This webpage is intended to make you aware of a recent decision by the United States Supreme Court that impacts practices nationally in public and private forensic laboratories concerning expert testimony from forensic scientists. We are encouraging you to share this communication with district attorneys, prosecutors, or courts who have any questions about NMS Labs testing or testimony in light of this decision.
Background to Smith v. Arizona
By now, all of you have likely been affected by the United States Supreme Court’s ruling in Smith v. Arizona, Supreme Court Docket No. 22-899, decided on June 21, 2024. The Smith decision follows the Court’s prior decisions in Williams v. Illinois, Bullcoming v. New Mexico, Melendez-Diaz v. Massachusetts, and Crawford v. Washington, the latter of which was decided in 2004. Each of these decisions set forth guidance and parameters relating to an accused’s right to confront witnesses in criminal proceedings under the rights granted by the Sixth Amendment to the U.S. Constitution.
What Smith v. Arizona Means and Does Not Mean
NMS Labs has always respected and serviced our clients’ obligations and needs to the best of our ability. We recognize that each judge, attorney, and client is diligently working for legal resolution of questions related to “testimonial hearsay” as raised in Smith. Reports from published and unpublished court opinions, and conversations with scientific colleagues across the country, and NMS Labs’ own scientific personnel indicate the Smith decision is being read as an absolute prohibition on substitute or surrogate analyst testimony. The decision is also being construed to require the appearance and testimony of everyone in the testing chain. The Smith v. Arizona decision simply does not so state. Smith bars the admission of “testimonial hearsay,” meaning if a substitute witness relies on notes, reports, and related documents that are prepared with a focus for the court, or are reasonably anticipated to be admitted in court, such hearsay is disallowable “testimonial hearsay.” Over the last six weeks since the release of the decision, NMS Labs has consulted with other legal and scientific stakeholders and has developed an analysis, strategy, and resources to support you in your efforts to continue your work with the least possible disruption.
Key Language from Supreme Court Justice Kagan’s Opinion
In Justice Kagan’s opinion in Smith, on pages 19-22, she unequivocally states that “not all laboratory reports are necessarily testimonial.” The opinion states that trial courts should consider the whole range of record-keeping activities of lab analysts. “Some records may not have an evidentiary purpose, such as those created to comply with accreditation requirements or facilitate internal review and quality control.” In those circumstances, the records are not testimonial. If notes, reports, and records on which the surrogate witness relies are not “testimonial,” then the surrogate witness can rely on those records, formulate an independent opinion, and testify. Provided this guidance from the court is followed, then a toxicologist or chemist who has independently reviewed the original data and records can provide their opinions as to the conclusions of the analysis.
External Accreditation and Quality Standards at NMS Labs
Some of NMS Labs reports do end up in court, but NMS Labs does not perform its world leading quality work “with a focus on court.” Our accreditations, certifications, and federal and state licensing credentials provide the gold standard on which we base our testing. Those external systems inform the drafting and implementation of NMS Labs’ standard operating procedures, quality control measures, and systems for quality management and their continuous quality improvement. Our level of quality and excellence in receiving, processing, preparing, testing, and reporting processes and conclusions inform and drive the work of NMS Labs in clinical, forensic, and environmental testing alike. NMS Labs primary purpose is to maintain the integrity of the scientific processes and results in all fields of testing, and the primary purpose for every single decision and supporting record is adherence to the highest scientific and quality management standards.
Upcoming Information from NMS Labs
NMS Labs has followed the Smith decision’s specific guidance in identifying the precise, exact processes from which statements are produced in NMS Labs’ testing. A document will be sent to you shortly in which identification of those specific and precise statements will be concretely linked to accreditation and other standards, quality measures, and performance requirements that provide our foundational primary purposes for our testing intake, processes, and results. Our clients will be provided a resource for you to talk with attorneys, courts, and supervisors about the NMS way and our primary purpose. Once that document and its accompanying narrative explanation are issued, NMS Labs will host an interactive online session to further explain, take questions, and listen to our stakeholders so that problems and concerns can be immediately and clearly addressed.
Do you have any questions you would like us to cover in the online session? Please click the link below to submit your question for the webinar.
Reach Out to Us with Any Questions
NMS Labs will share this roadmap with laboratories across the United States. We are all in this evolutionary process together, and we all have attained accreditations, certifications, and credentials that serve as the primary purpose for our scientific work. Our collective primary purpose is scientific and professional excellence, and that must be quickly and clearly stated so that justice systems can continue to function.
Thank you for your patience. NMS Labs is working hard to ensure a reliable foundation for the admissibility of our testing processes and results in your courtrooms. Please continue to reach out to your usual contacts at NMS Labs with any questions about our processes.