Reaffirming the “Intimate Knowledge” Standard: Technical Reviewer Testimony and the Confrontation Clause After Smith v. Arizona
Commentary on Jeffrey Dale Busby v. State of Mississippi, Miss. Sup. Ct. (Nov. 13, 2025)

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I. Introduction

The decision in Jeffrey Dale Busby v. State of Mississippi sits at the intersection of two important bodies of law:

• The United States Supreme Court’s Confrontation Clause jurisprudence under Crawford, Melendez-Diaz, Bullcoming, and most recently Smith v. Arizona, and
• Mississippi’s longstanding line of cases allowing “technical reviewers” from forensic laboratories to testify in criminal trials.

The Mississippi Supreme Court majority uses Busby’s appeal to reaffirm its “intimate knowledge/active involvement” test for when a technical reviewer may testify about forensic results and sponsor a lab report without violating the Sixth Amendment. At the same time, a forceful concurrence in result only, by Presiding Justice Coleman, contends that Smith v. Arizona has effectively undercut much of that precedent and that the admission of the reviewing analyst’s testimony in Busby’s trial did violate the Confrontation Clause—albeit harmlessly.

The case is therefore significant not because it changes Mississippi law, but because it confirms and defends the State’s existing approach against a serious challenge grounded in the latest U.S. Supreme Court authority.

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II. Background: Facts and Procedural History

A. The Controlled Buy

Busby’s conviction arose from a controlled buy of methamphetamine in Quitman, Mississippi:

• Police used a confidential informant (CI).
• The CI’s person and vehicle were searched to ensure she possessed no drugs beforehand.
• Officers equipped the CI with a concealed camera and gave her $80.
• The CI returned about thirty minutes later without the cash, but with a cigarette package containing a plastic bag of suspected methamphetamine.

Video and still images from the hidden camera showed Busby exchanging the cigarette package for the cash. Officers and the CI testified that the cigarette pack contained methamphetamine.

B. The Forensic Analysis

The substance was sent to the Mississippi Forensics Laboratory. Two different analysts played distinct roles:

• Camille Roy – the primary analyst, who:
  • Received and opened the evidence bag.
  • Examined the substance and determined what tests to perform.
  • Ran the tests and recorded data (including weight, appearance, tests used, and instrumental results).
• Charlotte Cothern – the technical reviewer, who:
  • Did not physically handle or test the substance.
  • Reviewed the “work packet” created by Roy (including all recorded data and test outputs).
  • Checked the data and methodology for correctness.
  • Formed her own independent opinion based on the data.
  • Co-signed the forensic report identifying the substance as 2.84 grams of methamphetamine.

At trial, the State called Cothern (not Roy) to testify:

• On direct examination, she described the lab’s two-step process, her technical review, and her independent conclusion that the substance was methamphetamine.
• The State offered the co-signed lab report, which the trial court admitted over Busby’s Confrontation Clause objection.
• On cross-examination, Cothern admitted she never saw the substance and did not perform the tests; she only reviewed Roy’s packet and instrumentation data.

C. Conviction and Sentence

A grand jury indicted Busby for sale of 2.84 grams of methamphetamine, a Schedule II controlled substance, under Mississippi Code section 41‑29‑139(a)(1). The jury convicted him. Because of his status as:

• a second-and-subsequent drug offender, and
• a habitual offender,

the court sentenced Busby to forty years’ imprisonment under Mississippi Code sections 41‑29‑147 and 99‑19‑81. Busby did not challenge his habitual status or sentence on appeal; he raised one issue only: whether admission of Cothern’s testimony and the co-signed report violated the Sixth Amendment Confrontation Clause.

