S.D. was found dead in circumstances strongly suggestive of a drug overdose. The police summoned the medical examiner, who eventually performed an autopsy. The examiner sent samples from S.D.’s body to a lab in another state for toxicology testing, which revealed the presence of chemicals indicating a heroin overdose. Mattox, eventually charged with delivering the fatal heroin, claims his Sixth Amendment confrontation right was violated when the state introduced the toxicology report through the medical examiner, rather than the lab analyst who performed the testing.
As our post on the certification explained, the court of appeals had issued inconsistent decisions on the admissibility of such reports in very similar situations. (State v. Heine, 2014 WI App 32, 354 Wis. 2d 1, 844 N.W.2d 409 (admissible), and State v. VanDyke, 2015 WI App 30, 361 Wis. 2d 738, 863 N.W.2d 626 (inadmissible).) The supreme court now overrules VanDyke by declaring as a “general rule” that
When a medical examiner–unilaterally and not in conjunction with law enforcement–requests a toxicology report while performing an autopsy to determine the cause of death, admitting the toxicology report generally will not violate the Confrontation Clause when the toxicology report contains solely a numerical account of the concentration of substances within a decedent’s blood, urine, and tissue.
This is a narrowish holding. Perhaps puzzlingly so; the court doesn’t explain why it should matter that the reported data is “numerical.” But the analysis that leads up to it is hard to square with Supreme Court precedent on forensic lab reports, and also turns a blind eye to some rather obvious law-enforcement implications of autopsies and toxicology testing under the sort of fact patterns that generate these cases.
Both of these problems relate to the majority’s heavy reliance on Ohio v. Clark, 135 S. Ct. 2173 (2015), for the test as to whether evidence is “testimonial” and thus subject to the Confrontation Clause. Or rather, as the dissent points out, one of two formulations of that test found in Clark: “whether, in light of all the circumstances, viewed objectively, the primary purpose of the conversation was to creat[e] an out-of-court substitute for trial testimony.”
Right there in the quote (which the majority here alters to remove the reference to “the conversation”) we see a potential problem: Clark was not about forensic tests, but rather concerned a conversation between a small child and his teacher. In fact the Clark opinion doesn’t make any meaningful reference to the three prior SCOTUS cases that do concern forensic testing: Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011), and Williams v. Illinois, 132 S. Ct. 2221 (2012). The majority here offers some unconvincing factual distinctions between this case, Bullcoming, and Melendez-Diaz (both of which found forensic testing testimonial). (¶¶27-28). But it doesn’t really engage with those cases, instead dwelling on Clark.
The issue with this approach: One can easily see that a conversation between two people, even where one of those people is a police officer, may well have a “primary purpose” other than “to establish or prove past events potentially relevant to later criminal prosecution” (the other Clark formulation, unnoted by the majority here). Like, for example, to address an emergency or to determine whether a child needs protection. But is the same true of a test for the presence of illegal drugs in the body of a dead person?
Which brings us to the other flaw in the majority’s approach: its claim that the testing here was utterly divorced from the criminal investigation into S.D.’s death. Per the court:
Here, the medical examiner took biological samples during an autopsy of a decedent who died of unknown causes. The police did not seize the tested evidence from Mattox, who was not suspected of committing a crime when the samples were taken. The toxicology report was not requested by the police or solicited for the purpose of generating evidence against Mattox. At the time the medical examiner sent the samples for testing, there was no defendant against whom to generate evidence because there was no known crime. The medical examiner was simply looking for information to determine the cause of death and submitted the biological samples to the toxicology lab pursuant to autopsy protocols. The police were not involved in sending the samples to the lab or generating evidence against a defendant with respect to the autopsy, and the record is devoid of any suggestion that the medical examiner was working as an agent of the police in an active criminal investigation to develop evidence for use in a criminal prosecution.
First, what logical relevance is there to the fact that Mattox had not yet been identified as a defendant? “None of our cases has ever suggested that … the statement must be meant to accuse a previously identified individual; indeed, in Melendez–Diaz, we rejected a related argument that laboratory analysts are not subject to confrontation because they are not accusatory witnesses.” Williams, 132 s. Ct. at 2274 (Kagan, J., dissenting). And can it really be that there was “no known crime” where an apparently healthy young man is found dead, surrounded by paraphernalia used for injecting drugs, with needle punctures and track marks in his arm? As Mattox pointed out in his brief, injectable drugs are not typically manufactured by their end users, so someone (really several someones) had surely committed the crime of delivery causing his death. And as the dissent notes, state statute requires medical examiners and police to work together in investigating homicides.
All in all, it’s hard to see how this report was not meant to “establish or prove past events potentially relevant to later criminal prosecution.” Nevertheless, the “general rule” articulated above is the law in Wisconsin, at least for now.