*1 Plaintiff-Respondent, Wisconsin, State R. Michael Griep, Defendant-Appellant-Petitioner. Court
Supreme November argument Oral 2009AP3073-CR. No. April Decided WI 40 567.) (Also in 863 N.W.2d reported *3 defendant-appellant-petitioner, For the the cause argued by City, Bushnell, was Trida J. Kansas MO. by The were briefs filed Trida J. Bushnell. plaintiff-respondent, argued For the cause by attorney general, Sanders, Michael C. assistant attorney Hollen, with general. on the J.B. whom brief was Van by Findley An amicus curiae was filed brief Keith on behalf of The Network, Innocence Madison. Thomp-
An amicus curiae brief was filed S. Kelli public son, defender, Olson, state E. assis- Jefren public tant state on behalf defender, of the Office of the State Public Defender. ROGGENSACK, 1. PATIENCE DRAKE J. We appeals1
review a decision of the court that affirmed ruling the circuit court's2 that admitted an *4 1 25, Griep, App 252, v. State 2014 WI 353 Wis. 2d 845 N.W.2d 24. 2 Winnebago The Honorable J. Gritton County, Thomas of presided.
660 alcohol the blood that established witness's (BAC) Griep while he was of Michael R. concentration operating witness, Patrick Hard- vehicle. The his part opinion ing, tests con- in on forensic his based Laboratory Wisconsin State an at the ducted (Wisconsin Laboratory) Hygiene who was un- State of testimony, Griep Harding's for trial. Based on available operating while intoxi- a motor vehicle was convicted of offense). (third cated contending right Griep appealed,
¶ that his of 2. the circuit court was violated when confrontation analyst's Harding rely part on the allowed appeals affirmed, test results. The court forensic concluding Griep's not of confrontation was analyst's Harding fo- reviewed violated because an records and formed rensic test results and other Griep's approved independent BAC, as 99, 2d 644 Williams,3 58, 2002 WI 253 Wis. v. State App Barton, 18, 2006 WI 919 and State v. N.W.2d Griep, 2014 WI 206, 93. State v. Wis. 2d 709 N.W.2d App ¶¶ 252, 2d 845 N.W.2d 25, 19, 22, 353 Wis. Harding's review of conclude that 3. We including Griep's file, the forensic test trial, an who was unavailable results of independent opinion he testified did to which form Griep's right Williams, confrontation. violate not Barton, 206, 2d 26; 289 Wis. 99, appeals Accordingly, court of decision we affirm the admission of Hard- the circuit court's that affirmed testimony. ing's references to State v. subsequent refer to all We as Williams. We Wis. 2d 644 N.W.2d
2002 WI (2012), Illinois, _ U.S. _, 132 S. Ct. refer to Williams case, Illinois. as Williams v. a different
I. BACKGROUND ¶ Griep's 4. This review involves claimed viola- regarding Harding's tion of his of confrontation expert testimony part was based on results of forensic tests conducted who un- dispute. available for trial. The historic facts are not in Saturday, August ¶ approxi- 5. On 25, 2007, at mately Department a.m., 12:48 a Winneconne Police stopped Griep speeding, officer for which he planned warning to issue a However, ticket. while talking Griep, with the officer smelled the odor of Griep's glassy alcohol and observed bloodshot and eyes. response question to the officer's about consumption, Griep
alcohol
stated that he drank a
couple of beers at a local bar. When the officer asked
Griep
perform
sobriety
Griep agreed.
field
tests,
Griep's performance
sobriety
on the field
tests indi-
cated that he was intoxicated. After further discussion,
Griep
Griep agreed
admitted he had four beers.
perform preliminary
a
breath test that also indicated
Griep's
intoxication. The officer reviewed
record, which
prior
showed two
convictions for OWI. The officer
transported Griep
nearby hospital
to for a blood
request, hospital
draw. At the officer's
staff conducted
Griep's
the blood draw without
consent.4
4
warrantless,
The
nonconsensual search is not an issue in
our review. Griep has not claimed that his blood draw was
court,
unconstitutional before the circuit
appeals,
court of
or
during our review. See
McNeely,
U.S. _,
Missouri v.
133 S.
1552,
(2013),
Ct.
abrogating our decision in State v.
