Heine was charged with reckless homicide for supplying heroin to a young man who died after using the drug. (¶1). Tranchida, the pathologist who conducted the autopsy, concluded the victim died of a heroin overdose based both on his findings during the autopsy and on a toxicology report, which was prepared by an outside lab. (¶¶5-7). The toxicology report, which contained results generated by the work of no less than 14 analysts at the outside lab, was admitted into evidence based on the testimony of just three analysts: The analyst who reviewed the urine test data; the analyst who reviewed the blood test data; and the analyst who certified the final report. (¶¶3-4).
Heine objected to the toxicology report’s admission on Confrontation Clause grounds. Citing Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), and Bullcomimg v. New Mexico, 564 U.S. ___, ___, 131 S. Ct. 2705 (2011), he argued he was unable to cross-examine the analysts who did the actual lab work that the testifying analysts in turn used to generate the report. The court of appeals holds that if there was any error in admitting the report, the error was harmless:
¶14 …. Assuming without deciding that receipt of the toxicology report into evidence was error under both Bullcomimg and Melendez-Diaz, and that [when] the trial court received the report into evidence in order to explain a foundation for Dr. Tranchida’s testimony, it did not make the required finding under Rule 907.03, we agree with the State that the errors, if they were errors, were harmless beyond a reasonable doubt because under Rule 907.03, Dr. Tranchida’s testimony that he regularly relied on toxicology results in forming his final opinion as to cause of death laid the proper foundation for him to have relied on the toxicology report irrespective of whether that report was admissible into evidence or disclosed to the jury….
¶15 As seen from our extensive review of Dr. Tranchida’s testimony, he was no mere conduit for the toxicology report; rather, he fully explained why he, based on his education and experience, honed in on heroin as the cause of the victim’s death: the fresh elbow punctures, the “white frothy foam” that extended “down deep into [the victim’s] airways, his trachea and his bronchi,” that the victim’s lungs were “full of fluid,” and the victim’s inordinate retention of urine. It was perfectly reasonable and consistent with both Wis. Stat. Rule 907.03 and Heine’s right to confront his accusers, for Dr. Tranchida to take into account the toxicology report in firming up his opinion as to why the victim died. Heine was fully able to confront Dr. Tranchida and challenge his opinion and his supporting reasons. See Wis. Stat. Rule 907.05 …. Heine was not deprived of his right to confrontation, and the trial court’s receipt of the toxicology report into evidence was harmless beyond a reasonable doubt because, as we have already noted, Dr. Tranchida could have given his opinion exactly as he gave it without referring to the report. …
Why recommend for publication an opinion that comes down to assuming there was an error and finding the error harmless? Though it cites the general holdings of Melendez-Diaz and Bullcoming (¶9), the opinion engages in no real analysis of the Confrontation Clause issue. It devotes more space to expounding on how to operate under § 907.03 as amended by 2011 Wisconsin Act 2 (which also adopted the Daubert standard). Perhaps, then, publication is meant to alert the trial bar and bench about the new version of § 907.03.
Under § 907.03 both before and after Act 2, experts can rely on inadmissible evidence to form an opinion, and the fact that some of the basis for the opinion is inadmissible doesn’t mean the opinion itself is inadmissible. At the same time, it has always been clear that just because an expert relied on inadmissible evidence, § 907.03 doesn’t make the evidence admissible. State v. Kleser, 2010 WI 88, ¶91, 328 Wis. 2d 42, 786 N.W.2d 144; State v. Watson, 227 Wis. 2d 167, 198-99, 595 N.W.2d 403 (1999). And now, after Act 2, the rule provides that inadmissible facts or data relied on by an expert in forming an opinion “may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion or inference substantially outweighs their prejudicial effect.” (The opponent of the opinion may of course disclose the basis evidence as part of cross-examination under § 907.05, a rule that was not changed by Act 2.) Thus, assuming the toxicology report contained at least some inadmissible hearsay, the disclosure of its contents (and receipt into evidence) during direct examination would require the court to rule that the probative value of the report in assisting the jury to evaluate the expert’s opinion outweighed its prejudicial effect. The trial court apparently didn’t apply the new requirement of § 907.03 in this case (though it’s not evident that any of the parties asked it to). The opinion, then, at least serves to alert lawyers and judges to the new requirements of § 907.03.
A caution, though: The opinion in this case (¶¶10-12) segues from the Confrontation Clause to § 907.03 via the plurality opinion in Williams v. Illinois, 567 U.S. ___, 132 S. Ct. 2221 (2012). In the course of concluding that references by a state’s expert to an outside lab report didn’t violate the Confrontation Clause, the Williams plurality cited Federal Rule of Evidence 703 (the federal counterpart to § 907.03) for the proposition that the references to the outside lab report were not offered for the truth of the matter asserted in the report, but only to explain the basis for the expert’s opinion. Id. at 2239-41. But Williams is a fragmented decision, with no controlling holding. (Williams and its lack of precedential value are discussed here, here, and here.) Five justices vehemently disagreed that the disclosure of lab work done by other, non-testifying analysts was really being offered for any reason other than its truth. Id. at 2256-58 (Thomas, J., concurring in the judgment); id. at 2268-69 (Kagan, J., dissenting). As one very thorough critique of Williams concluded, “[i]n the wake of Williams, it would be both unfortunate and a violation of common sense if lower courts were simply to interpret the case as standing for the idea that expert basis evidence can be legitimately introduced for a purpose other than the truth of its contents, and hence, because the disclosure is for a nonhearsay purpose, the Confrontation Clause is not implicated.” Jennifer Mnookin and David Kaye, Confronting Science: Expert Evidence and the Confrontation Clause, 2012 Supreme Court Review 99, 141. (A version of this thorough and valuable article is available here.) Thus, even if, as the court of appeals claims (¶12), the Confrontation Clause permits an expert to testify to an opinion that is based on inadmissible material, Williams does not establish that the Confrontation Clause is satisfied just because inadmissible material on which the expert relied was disclosed to the jury as permitted by FRE 703 or, by extension, § 907.03.