Published on: Tuesday, October 3, 2023

The Supreme Court added two new criminal cases to its docket after its long conference last Friday. 

In Smith v. Arizona, No. 22-899, the Court will decide if the Confrontation Clause of the Sixth Amendment permits the prosecution in a criminal trial to present testimony by a substitute expert conveying the testimonial statements of a non-testifying forensic analyst, on the grounds that (a) the testifying expert offers some independent opinion and the analyst’s statements are offered not for their truth but to explain the expert’s opinion, and (b) the defendant did not independently seek to subpoena the analyst.  

In McIntosh v. United States, No. 22-7386, the Court will decide if a district court can enter a criminal forfeiture order outside the time limitations set forth in Federal Rule of Criminal Procedure 32.2.