Bohling,
529, 547,
173 Wis. 2d
(1993);
¶ 10. Kalscheur was unavailable at the time of Harding, Instead, trial.5 the State called Patrick sec- toxicology tion chief of the section of the Wisconsin Laboratory, Harding State as an witness. testi- fied that he had reviewed Kalscheur's work and exam- produced by testing, specifi- ined the data Kalscheur's cally chromatograms, as well as other records performed. associated with the tests Kalscheur Hard- ing process said that he was familiar with the obtaining samples testing, shipping blood for ethanol laboratory, processing analysis, them to the them analysis samples. and the 5 Kalscheur was on leave at the time of trial. Harding's opinion
¶ 11. When the State asked on Griep's sample whether Kalscheur tested blood consis- tently laboratory procedures, with defense counsel ob- jected grounds. Harding on Confrontation Clause testi- fied that all indications were that Kalscheur followed laboratory procedures and that the instrument was working properly. Harding said that the machine's proper function was evident from the results of calibra- throughout tion checks run the course of the tests Griep's samples. Harding concluded that the results of particular checks, those calibration those Kalscheur immediately Griep samples, ran before and after the reliability Harding showed the of the machine's results. opined correctly running sample through *7 calibrated instrument resulted in a reliable blood alco- reading. Harding reviewing hol concluded that after all independent opin- data, the available he came to an Griep's ion that the alcohol concentration in blood was grams per 0.152 of ethanol 100 milliliters of blood. Harding laboratory procedures also testified as to irregularities sample, that if there had been with the they analyst. would have been noted on a form the None were noted. During Harding
¶ cross-examination, ac- knowledged that an could commit misdeeds, possibly Harding acknowledged without detection. also important competent that it is that the be Harding honest. testified that when he testifies about personally completed, forensic tests that he has he paperwork completed relies on the and notes he at the testing analysts time of because at the con- many duct so tests that no one can remember details particular sample reviewing about each without contemporaneously notes that were made with the tests. Griep's objection motion limine and at sought preclude Harding's testimony
trial that
were
grounded in the Confrontation Clause. He relied on
(2009);
Massachusetts,
Melendez-Diaz v.
¶ 14.
Before the court of
Supreme
decision,
issued its
the United States
Court
accepted
(N.M. 2010).
petition
Bullcoming,
in State v.
See v. New 561 U.S. (2010) certiorari). (granting appeals The court of Griep's abeyance pending held case in the outcome in Bullcoming question presented because the in that question Griep's appeal. case6 was similar to the appeals again ¶ 15. As the court of about Griep's appeal, undertake the court learned that the Supreme granted United States Court had certiorari in People case, another relevant 939 N.E.2d (Ill. 2010). Illinois, _ U.S. _, See Williams v. 131 S. (2011) certiorari). (granting ap Ct. 3090 The court of peals again Griep's once held case to await the outcome *8 in Williams v. Illinois because the decision on the "
6
[wjhether
Bullcoming
question presented
The
permits
prosecution
the Confrontation Clause
to introduce
nontestifying
testimonial
statements
of a
forensic
through
supervisor
person
the in-court
a
or
other
perform
laboratory analysis
who did not
or observe the
de
in the
a
scribed
statements." Petition for Writ of Certiorari
(2011)
Bullcoming v.
i,
Mexico, _ U.S. _,
New
131 S. Ct.
2705
(No. 09-10876),
665 question presented7 may Griep's have had an effect on appeal. May appeals 15, 2013, 16. On the court of certi- appeal 14, 2013,
fied the to us.8 On June we held the abeyance pending disposition certification in our State v. v. Deadwiller, Deadwiller. See State 350 (decided 2013). July Wis. 2d N.W.2d 362 20, 2013, On November we refused certification. The appeals opinion February court of issued 19, 2014, its good Griep, and held that Barton remained law. availability Wis. 2d The court held that "the qualified expert, testifying indepen- of a well as to his testing Griep's dent conclusion about the ethanol by report blood as evidenced from another state lab analyst, protect Griep's right was sufficient to to con- frontation." Id.
II. DISCUSSION
A. Standard of Review
Harding's testimony,
17. We review whether
particularly
testing
his reliance on
conducted
question presented
The
in Williams v. Illinois was
"[wjhether a
rule
allowing
state
of evidence
witness
testify
testing
about
the results of
performed by
DNA
non-testifying analysts, where the
opportu
defendant has no
nity
analysts,
to confront the actual
violates the Confrontation
Clause."
i,
Petition for a Writ of Certiorari at Williams v.
_
Illinois,
(No.
