Is an OWI defendant’s right to confront the witnesses against him violated when a supervisor of the state crime lab testifies that a lab report prepared and certified by another, but unavailable, lab analyst establishes the defendant’s illegal blood alcohol concentration? Does it make a difference that the lab supervisor said it was “his” opinion even though he did not perform any of the testing himself and simply noted that the unavailable analyst followed the proper protocol?
As the court notes in the certification, this case presents a corollary to the question presented in State v. Deadwiller, 2012 WI App 89, 343 Wis. 2d 703, 820 N.W.2d 149, now under review in the supreme court. As we noted in discussing that case, the crux of the matter is the conflict between the rule of evidence allowing experts to testify to an opinion formed using otherwise inadmissible evidence, § 907.03, and a defendant’s right to confrontation.
The answer to the question posed in this certification is uncertain despite three U.S. Supreme Court decisions since 2009 dealing with confrontation of forensic evidence. Griep’s case was tried shortly after the first of the three cases, Melendez-Diaz v. Massachusetts, 557 U.S. 305, 307-09 (2009), which held that the confrontation clause was violated by the admission of a certified report of lab testing results at trial without any expert testimony. The trial court overruled Griep’s objection to the lab supervisor’s testimony on the grounds that the lab report was not admitted into evidence; rather, as permitted by State v. Barton, 2006 WI App 18, 289 Wis. 2d 206, 709 N.W.2d 93, the state presented a witness who testified to his independent opinion and could be cross-examined, even though he based his opinion entirely on the work of another expert who didn’t testify.
While Griep’s appeal was pending, the next two cases were decided: Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011), which found a confrontation violation in the admission of a certified report through the testimony of an expert who didn’t do any of the testing or offer an independent opinion, but served only as a conduit for the report; and Williams v. Illinois, 132 S. Ct. 2221 (2012), a case without a majority opinion, though with five Justices concluding there was no confrontation violation where a lab analyst testified to an opinion formed in reliance on a DNA report prepared by a different lab but not itself admitted into evidence. (The court of appeals applied the narrow judgment of Williams in Deadwiller, the facts of which were quite similar to those in Williams.)
As the certification notes, these cases establish no clear rule, and clarity is needed:
Do these cases mean that the testing analyst produced a report for the truth of the matter asserted such that the confrontation clause is violated if he or she is not available to testify? One can read Bullcoming to say so. Or is the testing analyst’s report just that—a report—something that is not, by itself, made for the truth of the matter asserted but rather part of the information that a testifying expert uses to form his or her own opinion, which opinion is subject to cross-examination? One can read Williams to mean that.
In light of the Wisconsin Supreme Court’s having undertaken review of Deadwiller, we ask the court to also review this corollary case. The trial courts, and this court, would benefit from the direction of our supreme court in answering the questions posed in the preceding paragraph. The facts here are markedly different than in the DNA cases but are similar to many, many OWI cases that fill the dockets in this state….
If you’re interested in an thorough, penetrating discussion of this issue, take a look at Confronting Science: Expert Evidence and the Confrontation Clause, by two forensic evidence experts, Jennifer Mnookin and David Kaye (forthcoming in the 2012 Supreme Court Review).