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III. Summary of the Opinion

A. Holding of the Majority

The Mississippi Supreme Court (per Justice Maxwell; joined by Chief Justice Randolph and Justices Chamberlin, Griffis, and Branning) affirmed the conviction and sentence. The Court held:

1. Under Mississippi’s established precedent, a technical reviewer may testify about forensic testing and sponsor the lab report if the reviewer:
   • was “actively involved in the production of the report,” and
   • had “intimate knowledge of the analyses,”
   even though the reviewer did not personally perform the tests.
2. Based on the record, Cothern satisfied this “active involvement and intimate knowledge” standard; therefore:
   • her testimony identifying the substance as methamphetamine, and
   • the admission of the lab report she co-signed
   • did not violate the Confrontation Clause.
3. Mississippi’s technical-reviewer precedents do not conflict with U.S. Supreme Court decisions in Crawford, Melendez-Diaz, Bullcoming, or the recent Smith v. Arizona, because those decisions:
   • address surrogate testimony by analysts with no involvement in the specific testing, or
   • address use of underlying forensic facts as supposed non-hearsay “basis” evidence,
   while Mississippi’s approach requires a testifying analyst with a personal, if limited, connection to the testing process and data.

B. The Concurrence in Result Only

Presiding Justice Coleman, joined by Presiding Justice King and Justices Ishee and Sullivan, concurred in the result (affirmance) but disagreed sharply with the majority’s Confrontation Clause analysis. In his view:

• Cothern had no personal knowledge of key facts (she never saw the substance and did not observe the testing).
• Her testimony simply relayed the absent analyst Roy’s testimonial assertions (weight, color, tests used, and test results).
• Under Melendez-Diaz, Bullcoming, and especially Smith v. Arizona, this is precisely what the Confrontation Clause forbids.
• Accordingly, admission of her testimony and the report violated the Confrontation Clause as interpreted by the U.S. Supreme Court.
• Nonetheless, in light of other, unchallenged evidence identifying the substance as methamphetamine, any error was harmless beyond a reasonable doubt.

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IV. Precedents and Authorities Cited

A. Mississippi’s “Intimate Knowledge / Active Involvement” Line

The majority explicitly situates Busby within a two-decade line of Mississippi decisions permitting technical reviewers to testify:

• McGowen v. State, 859 So. 2d 320 (Miss. 2003)
  • Pre‑Crawford case establishing the core test: a non-testing analyst may testify, and the report may be admitted, if the analyst “was actively involved in the production of the report and had intimate knowledge of analyses even though she did not perform the tests first hand.”
• Grim v. State, 102 So. 3d 1073 (Miss. 2012)
  • Applied McGowen after Crawford, Melendez-Diaz, and Bullcoming.
  • Held that the testifying technical reviewer’s intimate knowledge and active involvement satisfied the Confrontation Clause.
• Jenkins v. State, 102 So. 3d 1063 (Miss. 2012) and Galloway v. State, 122 So. 3d 614 (Miss. 2013)
  • Reaffirmed that a technical reviewer who personally evaluates the data and signs the report may testify and the report may be admitted.
  • In Galloway, the majority expressly declined to adopt the Williams plurality’s approach, preferring its own Grim/McGowen rationale.
• Hingle v. State, 153 So. 3d 659 (Miss. 2014)
  • Held that a reviewing analyst (Fernandez) who did not observe the test could still testify because he:
    • reviewed the primary analyst’s report “line-by-line,”
    • reached an independent conclusion that the pills contained morphine, and
    • signed the report as technical/administrative reviewer.
  • Emphasized that Fernandez had “first-hand knowledge about the specific report being discussed,” distinguishing him from the independent expert in Williams.
• Armstead v. State, 196 So. 3d 913 (Miss. 2016); Christian v. State, 207 So. 3d 1207 (Miss. 2016) (Maxwell, J., specially concurring); Douglas v. State, 378 So. 3d 361 (Miss. 2024); Quinn v. State, 398 So. 3d 256 (Miss. 2024)
  • These later cases consistently applied McGowen/Grim, allowing technical reviewers to testify when they were personally involved in reviewing the data and co-signing the report.
• Conners v. State, 92 So. 3d 676 (Miss. 2012)
  • An important contrast: held it was error to admit ballistics and toxicology reports through a detective with no involvement in their preparation or review.
  • Shows Mississippi draws a line between:
    • purely surrogate witnesses (Conners – not allowed), and
    • technical reviewers with “intimate knowledge” (Grim, Galloway, Hingle – allowed).

Busby’s majority opinion characterizes this line as “clear and consistent,” and treats the facts of Busby as “almost indistinguishable” from Hingle.