_,
10-8505),
U.S.
f
testimony,
part
unit leader's trial
based in
on a
authored and tests conducted
testify
who did not
trial,
violated the Confrontation
possession
Clause. Williams was on trial for
of cocaine
with intent
to deliver.
Wis. 2d
supervisor
said it was 'his'
though
even
he did not
perform any
testing
simply
himself and
noted that
proper protocol?"
unavailable
followed the
Petition for
(No.
Certification at Griep,
2009AP3073-CR),
¶ 20. held that the unit leader's We right Id., did not of confrontation. violate Williams' ¶¶ 20, 26. We stated: presence availability
[T]he and for cross-examination witness, highly qualified of a who is familiar with the procedures hand, supervises or reviews the work of testing analyst, expert opin- the and renders her own protect ion is sufficient a defendant's to con- frontation, despite expert the fact that the was not the person performed original who the mechanics of the tests. Regarding independent expert's opinion, ¶
Id., 20. opined expert opinion we that "an who forms an based part expert merely in on the an work others and who quite summarizes the work of others" are different expert in instance, because that later would be "a opinion ¶ Id., mere conduit for the of another." expert ¶ 21. concluded We that witness in highly qualified Williams was to render an closely and connected to the tests and procedures ¶¶ Id., involved the actual tests. 21-22. The witness was a unit leader at the Wisconsin Laboratory years experience, State with nine a degree chemistry graduate bachelor's with some experience analyzing courses, who had substantial presence ¶ Id., of controlled substances. 21. The witness also was familiar with the various tests and performed peer had Id., review on the tests. 22. The expert's peer comparing review involved the notes with conducting the evidence and conclusions, "making overall examination of the data sure that all [and] the notes coincide with the evidence, [the] Additionally, data coincides with conclusion." Id. merely we determined that the witness was "not opinion, conduit" for another's rather, but she testified independent opinion part as to her based in on facts gathered by Id., data someone else.9 22. We also considered whether a non-testifying analyst authored violated *11 the defendant's of confrontation when it was analyzed ¶ Id., admitted into evidence. 32. We admissibility report expert of the and the witness's testimony separate as two First, issues. Id. we held laboratory report properly that the was not admitted 908.03(6) as § a business record under Wis. Stat. (1997-98), part prepared litiga- because it was ¶ Id., report's tion. However, 49. we concluded that the ¶ Id., admission was harmless Second, error. 50. we expert testimony. reaching evaluated the witness's In report our conclusion that admission of the harm- was regarded error, less we witness's compelling as and credible evidence from which the otherwise, Stated permits expert" Williams a "substitute testify original to when "the test was documented in a thor ough way permits evaluate, substitute to assess, interpret Kaye, it." Bernstein, David H. David E. & Mnookin, Jennifer L. Wigmore: Evidence, The New Expert (2d 2010). 4.10.2, p. Furthermore, § ed. surrogate "the can meaningfully be cross-examined about the tests that were (and not), conducted questioned those that were about the legitimacy original analyst's interpre conclusions and tations." Id.
jury at issue was could have concluded substance Id,., otherwise, the witness's 52. Stated cocaine. opinion constitutional, and that conclusion was the admission of the unrelated to whether the Confrontation Clause. violated Griep's appears to addressed contention be However, out in Williams. before the rule we set proceeding apply Williams to his claimed Confron federal violation, we consider whether tation Clause including opinions subsequent issued Bullcoming Mexico, _ U.S. _, v.New S. Crawford, (2011), Illinois, _ U.S. _, Ct. 2705 and Williams (2012), S. Ct. 2221 affect our conclusions Williams. opinions
1. Relevant federal
Supreme
the United States
Court
up the Confrontation Clause in
At
took
Crawford.
attempted murder,
trial for assault and
he
Crawford's
¶ 25. discussion of testimonial state- Crawford's ments of an declarant is consistent with unavailable requirement permitted that in order to Williams be
670 independent testify an must form an expert's opinion part is based in on tests when by analyst.10 performed another See 253 requirement ¶¶ 99, 19, Wis. 2d 25. This Williams' prevents a violation of the Confrontation Crawford are admit- Clause because out-of-court statements not they replaced by evidence, rather, ted as independent opinions are but by on data collected based both expert's analysis. and on the own others Subsequent Supreme ¶ 26. to the Court's deci- appeals applied in Crawford, sion the court Wil- ¶¶ Barton, 9, Barton, 206, liams. appeals' the court of discussion focused on whether a laboratory testify unit leader at the state crime could part performed by analyst. on another based tests leader at crime The unit the state testified performed about chemical tests who was Id., unavailable at trial. 4. The witness peer analyst's tests and testi- conducted review independent expert opinion. ¶¶ Id., 4,16. fied as to his laboratory report did The State not seek to admit analyst's Id., that detailed the test results. appeals applied
¶ 27. The court of
Williams and
testimony
did
held the
not violate Barton's
¶¶
Id.,
9-13, 16,
confrontation.11
20. The court con-
present
the same issues as
The instant
case does not
as the testimonial
statements
of an unavailable
Crawford
declarant were not admitted into evidence
this case. Cf.
