Smith v. Arizona

JUSTICE GORSUCH, concurring in part.¶

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 19–21. As the Court says, “that issue is not now fit for our resolution.” Ante , at 19. It was not part of the question presented for our review, nor was it the focus of the decision below. Ante , at 19–20 . 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. Ante , at 20. 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 19.¶

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 19 . 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 testimony.'' Crawford v. Washington , 541 U. S. 36, 51 (2004) (quoting 2 N. Webster, An American Dictionary of the English Language (1828)). Perhaps, too, a statement “bears testimony” 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 Amendment); see also 2 Webster, An American Dictionary (observing near the founding that “testimony” could mean “evidence” and “proof of some fact” as well as a “solemn declaration or affirmation” 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 presents 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 challenged statement, see ante , at 3 (referencing the ''objective witness''), the declarant’s purposes in making it, see ante , at 21 (asking “why Rast created the report or notes”), the government’s purposes in ''procur[ing]'' it, see ante , at 3, or maybe still some other point of reference? Even after we figure 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 “relat[e] to a future criminal proceeding”? Ante , at 19. And if we fail to find 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 judiciary 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 concur in all but Part III of the Court’s opinion.¶