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SCOW: Allowing a substitute expert to testify about forensic testing results doesn’t violate Confrontation Clause

State v. Michael R. Griep, 2015 WI 40, 4/23/15, affirming a published court of appeals decision; majority opinion by Justice Roggensack; case activity (including briefs)

Opinion testimony by a qualified expert based on data produced by an unavailable forensic lab analyst doesn’t violate a defendant’s right to confrontation if the testifying expert formed an “independent” opinion based on a review of the unavailable analyst’s data.

Griep was charged with OWI. Griep’s blood sample was tested by an analyst named Kalscheur who was unavailable to testify at trial; in her place the state called Harding, a lab supervisor, who testified that all indications were that Kalscheur followed the lab’s procedures, that the testing instrument was operating properly, and that in his “independent opinion,” based on the data in the documentation of the testing, Griep’s BAC was 0.152. (¶¶6-12). The trial court overruled Griep’s confrontation objection to the supervisor’s testimony based on State v. Williams, 2002 WI 58, 253 Wis. 2d 99, 644 N.W.2d 91, and State v. Barton, 2006 WI App 18, 289 Wis. 2d 206, 709 N.W.2d 93, which allowed a “highly qualified” expert to testify to an “independent” opinion based on work done by a non-testifying analyst. (¶13).

The issue is whether Williams and Barton remain good law after the change in Confrontation Clause analysis touched off by Crawford v. Washington, 541 U.S. 36 (2004), especially in light of Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) (Confrontation Clause violated by admission of affidavit setting out results of forensic testing of substance alleged to be cocaine) and Bullcoming v. New Mexico, 564 U.S. ___, 131 S. Ct. 2705 (2011) (extending the reasoning of Melendez-Diaz to using a surrogate analyst to admit a certificate of test results). The supreme court holds that Williams and Barton stand:

¶40  …. Williams and Barton establish that an expert witness does not violate the Confrontation Clause when his or her opinion is based in part on data created by a non-testifying analyst if the witness “was not merely a conduit.” Williams, 253 Wis. 2d 99, ¶¶20, 25; accord Barton, 289 Wis. 2d 206, ¶¶13-14. In other words, if the expert witness reviewed data created by the non-testifying analyst and formed an independent opinion, the expert’s testimony does not violate the Confrontation Clause. Williams, 253 Wis. 2d 99, ¶20; Barton, 289 Wis. 2d 206, ¶¶13-14. No federal decision addresses this type of expert testimony. In Crawford, admission of testimonial statements of an unavailable declarant violated the Confrontation Clause if the declarant was unavailable and the defendant had no prior opportunity to cross-examine. Crawford, 541 U.S. at 59. Melendez-Diaz applied Crawford to conclude that testimonial statements made in a forensic report that was admitted into evidence, but was created by a non-testifying analyst, violated the Confrontation Clause. Melendez-Diaz, 557 U.S. at 311. The facts of Bullcoming go one step further, involving both the admission of a testimonial forensic report and testimony of an expert witness who did not conduct the tests or offer an independent opinion. Bullcoming, 131 S. Ct. at 2712, 2716. However, Crawford, Melendez-Diaz, and Bullcoming do not address a situation where a non-testifying analyst’s testimonial statements do not come into evidence, i.e., where the testimonial forensic report is not admitted[,] and the expert witness who testifies at trial gives his or her independent opinion after review of laboratory data created another analyst. Stated otherwise, when a non-testifying analyst documents the original tests “with sufficient detail for another expert to understand, interpret, and evaluate the results,” that expert’s testimony does not violate the Confrontation Clause. David H. Kaye, David E. Bernstein, & Jennifer L. Mnookin, The New Wigmore:  Expert Evidence, § 4.10.2, pp. 204-05 (2d ed. 2010); accord Williams, 253 Wis. 2d 99, ¶20; Barton, 289 Wis. 2d 206, ¶¶13-14. ….

Having concluded that Williams and Barton still stand, the court applies them to this case.