(2004).
Washington,
541 U.S.
Stated other
Crawford
wise,
report's
neither Kalscheur's
nor
because
evidence,
holding
was admitted into
conclusion
Crawford
is not at issue.
after
appeals
The court of
also referred to cases decided
jurisdictions,
holding similar
from other
Crawford
Barton,
the Confrontation Clause. State v.
did not violate
21-22,
(citing
2d
¶ 28. The court of also clarified the effect holding on Williams: "The Crawford Crawford supreme does not undermine our court's decision in Williams. Williams is clear: A defendant's confronta- qualified tion is satisfied if a testifies as to independent opinion, his or her even if the is part based in on the work Id., of another." ¶ In Melendez-Diaz, the United States Su- preme again up admissibility Court took of forensic reports by non-testifying laboratory analyst. created reporting At issue was whether affidavits forensic analyses "rendering testimonial, were the affiants 'wit- (N.C. Delaney, State v. 613 S.E.2d App. 2005); Ct. Thomas, People v. (Cal. Rptr. 30 Cal. 3d App. Ct. Archuleta, abrogated by People v. 2005), Rptr. 170 Cal. 3d 361 (Cal. 2014)). App. Ct. *14 right subject nesses' to the defendant's of confronta- Melendez-Diaz, Amendment." tion under the Sixth at 307. Those affidavits showed a substance 557 U.S. cocaine, connected to the defendant was and were specifically created to serve as evidence at a criminal Supreme 324. The Court held that trial. Id. at laboratory reports forensic were testimonial state- subject Clause, to the Confrontation and there- ments right fore, defendants have a to confront the author- ing analyst recognized at trial. Id. at 311. The Court that Melendez-Diaz falls within the line of Crawford appli- "This case involves little more than the cases: holding Washington in cation of our .... Crawford permit prosecu- The Sixth Amendment does not parte prove via ex affida- tion to its case out-of-court regarding holding vits." Id. at 329. Melendez-Diaz's laboratory reports the testimonial nature of does not alter in that a defendant's our conclusion Williams against to confront witnesses him is not violated testifying expert when a reviews the case file and independent though conclusion, to an even comes expert's opinion part performed on tests is based analyst.12 another See
¶¶ 19,
12Likewise, Griep's
present
contention does not
the same
issues as Melendez-Diaz because the
non-testifying
analyst's
report
written
and other
records were not admitted
into
(7th
Turner,
evidence. See United States v.
709 F.3d
2013)
(concluding
involving testimony
that a case
based
Cir.
part
analyst's
present
tests did not
on another
forensic
Melendez-Diaz
Therefore,
laboratory
problem).
whether
in a
specifically
here was created
to serve as evidence
proceeding,
prove
criminal
introduced to
the truth of the
or
review. See Melendez-
asserted,
matter
is not relevant
to our
(2009)
Massachusetts,
Diaz v.
(introducing
557 U.S.
cocaine).
drug analysis report
prove
substance was
Bullcoming,
In its 2011 decision in
Supreme
United States
Court next revisited the Con-
applicability
frontation Clause's
to forensic
reports.
Bullcoming's
charges
driving
At
trial on
while intoxicated, the trial court admitted a forensic
laboratory report certifying
Bullcoming's
BAC
driving
was above the BAC threshold for
under the
Bullcoming,
influence.
Our answer inis line with controlling precedent: As rule, if an out-of-court statement is testimonial nature, may it not against be introduced the accused at trial unless the witness who made the statement is unavailable and the prior accused has had a opportu- nity to confront that witness.