B. U.S. Supreme Court and Federal Authorities

• Crawford v. Washington, 541 U.S. 36 (2004)
  • Reoriented the Confrontation Clause analysis away from “reliability” toward whether an out-of-court statement is testimonial.
• Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009)
  • Held that sworn “certificates of analysis” from forensic chemists identifying a substance as a drug are testimonial statements.
  • The prosecution cannot introduce them without producing the analysts for confrontation, absent unavailability and prior opportunity to cross-examine.
• Bullcoming v. New Mexico, 564 U.S. 647 (2011)
  • The State introduced a forensic lab report through the testimony of an analyst who neither:
    • performed the test,
    • observed it, nor
    • signed the certification.
  • The Court held this violated the Confrontation Clause; an analyst cannot serve as a surrogate for another’s testimonial certification.
  • Justice Sotomayor’s concurrence emphasized that the case did not involve:
    • a supervisor, or
    • a reviewer with a “personal, albeit limited, connection” to the test—explicitly leaving that question open.
• Williams v. Illinois, 567 U.S. 50 (2012) (plurality, no majority rationale)
  • The State’s expert testified about a private lab’s DNA report created for law enforcement.
  • The Illinois Supreme Court (and four Justices) treated the underlying DNA report as “basis evidence” not offered for its truth, but merely to explain the expert’s opinion, thus outside the Confrontation Clause.
  • Produced a splintered decision that caused significant confusion in lower courts.
• Smith v. Arizona, 602 U.S. 779, 144 S. Ct. 1785 (2024)
  • Clarified and effectively disapproved the key aspect of the Williams plurality.
  • Held:
    • If the prosecution’s expert conveys an out-of-court statement in support of his opinion, and
    • the opinion depends on that statement being true,
    • then the statement is offered for its truth and is hearsay, subject to the Confrontation Clause if testimonial.
  • Rejected the idea that courts can avoid Confrontation problems by calling underlying forensic facts “not for their truth” when they obviously are.
  • In Smith, the testifying expert had no involvement in the specific testing; he simply reviewed the absent analyst’s report and notes.
• Grim v. Fisher, 816 F.3d 296 (5th Cir. 2016)
  • Federal habeas challenge to Mississippi’s practice.
  • Fifth Circuit held that Bullcoming did not clearly establish that a technical reviewer with some level of involvement in the testing process could not testify.
  • Emphasized that Bullcoming only prohibits:
    • proving a particular fact via an analyst who neither performed nor observed the test, and nor signed the testimonial certification.
  • U.S. Supreme Court denied certiorari, leaving the Fifth Circuit’s reading intact.

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V. Legal Reasoning in the Majority Opinion

A. The Standard of Review

The Court reviews Confrontation Clause objections de novo. That means it independently examines the constitutional issue without deference to the trial court’s legal conclusions.

B. Application of the Technical-Reviewer Doctrine

The core of the majority’s reasoning is straightforward:

1. Mississippi law permits a technical reviewer to testify about a lab report and test results if the reviewer:
   • was “actively involved in the production of the report,” and
   • had “intimate knowledge of the analyses,”
   even if she did not physically perform the tests.
2. The record shows that:
   • Cothern is a forensic drug analyst and technical reviewer,
   • She reviewed the entire “work packet” (weight, physical description, instrumentation outputs, tests performed),
   • She checked the results for accuracy and compliance with lab protocols,
   • She formed her own independent opinion that the substance was 2.84 grams of methamphetamine, and
   • She co-signed the forensic report.
3. This level of involvement is, in the majority’s view, “almost indistinguishable” from the facts in Hingle, where the Court unanimously allowed the technical reviewer to testify.
4. Therefore, under McGowen, Grim, Galloway, Hingle, Douglas, and Quinn, there is no Confrontation Clause violation.

The majority explicitly rejects the argument—advanced by Busby and echoed by the concurrence—that only the analyst who physically placed the substance into the testing machine may testify. In the Court’s view, that position is inconsistent with its longstanding doctrine and not required by U.S. Supreme Court precedent.