The court divines in Williams a two-part “a two-part framework” to analyze whether the testimony of an expert witness who relies on forensic tests conducted by a non-testifying analyst violates the Confrontation Clause violations: “Williams provides that expert testimony based in part on tests conducted by a non-testifying analyst satisfies a defendant’s right of confrontation if the expert witness: (1) reviewed the analyst’s tests, and (2) formed an independent opinion to which he testified at trial. (¶47, citing Williams, 253 Wis. 2d 99, ¶26). Harding’s testimony in this case satisfied these requirements:

  • First, the experts in Williams, 253 Wis. 2d 99, ¶¶22-23, 25, and Barton, 289 Wis. 2d 206, ¶¶14-16, supervised or reviewed the work of the non-testifying analyst. While Harding did not conduct a formal peer review of Kalscheur’s tests (that was done by a different analyst, who was apparently also unavailable to testify), Harding completed the same examination and reviewed the same data as the peer reviewer. (¶50). The review necessary to protect a defendant’s right of confrontation “need not be formal peer review[;]” instead, what is necessary is “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.” (¶51, quoting Williams, 253 Wis. 2d 99, ¶20). “Harding’s review of Kalscheur’s report, data, and notes fulfills the Williams review requirement because he reexamined the data.” (¶52).
  • Second, “Harding was qualified to present testimony on the laboratory procedures and come to an independent opinion regarding Griep’s BAC. To arrive at his conclusion, Harding relied on his review of data collected by Kalscheur, other records compiled at the laboratory, and his own expertise.” (¶55). Though Harding lacked personal knowledge of Kalscheur’s testing of Griep’s blood sample, that kind of knowledge is unnecessary when the analyst’s report, data, and notes are the factual bases of the expert witness’s opinion. Thus, like the experts in Williams and Barton, Harding’s opinion is “independent.” (Id.).

Chief Justice Abrahamson concurs, joined by Justice Bradley. She concludes Harding’s opinion wasn’t “independent” because the only basis for it was Kalscheur’s report and supporting documentation; absent some connection with the testing actually done in this case, Harding’s review of that documentation wasn’t sufficient to enable him to independently understand, interpret, and evaluate the test] results. (¶¶76-96). But in light of what the U.S. Supreme Court has said on the question presented in this case, she concludes Harding’s testimony satisfies the Confrontation Clause because: the analyst was unavailable for cross-examination, through no fault of the parties; re-testing was not possible; the analyst recorded the forensic test results at or near the time of testing in the course of a regularly conducted activity and would be unlikely to have an independent memory of the test performed; the analyst recorded the results in a way that another expert in the field could understand and interpret; and the substitute expert witness is qualified to discuss and interpret the original results and is subject to cross-examination. (¶¶97-110).

With Williams and Barton left standing, dealing with substitute expert testimony in the future will require paying close attention to all aspects of the “two-part framework” which, based on the language in ¶¶47-56 of the majority opinion, is really a four-part test: A substitute expert must be: 1) a highly qualified witness; 2) familiar with the procedures at hand; who 3) supervises or reviews the work of the testing analyst; and 4) renders her own “independent” expert opinion based on a review of data collected by the non-testifying expert, other records compiled at the laboratory, and his or her own expertise. These criteria will have to fleshed out in future cases, for as the concurrence points out, “[i]ndependence [of an expert’s opinion] is a matter of degree. Williams does not reveal the precise degree of independent judgment that must undergird an expert’s opinion for a court to characterize the opinion as independent for Confrontation Clause purposes. It is clear, however, that … a substitute expert witness must do more than merely recite or summarize the work of another [non-testifying expert].” (¶¶78-79, citing Williams, 253 Wis. 2d 99, ¶19). Pretrial motions in limine demanding an offer of proof that a substitute expert meets all the criteria may be in order in some cases; so will motions to strike the expert’s testimony if, based on an expert’s direct or cross-examination, it appears the expert doesn’t satisfy the criteria.