Id. Supreme
¶ 31. The Court's discussion in Bull- coming differs from the section of our Williams deci- Griep's sion that is relevant to contention of a Confron- Bullcoming, tation prosecution Clause violation. In report admitted the forensic as a business record in at 2712. Clause. Id. of the Confrontation violation the forensic cannot concludes that also Williams Williams, properly as a business record. be admitted However, in 2d 253 Wis. testing analyst, was the work of the reviewed
witness procedures rendered an hand, with the familiar independent opinion. ¶¶ Id., 21-22. The independent opinion Bullcoming of an ex- is not (stating Bullcoming, pert. Ct. at 131 S. See test results and did not review the the witness that prosecution an the witness had never asserted BAC). concerning opinion independent the defendant's reviews data Therefore, witness when yielded or her own and reaches his tests independent data and his or her based on that Bullcoming pro- knowledge, applies and Williams own guidance. vides no Sotomayor emphasized the limited 32. Justice Bullcoming Id. at 2722 in her concurrence.
reach of
separately
concurring).
(Sotomayor,
She wrote
J.,
laboratory report
highlight
was
view that
her
purpose
primary
eviden-
because its
testimonial
tiary,
emphasize
limited
wrote "to
but she also
opinion."
at 2719. Justice
Id.
of the Court's
reach
Bullcoming
distinguished
*16
Sotomayor
from other cases
supervisor, reviewer, or
a
the trial witness "is
where
personal,
limited, connec-
with a
albeit
someone else
She also
Id. at 2722.
the scientific test at issue."
tion to
distinguished
witness was
where the
cases
opinion
independent
gave
about
an
asked for
underlying
reports
not admitted
that were
testimonial
Bullcoming, Id. She noted that
into evidence.
acknowledged
prosecution
offered no
that the witness
Sotomayor
opinion
con-
BAC. Justice
about
question if asked
face a different
cluded: "We would
constitutionality
allowing
to determine the
an ex-
pert witness to discuss others' testimonial statements
if the testimonial statements were not themselves
Sotomayor's
as evidence."
Justice
admitted
Id.
concur-
Bullcoming
that
rence reinforces our conclusion
does
guide
indepen-
not
our decision
the issue
when
is
opinion
dent
of an
witness who has reviewed
admissibility
results,
the forensic test
rather than the
underlying
report.
of an
forensic
Supreme
provided guidance
¶
The
Court
on
when out-of-court testimonial
are
statements
admis-
sible, when
are
testimonial,
statements
under
reports
what circumstances testimonial
are
Melendez-Diaz,
admissible Crawford,
and Bullcom-
ing.
Melendez-Diaz,
Crawford,
59;
430 U.S.
193
138,
350
2dWis.
Voight,
¶
¶
30; see also Vincent v.
93,
n.18,
2000 WI
46
Lounge Mgmt.,
588,
236
2d
388;
Wis.
614 N.W.2d
Ltd.
Trenton,
13,
v. Town
219
2d
21-22,
Wis.
580 N.W.2d
of
(1998).
fragmented [Supreme]
156
"When a
Court
single
explaining
decides a case and no
rationale
the
enjoys
holding
result
the
Justices,
assent of five
of
may
position
the Court
be viewed
that
as
taken
judgments
those Members who concurred in the
on the
(internal
grounds." Marks,
narrowest
rowest (Thomas, concurring), (Breyer, J., J., 2244-45 concurring); 32. Five Deadwiller, 2d 350 Wis. Supreme justices Court concluded States the United circumstances, that, in certain v. Illinois in Williams expert wit does not bar Clause the Confrontation basing on a forensic her his or from ness *19 by laboratory report prepared when another opportunity given was never defendant the report prepared or the who the cross-examine testing. Illinois, 132 v. Williams the forensic conducted major gathered opinion a However, no Ct. at 2228. S. (Breyer, J., concur ity 2252 the Court. Id. of justices (Thomas, concurring). ring), The four J., 2261 not plurality did that the concluded the report Clause because the Confrontation violate prove asserted the matter the truth of used to was not targeted purpose primary accuse a was not to and its justice a fifth 2243. While a crime. Id. at individual disposition agreed case, he concluded with it "lacked because non-testimonial was that solemnity' 'formality requisite considered to be "15 (Thomas, concurring). J., 2255 Id. at 'testimonial.' only when the narrow- works approach noting that the Marks and when no denominator a common represents opinion est binding only as to its exists, decision is fragmented a overlap result). specific also v. Illinois in Williams Thomas' concurrence Justice analysis" asserted "flawed rejected plurality's explicitly introduction reason for plausible was no "there truth." their to establish other than statements Cellmark's (Thomas, J., concur Illinois, S. Ct. at 2255-56 Williams ring). justices rejected plurality's primary
Four purpose both the solemnity-based
test and Justice Thomas'
test
expert testimony
and instead concluded that the
"functionally
'surrogate testimony'"
identical to the
in
Bullcoming
Bullcoming
and that
controlled the out-
(Kagan,
dissenting).
come.16 Id. at 2267
J.,
As no
opinion overlaps with another, the Marks narrowest
grounds
apply
rule does not
to Williams v. Illinois.
