The Nine closed out OT23 with their so-called “clean-up conference” last Tuesday, issuing multiple GVRs in cases controlled by recent opinions and granting cert in five new cases for OT24. We’ll attend to some clean-up of our own with this penultimate Update of the term, covering three decisions that were somewhat obscured amidst the end-of-term blockbusters: Smith v. Arizona (No. 22-899), unanimously holding that a crime lab analyst’s notes and report were introduced for their truth, triggering a Confrontation Clause issue, but with significant disagreements about why and what comes next; Erlinger v. United States (No. 23-370), holding 6-3 that a jury, not a judge, must decide whether particular offenses were committed on separate occasions for purposes of triggering ACCA’s enhanced mandatory-minimum sentences; and Department of State v. Muñoz (No. 23-334), in which a 6-3 Court held that a U.S. citizen has no constitutionally protected liberty interest in her husband obtaining a visa so as to live with her in the United States. We’ll be back once more to close out the term with our summary of Trump v. United States (No. 23-939).
We’ll start with Smith v. Arizona, where the Court held when an expert witness conveys an absent lab analyst’s statements in support of the expert’s opinion, and those statements can provide that support only if they are true, the statements are being admitted into evidence for their truth. That means that if the statements are “testimonial,” the Sixth Amendment’s Confrontation Clause will bar their admission. But the Court didn’t actually decide whether the statements here were testimonial, instead leaving that to the lower courts in the first instance, with some guidance about how they might do that. While the Court’s judgment remanding the case was unanimous, the case nonetheless prompted four separate opinions, with two justices accusing the majority of perpetrating an “assault on modern evidence law.”
This case began with a drug bust in the desert. In December 2019, Arizona law enforcement officers executed a search warrant on a property in Yuma County, where they found Jason Smith and a large quantity of substances that appeared to be illegal drugs. After Smith pleaded not guilty to drug-possession charges, Arizona sent the substances to a state-run crime lab for a “full scientific analysis.” That analysis was performed by Analyst Elizabeth Rast, who concluded the substances contained usable quantities of several illegal drugs, a finding she documented in her notes and a report. But by the time Smith’s trial came around, Rast no longer worked at the lab and wasn’t available to testify. So Arizona called a different analyst, Greggory Longoni, who conveyed the substance of Rast’s notes and report before offering his own purportedly “independent opinion” that drugs were present in the tested substances.
After the jury convicted Smith, he appealed, arguing the State’s use of a “substitute expert” who had not participated in any of the testing violated the Sixth Amendment’s Confrontation Clause. The Arizona Court of Appeals nevertheless affirmed his conviction, relying on Arizona precedent holding that an expert may testify to the substance of a non-testifying expert’s analysis if such evidence forms the basis of the testifying expert’s opinion, on the theory that the “underlying facts” are being only used to show the basis of the testifying expert’s opinion not to prove the truth of those underlying facts.
The Court unanimously rejected the Arizona Court of Appeals’ approach but with substantial disagreement about why and the consequences of its error. Justice Kagan wrote the majority opinion, which was joined by Justices Sotomayor, Kavanaugh, Barrett, and Jackson in full and Justices Thomas and Gorsuch in part. Kagan began with a scholarly discussion of the Court’s Confrontation Clause precedent. The Clause provides “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” It accordingly bars the admission at trial of an absent witness’s statements unless the witness is unavailable and the defendant had an earlier chance to cross-examine her. But the Clause only applies to “testimonial hearsay,” that is, “testimonial” out-of-court statements offered to “prove the truth of the matter asserted.” That framework led directly to a hearsay question: Were Rast’s statements about her lab work introduced at trial for their truth?
Before providing the answer, Justice Kagan took a step back and addressed a more fundamental issue: the reason for introducing “basis” statements like Rast’s in the first place. In the majority’s view, those statements are always introduced to prove the statement is true, as “[t]he whole point” of a prosecutor eliciting a basis statement is to show that because the statement is true, there’s a basis for the jury to credit the testifying expert’s opinion. Put differently, the truth of the basis testimony is what makes it useful to a prosecutor, as it gives value to the testifying expert’s opinion. Given this, Kagan unsurprisingly concluded that Rast’s statements were introduced for their truth. Indeed, all Longoni’s expert opinions were based on the truth of Rast’s factual statements, as he could only say the tested substances contained usable quantities of illegal drugs because he accepted Rast’s records indicating she had performed certain tests and had received certain results. The jury, in turn, could only credit Longoni’s opinions because it accepted the truth of Rast’s records. All this meant that Rast’s statements were being introduced for their truth, triggering a possible Confrontation Clause problem.
The majority then turned to two subjects that, while likely dicta, provoked the ire of four justices. First, Justice Kagan clarified that the Confrontation Clause still carves out a role for experts like Longoni in criminal trials. For instance, since Longoni worked in the same lab as Rast, he could have testified as to the lab’s standards, practices, and procedures for testing substances. Or he could have answered a hypothetical question, “taking the form of: ‘If or assuming some out-of-court statement were true, what would follow from it?’”
