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  • WisBar News
    May 17, 2013

    District II Court of Appeals Certifies Confrontation Clause Question on Expert Forensic Testimony

    Drunk drivingMay 17, 2013 – The District II Court of Appeals has certified a case that pits Wisconsin case law against a series of recent – and controversial – U.S. Supreme Court decisions on the Confrontation Clause.

    In State v. Michael R. Griep, 2009AP 3073 (May 15, 2013), the court of appeals posed the following questions for the Wisconsin Supreme Court:

    “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?”

    Factual Background 

    The case began in the Winnebago County Circuit Court as a garden-variety charge of OWI 3rd in August 2007. A traffic stop for speeding led to field-sobriety tests, a preliminary breath test, and an eventual arrest and blood draw. At the bench trial in July 2009, the state did not present the testimony of the analyst who conducted the tests on the blood sample. Instead, the state offered the expert testimony of the state crime lab’s section chief.

    Attorney Brian Kinstler is filling in for Legal Writer Joe Forward during his leave. Brian practices state and federal criminal defense in Milwaukee, and blogs on criminal law issues at

    Based on his review of the analyst’s reports and paperwork, the section chief gave his opinion that the analyst had followed all the proper procedures, and that in his opinion, the data showed that Griep’s blood alcohol content measured 0.152 grams of ethanol per 100 milliliters of blood – about twice the legal limit for a person with two prior OWI convictions. The section chief admitted that he did not personally observe the testing, and therefore could not say whether the blood sample has been properly sealed, whether there was anything unusual about the sample, or how much blood was in the test tube at the outset.

    Griep objected to the expert testimony, relying on Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), in which the U.S. Supreme Court held that forensic testing of evidence which incriminates a defendant is “testimonial” in nature, and therefore subject to cross-examination. The state, relying on Wisconsin law that preceded Melendez-Diaz, argued that there was no Confrontation Clause violation where an expert offers an independent opinion based on data obtained from another person. The trial court agreed, and Griep was convicted.

    Court of Appeals Delays Decision Twice to Follow SCOTUS’ Lead

    Griep’s appeal was already being considered when the court of appeals learned that the U.S. Supreme Court would be considering Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011), which presented a nearly identical question. Bullcoming held that that when the prosecution wishes to introduce a certified forensic report, it is a violation of the Confrontation Clause to present the testimony of a supervisor or other “surrogate” witness in place of the actual author of the report.

    Shortly after the release of the Bullcoming decision, the court of appeals again held the case in abeyance, this time to await the U.S. Supreme Court’s ruling in Williams v. Illinois, 132 S. Ct. 2221 (2012). Williams addressed an issue left unanswered by Bullcoming – whether the prosecution could present “expert” testimony based on DNA tests that were not admitted into evidence, and which were performed by an unrelated laboratory. However, Williams was a deeply fractured plurality opinion, with four justices agreeing that the DNA evidence in the case was not “testimonial” under the circumstances presented, four dissenting justices disagreeing strenuously, and Justice Thomas rejecting the majority’s rationale but concurring in the result.

    Because of this unusual clash of opinions at the federal level, the task for the Wisconsin Supreme Court seems more difficult than usual. As the court of appeals wrote in its certification:

    “In short, this case requires resolution of alternate interpretations of what the law is going to be in Wisconsin regarding confrontation clause challenges as they apply to Wisconsin lab test results where a surrogate is the expert that testifies. 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.”

    Additionally, the certification noted that the Wisconsin Supreme Court has granted review of State v. Deadwiller, 2012 WI App 89 (July 10, 2012), a DNA testing case decided on the basis of Williams, suggesting the possibility that Deadwiller and Griep may be consolidated or issued as companion cases.

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