Marks,
193; Deadwiller,
430 U.S. at
Wis. 2d
King,
¶ 30;
only "specific as Deadwiller, to its result." 234). (citing Corp., Berwind 307 F.3d at A plurality opinion grounds without a narrowest concur- requires specific parties rence a result when the are substantially position. Berwind, identical 307 F.3d at Griep substantially position is not in a identical parties in Williams v. Illinois. The difference be- Griep's tween circumstances and those Williams v. Illinois is illustrated our recent in Dead- willer.
¶ 39. Deadwiller is our sole Confrontation Clause case since Williams v. Deadwiller, Illinois. In *20 suspect the defendant was identified aas in a sexual through profile assault a DNA derived at an out-of- 16 Marks, Under positions justices the of the who dissented judgment from the are not counted in examining the divided opinions for holdings. States, Marks v. United 430 U.S. (1977). Rather, Marks instructs holding that the is the position narrowest by "taken those Members who concurred in (internal judgment]]." the Id. quotation marks and citation omitted). Therefore, rejects any Marks contention that the holding of Williams v. Illinois is Justice Thomas' and the rejection plurality's dissent's not-for-the-truth rationale. Cases, (Nov. Leading 2012). 126 Harv. L. Rev. Cf. the and cervical vaginal from victim's laboratory state in Wiscon- profile Deadwiller's swabs, which matched Deadwiller, DNA sin's database. the Marks narrowest application
We considered Illinois, Williams v. but concluded ground principle v. Illinois fit the that no Williams concurring opinion Id., We recognized rule. 30-32. grounds ¶¶ narrowest Illinois would still be as to its that Williams v. binding substantially are in a parties result when the specific Berwind, Id., F.3d (citing position. identical 234). of each case and the facts We compared in sub- Williams were Deadwiller and concluded and therefore we were identical stantially positions, Id., v. Illinois. in Williams the result specific bound bound, we noted In we were so concluding Id. cases. similarities cases, reported the crime and under- victim
In both examination, which produced went a sexual assault In containing perpetrator. vaginal DNA of swabs cases, evidence, inven- police picked up the officers both evidence, to the state and sent the evidence toried lab, to an out-of- which then sent the evidence crime Further, out-of- testing. DNA state genetic back the laboratory in both cases sent state profile perpetrator produced material and a DNA cases, lab vaginal state crime from the swabs. both database, profile DNA analysts DNA into a entered the match defendant. When which resulted in a to the analyst in both cases testify, called to the state crime lab profile by the DNA sent out-of-state reported that the resulting from data- profile lab matched the DNA was introduced into evidence profile The DNA not base. cases introduced in both in either case. Prosecutors inventory receipts, evidence reports, profile custody, i.e. DNA a chain that the prove taken from the victims. produced from swabs Id.
