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  • WisBar News
    February 22, 2016

    Supreme Court May Consider Confrontation Clause Issue of Surrogate Testimony

    Joe Forward

    Feb. 22, 2016 – Still grappling with surrogate expert testimony, the state appeals court is asking the Wisconsin Supreme Court to decide whether a toxicology report and supporting testimony can be admitted if the toxicology report’s author doesn’t testify.

    Rozerick Mattox, convicted for delivering heroin to someone who died after injecting it (first-degree reckless homicide), argues that he had a constitutional right to confront the witnesses against him (Confrontation Clause), in this case the actual author of a toxicology report that identified fatal levels of heroin in the overdose victim’s blood.

    During his trial, the Waukesha County medical examiner who performed the autopsy testified about the factors relied upon to conclude the victim died from a heroin overdose. The examiner relied on the examination of the body and the toxicology report.

    But the toxicology report was generated by a lab at St. Louis University, and nobody involved in generating that report appeared to testify. Thus, Mattox said it would violate his Confrontation Clause right to admit the report and the expert testimony relying on it.

    The trial court allowed the testimony. Mattox was convicted, and he appealed.

    Recently, the Wisconsin Appeals Court certified the case for state supreme court review, noting “significant tensions” between two recent appeals court decisions that were not appealed and decisions of the U.S. Supreme and Wisconsin Supreme courts.

    “Adding yet a third court of appeals decision on facts similar to Heine and VanDyke would do little to clarify the law regarding the admission of toxicology reports and related testimony; however, a supreme court decision could lay this issue to rest for the bench and bar,” the appeals court wrote in its certification.

    In State v. Heine, 2014 WI App 32, 354 Wis. 2d 1, 844 N.W.2d 409, and State v. VanDyke, 2015 WI App 30, 361 Wis. 2d 738, 863 N.W.2d 626, a medical examiner also testified regarding an autopsy and toxicology report not generated by the examiner.

    In Heine, the examiner used the toxicology report to confirm what he already concluded based on the autopsy. But in VanDyke, the examiner could not make a determination on cause-of-death without the toxicology report. Thus, the outcomes were different.

    On appeal in Heine, the court affirmed the conviction, finding no constitutional problem. In VanDyke, the appeals court ruled on Confrontation Clause grounds that defendant’s counsel was ineffective for failing to challenge the introduction of the toxicology report.

    In the Mattox certification, the appeals court questioned whether a defendant’s Confrontation Clause right to cross-examine the author of the toxicology report, or an appropriate person from the laboratory, is controlled by the “extent to which the examiner relied upon the report for his/her ultimate cause-of-death opinion.”

    The Mattox certification noted that in Melendez-Diaz v. Massachusetts (2009), the U.S. Supreme Court ruled that the defendant had the right to confront the authors of a drug identification report, which was entered into evidence in the form of an affidavit, rejecting an argument that those lab analysts were not “accusatory” witnesses.

    And in Bullcoming v. New Mexico (2011), the U.S. Supreme Court rejected the state’s attempt to introduce a forensic laboratory report on blood-alcohol concentration through the in-court testimony of an analyst who did not participate in the testing process.

    Those cases seemed to hinge on whether an out-of-court statement (report) is “testimonial” in nature, thus allowing the defendant to confront the report maker.

    Then in 2015, the Wisconsin Supreme Court ruled, in State v. Griep, 2015 WI 40, that an expert witness could testify about a driver’s blood alcohol level based on lab tests performed by an analyst who was unavailable to testify.

    But the Mattox certification notes that Griep was a different case. In Mattox, the examiner who testified relied on the final lab results and did not testify about raw data or procedures of the laboratory that tested the samples, which was the case in Griep.

    “Because of the significant issues identified herein, and the fact they will recur in many future cases, we respectfully urge the Wisconsin Supreme Court to accept certification of this appeal, so as to provide a clear, definitive and controlling ruling for our state with regard to the above issues,” the appeals court wrote in its certification.

    The Wisconsin Supreme Court will accept review of the case if a majority of the seven justices vote to hear it.

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