Second, in a discussion that Justices Thomas and Gorsuch didn’t join, Justice Kagan declined to determine whether Rast’s records were testimonial because that issue wasn’t raised in Smith’s petition for certiorari (and was arguably forfeited). But she nonetheless provided “a few thoughts” concerning the “questions the state court might usefully address” on remand. First, the state court would have to determine which of Rast’s statements were at issue. And second, the court would need to identify the “primary purpose” of those statements: Were Rast’s notes and reports written simply as reminders or for internal quality control, or were they created with the ultimate goal of being used in court? Ultimately, it was for the Arizona courts to determine whether Rast’s statements were testimonial, meaning that their introduction at trial violated Smith’s Sixth Amendment rights.
Justice Thomas joined the Court’s opinion in full except for this last discussion. In a separate concurrence, he agreed with the Court’s holding on basis testimony and its refusal to decide whether Rast’s statements were testimonial in the first instance, but he disagreed with the Court’s instruction that the Arizona Court of Appeals should decide the issue by looking to each statement’s “primary purpose.” To Thomas, the Confrontation Clause is only implicated by statements in “formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.” Thomas based this approach on practices that occurred under the English bail and committal statutes passed during Queen Mary’s reign, historical precedent that spurred the creation of the Confrontation Clause. In Thomas’s view, then, the ultimate question should be whether Rast’s statements were “similar in solemnity to the Marian examination practices the Confrontation Clause was designed to prevent.”
Justice Gorsuch also joined all but the Court’s discussion on testimonial statements. But his objection was simpler: Because the Court had (rightly) declined to address the issue, it should not have said anything at all. Like Justice Thomas, he thus took issue with the Court instructing the Arizona Court of Appeals to focus on the “primary purpose” of Rast’s statements. But unlike Thomas, Gorsuch did not propose an alternative, instead observing that due to the difficulties in crafting such a test, the Court should address the question more fully in a future case.
Justice Alito, joined by the Chief Justice, concurred only in the judgment. While he agreed Rast’s statements were hearsay, he would have reached that conclusion without also determining that all basis testimony is introduced for its truth. That determination, Justice Alito wrote, “is just plain wrong,” as basis evidence is useful because it assists the jury in judging the weight it should give to an expert’s opinion, and a trial judge must, upon request, instruct the jury to consider it only for that purpose. Alito then directed his fire at the Court’s suggestion that experts could be asked hypothetical questions in lieu of questions that would elicit basis testimony. After going through the history of posing hypothetical questions like these to show that they are a “procedural monstrosity,” he explained that what replaced them, Federal Rules of Evidence 703 and 705, work just fine. Those rules, which allow an expert to testify based on facts she “has been made aware of or personally observed” and to form opinions without testifying about such facts, address the risk that jurors could mistakenly treat basis testimony as evidence of the truth of such facts. Indeed, while these facts could be disclosed to jurors, they can only be disclosed to help them assess the weight that should be given to an expert’s opinion. And even then, these facts can only be disclosed if the trial court determines their probative value in helping the jury outweighs their prejudicial effect.
In Erlinger v. United States, the Supreme Court addressed the Fifth and Sixth Amendment right to a jury trial and the implications of Apprendi v. New Jersey (2000), which held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Does Apprendi require a jury to decide whether certain offenses were committed on separate occasions for the purposes of triggering the enhanced sentences of the Armed Career Criminal Act (ACCA)? Writing for a six-justice majority, Justice Gorsuch concluded that it does.
After Paul Erlinger pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. §922(g), his sentencing judge found him eligible for an enhanced sentence under ACCA, which increases—from ten to fifteen years—the statutory minimum penalty for a §922(g) conviction when the defendant has three or more qualifying convictions for offenses committed “on occasions different from one another.” Erlinger argued in the District Court that a set of burglaries he committed over a series of several days were essentially a single criminal scheme and did not qualify as crimes committed on separate occasions. But the District Court found otherwise and imposed a fifteen-year sentence. Erlinger then appealed to the Seventh Circuit, arguing that he was entitled under Apprendi to have a jury determine whether the burglaries were committed on separate occasions. But the Seventh Circuit rejected that argument and affirmed.
In a 6-3 majority opinion authored by Justice Gorsuch and joined by Chief Justice Roberts and Justices Thomas, Sotomayor, Kagan, and Barrett, the Court held that the Seventh Circuit and District Court got it wrong. Justice Gorsuch began by examining the history of the right to trial by jury and reasoned that the inquiry into whether offenses were separate was highly fact-intensive and properly within the province of the jury under the reasoning of Apprendi. In so holding, Gorsuch rejected any reliance on Almendarez-Torres v. United States (1998), which permitted a judge to find the fact of a prior conviction, characterizing that decision as a narrow exception and stark outlier within the Court’s jurisprudence. Gorsuch also rejected the argument that tasking juries with addressing the separate-occasions inquiry could prejudice defendants, because prosecutors would need to give juries extensive details of prior misconduct in order to prove prior crimes took place on separate occasions. In the majority’s view, that sort of policy argument must yield to the constitutional mandate. Further, bifurcation could be used to ameliorate the prejudicial effect that evidence of past crimes might have on a jury. Gorsuch finally noted that amici like the National Association of Criminal Defense Lawyers and the National Association of Federal Defenders were supporting Erlinger, and it was unlikely these organizations had been tricked into advocating for a rule that would harm criminal defendants in aggregate.