681 ¶ 40. Deadwiller concludes the lines of relevant and federal state Confrontation re- Clause cases. expert view, Williams and Barton establish an witness does not violate the Confrontation Clause part her when his or is based in on data by non-testifying analyst created a if the "was witness merely Williams, not a conduit." 99, 2d 253 Wis. ¶¶ Barton, 20, 25; ¶¶ accord 289 Wis. 2d 13-14. expert words, In other if the witness reviewed data non-testifying created and formed an independent opinion, expert's testimony does not violate the Confrontation Clause. ¶ 20; Barton, ¶¶ 2d 99,
Wis. 13-14. type expert federal No decision addresses this testi- mony. In Crawford, admission of testimonial state- ments of an unavailable declarant violated the Con- frontation if Clause the declarant was unavailable and prior opportunity the defendant no had to cross- examine. applied Crawford, U.S. at 59. Melendez-Diaz to conclude that testimonial state- Crawford report ments made a forensic that was admitted into by non-testifying analyst, evidence, but created violated Melendez-Diaz, the Confrontation Clause. Bullcoming go step U.S. 311. The facts of one involving further, both admission aof testimonial report forensic of an witness who independent did not conduct the tests or offer opinion. Bullcoming, S. Ct. at 2716. How- Bullcoming ever, Melendez-Diaz, Crawford, do not non-testifying analyst's address a situation where a testimonial evidence, statements do not come i.e., into where the testimonial forensic is not admitted gives and the witness who testifies at trial his or independent opinion her after review *22 analyst. otherwise, when Stated created another data original non-testifying the documents tests to under- sufficient detail another "with interpret, that ex- results," and evaluate the stand, pert's not the Confrontation does violate Kaye, Jennifer Bernstein, H. David E. & Clause. David Expert Wigmore: Evidence, Mnookin, The New L. (2d 2010); pp. ed. § 4.10.2, accord 204-05 ¶ ¶¶ Barton, 13-14. 206, 20; 2dWis. Confrontation v. Illinois has not altered Williams jurisprudence, in Dead- which we confirmed Clause ¶ Deadwiller, 2d 30. See Wis. willer. Griep's 2. circumstances compare ¶ us, we the 41. the case now before parties' posi- positions Griep parties' in to that of they are in Illinois conclude that tions Williams v. and substantially positions. First, this is in identical not Illinois, v. case. Williams not a sexual assault Cf. laboratory analysts test, Here, used a Ct. at 2229. S. gas Griep's chromatography, BAC, which to determine profile from creation of a DNA differs matching profiles process in that used DNA analyst con- Second, v. id. Williams Illinois. Cf. laboratory here in the same all of the work ducted employed witness, rather laboratory. utilizing provided by an outside than work similarity only this The between id. at 2229-30. Cf case Williams prosecution did v. Illinois is that reports into the forensic evidence not introduce 2230. either case. Id. at substantially Griep in a is not We conclude specific position Therefore, the
identical to Williams. binding in this case v. Illinois is not result Williams Deadwiller, 2dWis. as it was Deadwiller. Cf. reason, 32. For that we need not further discuss v. the various rationales of did Williams Illinois as we ¶¶ id., in Deadwiller. See 33-36.
¶ 43. Aside from its discussion Williams provides only rationales, Illinois Deadwiller also our post analysis -Williams v. Illinois of Williams and Bar- ¶¶ Id., ton. 37-40. We concluded that Williams and application Barton are consistent with our specific result Id., of Williams v. Illinois. We *23 applied Williams and Barton to the facts in Deadwiller and determined that the witness reviewed the laboratory's procedures out-of-state and offered his independent conclusion, and therefore did not violate right the Id., defendant's of confrontation. tacitly recognized
¶ 44. As Deadwiller, we in nothing in u. Williams Illinois affects our in decision application by appeals Williams and its the court in ¶¶ id., Barton17 See 37-40. In addition, v. Williams analysis Illinois not is otherwise useful our here apply18 Griep because Marks does not is not in a substantially position perpet identical to the convicted rator.19 As Williams v. Illinois does not affect our 17Other courts have held also Williams v. Illinois is "con particular fined to presented the set of in facts that case." United 2013) James, (2d 79, v. States 712 F.3d 95 Cir. (applying pre-Williams opinions); v. Illinois v. accord Jenkins United (D.C. States, 2013) 174, A.3d 189 Cir. (agreeing v. Williams Illinois is confined to its applying pre-Williams facts and v. opinions Supreme jurisdiction). Illinois in the Court and its own apply concurring Marks does not when no is Marks, 193; narrower than the others. See 430 U.S. at v. State Deadwiller, 75, 30, 2013 WI 834 N.W.2d (D.C. 362; 1991). Palmer, King v. 950 F.2d Cir. 19 Deadwiller, (concluding Wis. 2d 32¶ Dead Cf. in substantially willer was position identical in a case with facts). different appeals' applica the court of conclusion Williams or remaining apply Barton, task Williams tion in our is and Barton to this case. Testimony Harding's
