Issue (from certification):
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?
As noted in our lengthy analysis of the court of appeals certification of this issue (a must read), this case 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?
Our hope is that SCOW will figure out a fair way to reconcile a slew of post-Crawford decisions addressing how the Confrontation Clause applies to reports created by non-testifying experts. Again, see our post on the certification for the full analysis.