Does it violate a defendant’s rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution for the State to introduce at trial a toxicology report identifying certain drugs in a deceased victim’s system and/or testimony of a medical examiner basing his/her cause-of-death opinion in part on the information set forth in such a report, if the author of the report does not testify and is not otherwise made available for examination by the defendant?
Ever since the Supreme Court reworked its Confrontation Clause jurisprudence in Crawford v. Washington, 541 U.S. 36 (2004), the high Court and others have been struggling to work out the Clause’s application to reports created by non-testifying experts. In Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) the Court found the Clause violated by an affidavit giving the results of forensic testing of purported cocaine, and in Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011), likewise rejected the use of a lab result when the state did not call the scientist who had performed the test, but instead another scientist who was familiar with testing procedures. But in Williams v. Illinois, 132 S. Ct. 2221 (2012), the Court, while permitting a state expert to testify that an outside lab’s report tied a DNA profile matching the defendant to the crime scene, failed to produce a majority rationale for doing so.
The court of appeals, searching, in the words of Professor Blinka, for the “correct path among the cryptic trail markings and side routes” post-Crawford, now throws up its hands and concludes that it has been walking in circles. This certification presents a set of facts, and a question, that’s become familiar to the court: in a reckless homicide prosecution for delivering heroin allegedly causing the death of its user, the state calls the medical examiner who autopsied the decedent but not the lab analyst who performed the chemical tests claimed to indicate the drug’s presence. (pp. 2-6). Does the opportunity to cross-examine the medical examiner–who lacks any expertise in performing drug tests and has no direct knowledge of the lab’s raw data or testing procedures–satisfy the Clause despite the inability to cross-examine the person who actually performed the test?
The problem, as the court sees it, is that these facts and this question have now generated two published decisions difficult to reconcile with each other or with binding state and federal authority:
Certification of this case stems from significant tension between our recent decisions in State v. Heine, 2014 WI App 32, 354 Wis. 2d 1, 844 N.W.2d 409, and State v. VanDyke, 2015 WI App 30, 361 Wis. 2d 738, 863 N.W.2d 626—cases that bear substantial similarities to the present case—and decisions of the United States Supreme Court and our state supreme court. Unfortunately, neither Heine nor VanDyke was appealed to the supreme court. Adding yet a third court of appeals decision on facts similar to Heine and VanDyke would do little to clarify the law regarding the admission of toxicology reports and related testimony; however, a supreme court decision could lay this issue to rest for the bench and bar.
As the court goes on to detail, Heine and VanDyke presented very similar facts yet reached opposite results, with Heine admitting the reports and testimony and VanDyke excluding them. (pp. 8-14). And the court’s not buying its own attempt, in VanDyke, to justify the discrepancy on the theory that the report in Heine was less significant to the examiner’s conclusion:
[W]e do not see how the extent to which the examiner relied upon the report for his/her ultimate cause-of-death opinion controls whether a defendant has a Confrontation Clause right to cross-examine the author of the report, or an appropriate person from the laboratory, regarding the findings in the report. Significantly, such a position would appear to be at odds with the United States Supreme Court’s holdings in Melendez-Diaz and Bullcoming, and our supreme court’s recent holding in State v. Griep, 2015 WI 40, 361 Wis. 2d 657, 863 N.W.2d 567, cert. denied, Griep v. Wisconsin, No. 15-126, 2016 WL 100365 (U.S. Jan. 11, 2016).
Griep involved the testimony of a section chief from the Wisconsin State Laboratory, who reviewed not only the report but the raw data of the analyst who had tested the defendant’s blood alcohol, and who knew about the relevant procedures and testing protocols. As the certification explains, the holding of Griep did not really address the issue in Heine, VanDyke, and this case, since unlike the lab section chief, a medical examiner untrained in drug testing cannot “do his own analysis and reach his own conclusions,” but must necessarily be relying on the analysis and conclusions of the absent lab analyst. (p. 19). The court of appeals, having previously approved the admission of such findings, more or less cops to its mistake (though unfortunately too late for Mr. Heine):
Does a defendant not have a Confrontation Clause right to test those findings by cross examining either the author of those findings or an appropriate person from the laboratory? Does a defendant have a Confrontation Clause right to cross-examine an analyst who provides facts and data introduced at trial and relied upon by a medical examiner for a cause of death opinion only if the examiner relies on the facts and data to a significant extent (VanDyke) but not if an examiner relies on the facts and data to a more modest extent (Heine)? Does a defendant not have a Confrontation Clause right to test the reliability of the facts and data a medical examiner is relying upon, at least in part, as being true and accurate?
(p. 21-22) (citations omitted).