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State v. Richard L. Deadwiller, 2012 WI App 89, petition for review granted, 1/14/13

On review of published decision; case activity

Confrontation — bases of expert opinion as “testimonial” hearsay

Issue (Composed by On Point)

When a State Crime Lab technician concludes there is a DNA match between defendant and assailant based in part on a report of a DNA profile prepared by an outside lab, is the outside lab report “testimonial” for Confrontation Clause purposes, thus requiring the outside lab technician who prepared the report to testify?

The details of the case and the court’s decision won’t be repeated here, as they are set out at length in our prior post. This is likely an important case, as it is another attempt to address the confrontation clause issues presented by expert testimony. 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 (Wis. Stat. § 907.03) and a defendant’s right to confrontation. While the issue in this case involves DNA analysis and a state crime lab technician, the issue could arise with other kinds of hearsay-based expert testimony in  criminal cases.

The court of appeals rejected Deadwiller’s confrontation claim, relying on Williams v. Illinois, 567 U.S. ___, 132 S. Ct. 221 (2012), which dealt with a nearly identical set of facts. But Williams lacked a majority opinion: four justices concluded outside lab reports similar to those used against Deadwiller were not testimonial; one justice agreed with that conclusion but for a completely different reason, rejecting every reason the plurality gave; and four justices dissented, saying the report was testimonial and rejecting all of the reasoning of the other five. The court of appeals resolved these fractious opinions by simple reference to the oft-cited rule that in the absence of a majority opinion, the holding of the Court may be viewed as that position taken by those justices who concurred in the judgment on the narrowest grounds. But there is authority for the argument that the justices’ splintered approaches in Williams do not logically overlap, meaning there is no “narrowest ground,” the case did not establish a binding rule or standard, and the lower courts must continue to work out the issue using all available sources. See, e.g., U.S. v. Heron, 564 F.3d 879, 884 (7th Cir. 2009). If our supreme court agrees with that approach it could come to a different conclusion than the court of appeals; either way, however, it will settle some of the issues unresolved by Williams, at least until the U.S. Supreme Court takes up the matter again.

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