C. Reconciling Mississippi Doctrine with Melendez-Diaz, Bullcoming, and Smith

1. Distinguishing Melendez-Diaz and Bullcoming

The majority stresses:

• Melendez-Diaz and Bullcoming bar introducing a forensic report through a witness who is:
  • neither the analyst who signed the certification,
  • nor an analyst who performed or observed the test.
• In Bullcoming, the substitute analyst had no personal, case-specific connection to the testing at issue.
• By contrast, Mississippi’s technical reviewers:
  • are deeply involved in reviewing the actual data and methodology for the specific case, and
  • co-sign the report, making their own testimonial certification.

Relying on Grim v. Fisher, the majority underscores that Bullcoming did not “clearly establish what degree of involvement with the forensic testing, beyond what was present in Bullcoming, is required of a testifying witness.” Technical reviewers like Cothern fall into that unresolved middle ground.

2. Addressing Smith v. Arizona

The majority acknowledges that Smith came after many of Mississippi’s technical-reviewer cases. It frames the central question as:

Is our practice of allowing a technical reviewer, who was actively involved in the report and had intimate knowledge of the analyses, inconsistent with Smith?

The majority’s answer is “no,” for two main reasons:

1. Differing factual posture:
   • In Smith, the testifying expert:
     • had no role in creating the underlying forensic report, and
     • served purely as an “independent expert” who reviewed another analyst’s work for litigation.
   • The Arizona courts justified his testimony on the Williams rationale—that the underlying facts were “not offered for their truth” but merely to explain the expert’s opinion.
2. Differing legal rationale:
   • Smith rejected the Williams “basis evidence” approach, holding that such underlying testimonial statements are offered for their truth.
   • Mississippi, by contrast, has never relied on Williams or on any claim that the lab’s findings were not offered for their truth.
   • Instead, Mississippi’s approach has always been rooted in the technical reviewer’s own personal involvement and “intimate knowledge,” making him or her a primary testimonial witness, not a hearsay conduit.

The majority also points out that earlier Mississippi opinions expressly declined to rest on Williams. In Galloway, for example, the Court rejected a dissenting argument urging adoption of Williams’ reasoning. And in Grim, the Court noted that Williams had “no bearing” on cases involving technical reviewers with case-specific involvement.

Thus, in the majority’s view, Smith simply:

• confirms that courts cannot pretend testimonial forensic facts are “not for their truth,” and
• does not answer (or prohibit) the distinct question of:

  When does a reviewing analyst become sufficiently involved in the process to give her own testimony based on the report she co-signed?

Because Smith does not directly address that specific role—and because Bullcoming expressly left open the case of supervisors and reviewers—the majority sees no reason to abandon its “intimate knowledge/active involvement” doctrine.

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VI. The Concurrence: A Different Reading of Smith v. Arizona

A. Disagreement Over the Facts of Cothern’s Involvement

Presiding Justice Coleman begins by disputing the majority’s characterization of Cothern’s involvement. He highlights her cross-examination:

• She admitted she never saw the alleged narcotics.
• She did not participate in receiving, weighing, observing, or testing the substance.
• Her sole role was to review the packet created by Roy after the fact.

From this, Justice Coleman concludes:

• She had no personal knowledge of:
  • the tests actually used,
  • the test results (e.g., that a secondary amine test turned blue),
  • the weight, color, and physical characteristics of the substance, or
  • the manner in which Roy handled the sample.
• Everything she testified to about those facts was derived from Roy’s out-of-court, testimonial statements in the report and notes.

In his view, this undermines the majority’s assertion that she was “actively involved” or had “intimate knowledge” of the analysis in any meaningfully independent sense.

B. How Smith Changes the Analysis

Justice Coleman argues that Smith does more than simply close the “basis evidence” loophole; it clarifies the level of personal knowledge required of the testifying expert.

Key points from his reasoning:

• The Confrontation Clause applies to testimonial hearsay—i.e., out-of-court statements offered to prove the truth of what they say and made with the formality and purpose of establishing facts for prosecution.
• In forensic cases like Melendez-Diaz, Bullcoming, and Smith, the lab reports and their factual assertions (e.g., “this is 2.84 grams of methamphetamine”) are clearly testimonial.
• Smith reiterates that:

  An expert cannot simply repackage an absent analyst’s assertions as the “basis” for his opinion and thereby avoid confrontation. If the jury must accept those underlying assertions as true for the opinion to have any value, then the assertions are being offered for their truth.