Chief Justice Roberts filed a brief concurrence. He agreed that the Fifth and Sixth Amendments provide a defendant with the right to a jury determination as to the separate-occasions inquiry. But on remand, he reminded the Seventh Circuit to consider the Government’s contention that any violation of Erlinger’s rights here was harmless.
Justice Thomas also concurred. He wrote separately to argue that Almendarez-Torres was wrongly decided (an issue the majority had expressly declined to reach). As he has argued in the past, he believes that Almendarez-Torres conflicts with the guarantees of the Sixth Amendment by allowing a judge to find facts relevant to sentencing.
Justice Kavanaugh authored a dissenting opinion, joined by Justice Alito in full and in part by Justice Jackson. Kavanaugh would apply the reasoning of Almendarez-Torres and permit a judge to make the separate-occasions determination. In the portion of his opinion not joined by Justice Jackson, Kavanaugh further reasoned that, even if the majority were correct that the District Court erred in making the separate-occasions inquiry itself, any error was harmless because Erlinger’s burglaries were obviously committed on separate occasions.
Justice Jackson also authored her own dissenting opinion, which somewhat surprisingly argued that Apprendi was wrongly decided. She cited the risk of prejudice and expressed doubts that juries are properly suited to “deal with the fine-grained, nuanced determinations . . . that are necessary to fairly adjudicate factual questions like the one that [the separate] occasions inquiry raises.” She also deemed the jury requirement “wildly inefficient” in the sentencing process.
Our last case is Department of State v. Muñoz, where the Court held 6-3 that U.S. citizens do not have a constitutionally protected liberty interest in a non-citizen spouse being admitted into the United States. That holding dooms the plaintiff’s claim that immigration officials violated her Fifth Amendment by failing to adequately explain their decision denying her husband a visa to enter the United States.
Sandra Muñoz is a United States citizen who in 2010 married Luis Asencio-Cordero, a citizen of El Salvador. Seeking to obtain a more permanent immigration status for Cordero in the United States, the couple filed a petition with U. S. Citizenship and Immigration Services to have Asencio-Cordero classified as an immediate relative under 8 U.S.C. §§1151(b)(2)(A)(i) and 1154(a)(1)(A). USCIS granted the petition, and Asencio-Cordero subsequently traveled to El Salvador to interview with the consulate there, as required by law. After being interviewed a number of times, a consular officer denied his application, providing no reason other than a citation to §1182(a)(3)(A)(ii), a provision that renders inadmissible a noncitizen whom the officer “knows, or has reasonable ground to believe, seeks to enter the United States to engage solely, principally, or incidentally in” certain specified offenses or “any other unlawful activity.”
As a non-citizen, Asencio-Cordero himself has no constitutional right to enter the United States, so he could not challenge the constitutionality of the visa denial himself. But Muñoz was a citizen with protected Fifth Amendment rights, so she sued the Department of State, asserting that her own constitutional liberty interest in her husband’s visa application was violated by the State Department’s failure to give a sufficient reason for its denial. The District Court granted summary judgment in favor of the State Department, but the Ninth Circuit reversed, holding that Muñoz had a constitutionally protected liberty interest in her husband’s visa application.
The Supreme Court reversed the Ninth Circuit, with Justice Barrett writing for the majority. She began by explaining that under the doctrine of consular nonreviewability, an executive officer’s decision to admit or to exclude an alien is final and conclusive and not subject to judicial review in federal court. True, Trump v. Hawaii (2018) recognized a narrow exception to that doctrine when the denial burdens the constitutional rights of a U.S. citizen. But the Court concluded that no such right was burdened here. Applying the framework set out in Washington v. Glucksberg (1997), Barrett concluded that the fundamental right to marriage was distinct from Muñoz’s asserted right to reside with her noncitizen spouse in the United States. While the majority conceded that the latter right may have been sufficiently fundamental to be implicit in the concept of ordered liberty, they did not believe it was deeply rooted in the traditions of the United States, as throughout American history the government has had the ultimate say in whether to allow noncitizens to enter the country. Accordingly, the State Department’s did not trigger strict scrutiny, and the Court declined to review its final decision.
Justice Gorsuch concurred in the judgment only. He noted that the Government had already provided Muñoz with the only relief she sought, namely additional information regarding the reasons for her husband’s visa denial. He would have reversed the Ninth Circuit on that basis, without reaching the far-reaching constitutional issues the Court decided.
Justice Sotomayor filed a lengthy dissent joined by Justices Kagan and Jackson. She agreed with Justice Gorsuch that the case should have been decided on the narrow grounds that Muñoz had already received the relief she sought. She went on, however, to disagree with the substance of the majority’s opinion. In the dissent’s view, the Government’s actions in preventing a citizen from residing within the country with her spouse burdened the fundamental right to marriage. Sotomayor thus would have applied heightened scrutiny and held that the Government was obligated to provide a facially legitimate bona fide reason for its denial of Asencio-Cordero’s visa.