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Confrontation – Expert Testimony: Crime Lab Analyst, Opinion Based in Part on Another’s Testing

State v. David Barton, 2006 WI App 18
For Barton: Leonard D. Kachinsky

Issue: Whether the expert opinion of a crime lab analyst, presenting his own conclusions about tests performed by a non-testifying analyst, violated confrontation.

Holding: 

¶16 Like the unit leader’s testimony in Williams, Olson’s testimony was properly admitted because he was a qualified unit leader presenting his individual, expert opinion.  Olson not only examined the results of Lyle’s tests, but he also performed a peer review of Lyle’s tests.  He formed his opinion based on his own expertise and his own analysis of the scientific testing.  He then presented his conclusions to the jury, and he was available to Barton for cross-examination.  Thus, Olson’s testimony satisfied Barton’s confrontation right and is admissible under the supreme court’s decision in Williams.¶17 Barton contends that Crawford v. Washington, 541 U.S. 36 (2004), overrules Williams “to the extent Williams is interpreted as permitting the State to rely upon inadmissible hearsay as the basis for Olson’s testimony in this case.”  We disagree.  …

¶20 The holding in Crawford does not undermine our supreme court’s decision in Williams. Williams is clear: A defendant’s confrontation right is satisfied if a qualified expert testifies as to his or her independent opinion, even if the opinion is based in part on the work of another. Williams, 253 Wis. 2d 99, ¶¶9, 11. We do not see, and Barton fails to explain, how Crawford prevents a qualified expert from testifying in place of an unavailable expert when the testifying expert presents his or her own opinion.

The reference is to the very similar State v. Luther Williams, 2002 WI 58 (“the presence and availability for cross-examination of a highly qualified witness, who is familiar with the procedures at hand, supervises or reviews the work of the testing analyst, and renders her own expert opinion is sufficient to protect a defendant’s right to confrontation, despite the fact that the expert was not the person who performed the mechanics of the original tests,” ¶20), reconsideration denied 2002 WI 118. The upshot, then, is to ratify Williams in light of Crawford. As Barton suggests ¶¶21-23, there is a developing split on the extent to which Crawford inhibits a testifying expert’s reliance on a non-testifying expert. The problem, of course, is recurrent and unlikely to go away anytime soon.  There are, for that matter, two distinct problems, broadly speaking: reliance by a testifying expert on the report of another expert (which is raised by Barton-Williams) and admissibility of a non-testifying expert’s report without any testimony at all (not raised by these cases but potentially recurrent, certainly in foreign caselaw). For more recent caselaw development, see Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011) (introduction of “a forensic laboratory report containing a testimonial certification—made for the purpose of proving a particular fact—through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification” violates confrontation).

 

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