the case but was simply going to give an “independent opinion on the drug testing performed by Elizabeth Rast.”  Langoni simply testified to the types of analysis that Rast did and relied upon her notes to form his basis.

“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 statement come into evidence for their truth.”


Smith was convicted and appealed.  Arizona Court of Appeals rejected his Confrontation Clause claim and affirmed Smith’s convictions.  The US Supreme Court granted certiorari. See Court opinion

The Justices considered whether the absent analyst’s statements were introduced for their truth.  Ultimately, the Court agreed that in these cases, when a “cold” expert forms their opinions based upon the work of an absent analyst, then those notes and reports from the absent analyst are being asserted for their truth and the Confrontation Clause is triggered.

About the Author: Ryan W. Cummings

Ryan attended the University of Evansville in Indiana where he earned his Bachelor of Science in Finance and Marketing and was a member of Lambda Chi Alpha. He then received his Juris Doctorate from the Phoenix School of Law where he accelerated his education to graduate early. While at the Phoenix School of Law, Ryan was active within the legal community and was the school’s Student Pro- Bono Coordinator. Ryan also joined the Steering Committee on Arizona Wills for Heroes, a group that writes wills for Police, Fire, EMT, First Responders, Prison and Probation Officers. Ryan is still part of the Steering Committee and actively participates in Wills for Heroes.