Applying this to Busby:

• Roy, the primary analyst, made testimonial statements in the report:
  • that the substance weighed 2.84 grams,
  • that it was subjected to specified tests, and
  • that those tests indicated methamphetamine.
• Cothern’s testimony depended entirely on Roy’s statements:
  • If Roy was mistaken or dishonest, Cothern’s opinion “counts for nothing.”
  • Therefore, the jury had to accept Roy’s assertions as true to credit Cothern’s conclusions.
• Because Roy did not testify and Busby had no opportunity to cross-examine her, the Confrontation Clause was violated under Melendez-Diaz, Bullcoming, and Smith.

Crucially, Justice Coleman insists that simply labeling a witness as “technical reviewer” does not answer the constitutional question. What matters is:

Whether the testifying witness has personal knowledge of the testimonial facts being conveyed to the jury.

On that measure, he finds Cothern indistinguishable from the independent expert in Smith.

C. Harmless Error

Despite finding a Confrontation Clause violation, the concurrence agrees that reversal is not required because:

• The error is subject to harmless-error analysis (not structural error).
• Here, other evidence overwhelmingly established that the substance was methamphetamine:
  • Officer Rawson, Agent Torrey, and CI Jessica Satcher all testified (without objection) that the substance was methamphetamine.
  • The jury viewed video of the controlled buy and photographs of the substance.
• Defense counsel did not effectively challenge or undermine Cothern’s testimony on cross-examination.

Given this, Justice Coleman concludes that any Confrontation Clause error was harmless beyond a reasonable doubt, and he concurs in the judgment affirming Busby’s conviction.

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VII. Impact and Significance

A. For Mississippi Evidence and Confrontation Practice

The majority’s decision in Busby is a strong reaffirmation that, in Mississippi:

• A technical reviewer who:
  • reviews the specific case file and data,
  • ensures the testing conforms to protocol,
  • forms an independent opinion, and
  • co-signs the forensic report,
  may testify to the forensic conclusions and sponsor the report under the Confrontation Clause.
• The State is not constitutionally required to produce the analyst who physically performed the tests, so long as the technical reviewer meets the “intimate knowledge/active involvement” criteria.

For prosecutors and forensic labs, this:

• preserves operational flexibility,
• avoids the necessity of calling every bench analyst in every drug case, and
• relies on the lab’s two-step process (analysis plus review) as sufficient personal involvement for confrontation purposes.

For defense counsel, Busby underscores the importance of:

• Developing a detailed record about the technical reviewer’s actual role:
  • Did the reviewer ever see the evidence?
  • Did the reviewer re-run any tests or replicate any measurements?
  • How deeply did the reviewer engage with the raw data?
• Arguing that the reviewer is, in fact, more like a surrogate expert than a genuinely involved analyst, especially after Smith.

B. Potential Tension with Federal Confrontation Jurisprudence

While the majority views its approach as harmonious with U.S. Supreme Court precedent, the concurrence’s reading of Smith captures a growing national concern:

• Many courts and commentators have questioned whether “reviewing analysts” who never observed the test can satisfy the Confrontation Clause.
• Smith suggests a stricter requirement for personal knowledge of the testimonial facts being conveyed.

Busby therefore keeps Mississippi on one side of an emerging divide:

• Mississippi’s side: A sufficiently involved technical reviewer can serve as the Confrontation witness, even without seeing the physical evidence, if they:
  • review the data in detail,
  • verify methodology, and
  • adopt the conclusion as their own in a co-signed report.
• The stricter view (suggested by Smith and embraced by the concurrence): The Confrontation Clause demands testimony from the analyst who actually:
  • observed and tested the sample, or
  • at least observed the testing, so as to have personal knowledge of the crucial facts about the sample and its analysis.