While the decision in this case obviously applies to the testimony in OWI cases of lab analysts, peer reviewers, and supervisors from the state hygiene lab, the decision applies with equal force to analysts doing DNA and other forensic testing at the state crime lab. But it is not clear how the decision applies to some other situations likely to arise—for instance, in a Len Bias prosecution where the medical examiner gives an opinion about the cause of death based in part on toxicology test results generated by an expert from the crime lab. See State v. Heine, 2014 WI App 32, 354 Wis. 2d 1, 844 N.W.2d 409; State v. Van Dyke, 2014AP481-CR (Wis. Ct. App. Mar. 3, 2015) (unpublished). Williams almost certainly won’t apply in this kind of case, as the ME isn’t likely to be qualified to do toxicology testing. So once again: In any case where expert testimony is being offered, pay close attention to the test for substitute expert testimony and consider whether any aspect of that expert’s testimony can be challenged as a violation of the Confrontation Clause.

As the majority and concurrence both note, the U.S. Supreme Court hasn’t decided head-on the question of how Crawford applies to expert testimony, and the Court’s last attempt to do so resulted in the fractured opinion in Williams v. Illinois, 132 S. Ct. 2221 (2012). The majority opinion in this case reaffirms its conclusion from State v. Deadwiller, 2013 WI 75, 350 Wis. 2d 138, 834 N.W.2d 362, that because there was no common-ground rationale between the plurality and concurrence in Williams v. Illinois, that case is binding only in its specific result and can only be applied to cases with “substantially identical” facts. (There’s more on Williams v. Illinois here and on Deadwiller here.) Griep is not in a position “substantially identical” to the defendant in Williams v. Illinois, so that case doesn’t apply here and adds nothing to the analysis. (¶¶34-42).

A final point: While the Supreme Court hasn’t answered the precise question posed here, the majority’s explanation for why Melendez-Diaz and Bullcoming don’t undermine Williams and Barton leaves a lot to be desired. The majority never acknowledges that Williams follows pre-Crawford law, under which an unavailable witness’s statement against a criminal defendant was admissible if the statement bore “adequate indicia of reliability” because it was within a “firmly rooted hearsay exception” or bore “particularized guarantees of trustworthiness.” Ohio v. Roberts, 448 U.S. 56, 66 (1980). Thus, Williams found no Confrontation Clause violation in allowing testimony from a highly qualified peer reviewer or supervisor—whose job it was to “make sure that conclusions written in a report are correct,” 253 Wis. 2d 99, ¶22—because that was sufficient to assure the reliability and trustworthiness of the evidence. But this “reliability” approach was banished by Crawford, so naturally we should ask why Williams’s reasoning is still valid.

The majority doesn’t offer much of an answer. We get a summary of Barton and its holding that Crawford doesn’t undermine Williams. (¶¶26-28). But Barton made only passing reference to Crawford’s fundamental concept of “testimonial” evidence and utterly failed to apply the concept. Further, it was decided before Melendez-Diaz and Bullcoming, and the basic thrust of those cases is that an opportunity to cross-examine a substitute expert is not enough because forensic analysis is neither fool-proof nor immune from manipulation; thus, the ability to test the “honesty, proficiency, and methodology” of the analyst who actually produced the evidence being relied on is critical to the defendant’s right to confrontation. Melendez-Diaz, 557 U.S. at 317-21. Cf. Bullcoming, 131 S. Ct. at 2716 (“the [Confrontation] Clause does not tolerate dispensing with confrontation simply because the court believes that questioning one witness about another’s testimonial statements provides a fair enough opportunity for cross-examination.”).

The majority opinion says virtually nothing about this part of the reasoning in Melendez-Diaz and Bullcoming, and instead dodges their holdings by saying they did not directly address the situation presented by cases like Griep’s, where no document prepared by the non-testifying expert is introduced into evidence. (¶¶29-33, 40), That’s a superficial difference. In cases like Griep’s the substance—if not the paperwork—of the non-testifying expert’s analysis is still presented to the fact-finder through the testimony of the substitute expert’s opinion, and it is presented, implicitly or explicitly, as honest, proficient, and done according to protocol—otherwise the substitute expert’s opinion would lack both foundation and credibility. Thus, the substitute expert approach in Williams doesn’t provide what Melendez-Diaz and Bullcoming said is critical to confrontation—the ability to question the analyst who did the work. But until the U.S. Supreme Court takes up this question again, and either affirms or overrules the kind of substitute expert rule adopted here, Wisconsin practitioners will simply have to insist the rule be strictly followed.

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