Smith v. Arizona

Brief of Amici Curiae National Association of Criminal Defense Lawyers, American Civil Liberties Union, and American Civil Liberties Union Foundation of Arizona In Support of Petitioner

Brief filed: 11/20/2023


Smith v. Arizona

Arizona Court of Appeals; Case No. 22-899


The Court will decide in Mr. Smith’s case whether the Sixth Amendment’s confrontation right permits the prosecution in a criminal trial to present testimonial statements of a non-testifying laboratory analyst through an expert who relies on the non-testifying expert’s statement to reach their conclusions. As representatives of the Nation’s criminal defense bar and others with a bird’s eye view on the criminal legal system, amici are uniquely positioned to discuss the practical aspects of this question—that is, whether respecting the confrontation right in this context presents an unacceptable strain or burden on that system. We answer that question with a resounding “no.” The criminal legal system will not face an undue burden if Petitioner’s proffered rule carries the day. First, as amici show, Petitioner’s construction of the confrontation right is already successfully administered in a number of diverse jurisdictions around the country and has not proved unmanageable. Second, this is not surprising, as criminal trials already constitute a very small fraction of criminal prosecutions, and this fraction is no different in those states that already require the authoring analyst to testify in these circumstances.


Jeffrey L. Fisher, NACDL, Stanford, CA; Timothy P. O’Toole, Miller & Chevalier Chartered, Washington, DC; Sarah A. Dowd, Binder & Schwartz LLP, New York, NY; David D. Cole, American Civil Liberties Union, Washington, DC; Claudia Van Wyk, American Civil Liberties Union, Durham, NC; Jared G. Keenan, American Civil Liberties Union Foundation of Arizona, Phoenix, AZ

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