Whether the U.S. Supreme Court will eventually address the supervisor/technical reviewer scenario explicitly—something it has so far declined to do—is an open question. Busby’s majority opinion is clearly written with that eventuality in mind, positioning Mississippi’s doctrine as consistent with the open questions left by Bullcoming and untouched by Smith.

C. Harmless Error as a Safety Valve

The concurrence’s reliance on harmless error also highlights an important practical point: even if a reviewing-analyst practice is later deemed unconstitutional under a stricter federal standard, many convictions may survive on harmless-error grounds where:

• There is strong non-forensic evidence of guilt (e.g., controlled-buy video, admissions, officer testimony), and
• The forensic issue relates only to the identity of a drug that is otherwise not seriously in dispute.

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VIII. Simplifying the Key Legal Concepts

A. The Confrontation Clause

The Sixth Amendment provides that:

“In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.”

In practice, this means:

• If the prosecution wants to use a testimonial out-of-court statement (e.g., a sworn lab report prepared for trial),
• the defendant has a constitutional right to:
  • have the declarant (the person who made the statement) appear at trial, and
  • cross-examine that person,
• unless the declarant is unavailable and the defendant previously had an opportunity for cross-examination.

B. Testimonial Hearsay

A statement is:

• Hearsay if it is:
  • an out-of-court statement,
  • offered to prove the truth of what it says.
• Testimonial if it is:
  • a formal or solemn statement,
  • made with the primary purpose of being used as evidence in a criminal prosecution (e.g., a forensic lab report prepared for law enforcement).

The Confrontation Clause only applies to testimonial hearsay. Non-testimonial statements or non-hearsay uses (for some non-truth purpose) do not trigger Confrontation rights.

C. Technical Reviewer vs. Surrogate Expert

• Technical reviewer (as understood by Mississippi’s majority):
  • A forensic lab scientist who:
    • reviews the case-specific data and tests,
    • checks protocol and accuracy,
    • forms an independent conclusion, and
    • co-signs the report.
  • Considered to have a personal, albeit limited, connection to the test and its results.
• Surrogate expert (as in Bullcoming or Smith):
  • An analyst or expert who:
    • had no role in performing or observing the test, and
    • did not sign the report or certification.
  • Simply reviews the report later and testifies about what the absent analyst did or found.
  • Cannot serve as a substitute for the absent witness under the Confrontation Clause.

D. Harmless Error

Even when a constitutional violation occurs, a conviction is not automatically reversed. Courts ask:

Was the error harmless beyond a reasonable doubt, given the other evidence?

If the remaining evidence of guilt is overwhelming and the improperly admitted evidence is merely cumulative, the conviction may stand despite the error.

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IX. Conclusion: Key Takeaways

• Reaffirmation of Mississippi Doctrine: The Mississippi Supreme Court firmly reiterates that a technical reviewer with “intimate knowledge” and “active involvement” in a forensic analysis may testify and sponsor a lab report without violating the Confrontation Clause, even after Smith v. Arizona.
• Smith’s Limited Reach (According to the Majority): The Court reads Smith as targeting the Williams “basis evidence” fiction and surrogate experts with no involvement in the testing, not technical reviewers who co-sign reports after case-specific review.
• Deep Internal Disagreement: The concurrence in result only views Smith as having broader implications, effectively rendering much of Mississippi’s technical-reviewer practice constitutionally suspect unless the reviewer has genuine personal knowledge of the substance and its testing.
• Practical Effect: For now, Mississippi trial courts and prosecutors can continue relying on technical reviewers as Confrontation witnesses. Defense counsel, however, have a roadmap for mounting challenges, particularly in light of Smith and Justice Coleman’s reasoning.
• Future Litigation Potential: If future cases present clearer facts of minimal reviewer involvement, or if federal courts adopt the concurrence’s reading of Smith, Mississippi’s doctrine may face renewed constitutional scrutiny.

In sum, Busby v. State is less a doctrinal innovation than a defensive consolidation of Mississippi’s technical-reviewer jurisprudence in the post‑Smith landscape. It confirms the State’s commitment to an “intimate knowledge/active involvement” standard as the constitutional fulcrum for forensic testimony, while revealing a deep division on how far the Confrontation Clause truly extends into the everyday workings of modern crime laboratories.