C. Admission of Patrick rely pr opinions, v. Illinois 45. We on e-Williams only after our Clause decision as well as Confrontation Deadwiller, Illinois, whether to determine Williams Harding, testified in vio- witness, Patrick State's Harding Griep's of confrontation.20 lation of Griep's for BAC served as the State's witness place not avail- Kalscheur, who was testified Harding not an While able at time of trial. peer tests, Kalscheur's forensic official Harding reviewer of the data "available
testified he examined analysis day person that reviewed after the included it out." His review when went analytical chromatograms run and results of entire calibra- conducted, which described the that Kalscheur whether *24 were used to assess tion checks that properly performing whether the and machine was correctly.21 run test was Melendez-Diaz, Crawford, and However, we note that they
Bullcoming analysis focus helpful to our because are not may be entered on out-of-court testimonial statements when Crawford, are testimonial. into and what statements evidence Melendez-Diaz, 311; Bullcoming, at 59; at 557 U.S. 541 U.S. is the witness's in-court As our focus here on 131 S. Ct. Melendez-Diaz, Bullcoming do not testimony, Crawford, guide analysis. our only laboratory file included not significant that It is data, chromatograms. This gas report but also raw Kalscheur's analysis his to do own provided "adequate detail for an al., See note Kaye, supra et his conclusions." and reach own Harding
¶ 46. testified that all indications were laboratory procedures, that Kalscheur followed the working properly. Harding and the instrument was proper that the machine's testified function was evi- of dent from the results calibration run checks throughout "[t]he Harding the course said, tests. analyzed throughout calibration that are checks analytical correctly, specifically course of the run read importantly, samples the two known that brack- Griep's sample accepted eted Mr. read within their range." Harding correctly opined running that sample testing through the instrument in a resulted reading. Harding opined reliable blood alcohol also reviewing indepen- that data, after he came to an opinion Griep's finally, dent that BAC 0.152.22And was Harding's opinion laboratory procedures it was that required any irregularities notation of with the sample, by and there had been no such notation analyst.
¶ 47. Barton, Consistent with Williams and pre-Williams jurisdiction, v. Illinois law of this Hard- ing's testimony Griep's right did not violate of confron- accordingly, testimony properly tation; his admit- p. case, 201. In exercising this "the is degree independent judgment using his own expertise substantive relying entirely expertise rather than on the of others." Id. at 202; p. 20; Barton, accord 2dWis. 13-14. ¶¶ Harding That arrived at and testified to the same report, 0.152, conclusion as Kalscheur's Griep's that BAC was require does not Harding's us to conclude report. introduced Harding's Griep's Kalscheur's review opinion by file and his interpretation formed of raw using expertise merely yielded data his independent the same reached Kalscheur. *25 begins jurisprudence Confrontation Clause Our ted.23 two-part framework set out Williams with Williams. relying expert analyze witness, of an the non-testifying analyst, by a tests conducted on forensic Williams, 253 violations. Clause Confrontation expert provides testi- ¶ 99, 2d 26. Williams Wis. by part mony a non- tests conducted on based testifying of con- defendant's satisfies a (1) expert the reviewed witness: if the frontation (2) independent opinion analyst's formed an tests, and each trial. Id. We address at he testified to which requirement in turn. framework of Williams' Review
1. Barton, the ¶ and 48. In Williams both testify testing was unavailable conducted who analysts' supervisors as testified Instead, trial. they independent opinions about witnesses ¶ Barton, 289 99, 22; Williams, Wis. 2d formed. Barton, the ¶ and Williams 206, 2d both Wis. ordinary course supervisors in the reviews conducted laboratory procedures. Williams, 99, 2d 253 Wis. ¶ Barton, 2d 289 Wis. 22; see examining generally involves review 49. Peer to make in the case data collected notes taken and report are correct. in the written sure the conclusions Williams, 22. In 2d 253 Wis. operates peer test- when review how witness testified compared ing she substance: for a controlled graphs yielded graphical reflect- tests data Williams prior to opinions Supreme Court United States analysis the value of or affect Illinois do not assist in our Barton, Additionally, discussed. previously as Williams cases. of those two v. Illinois does not affect the value Williams Deadwiller, 37 — 40. See ¶¶
ing expert's ¶ standard, known, Id., values. 23. The comparison sample being allowed her to conclude the tested was a Barton, controlled substance. Id. In expert graphical case, arson used data called chromatograms stages gasoline from different evaporation gasoline present to conclude was samples. ¶ charred Barton, wood 206, 289 Wis. 2d 15. compared chromatograms The in Barton samples chromatograms samples control with expert's comparison case, from the arson similar to the in Williams. See id. Harding
¶ 50. Here, did not conduct a formal peer peer review of Kalscheur's tests. Instead, review completed by Ecker, Thomas an advanced chemist laboratory. Harding completed at the However, peer same examination as occurs in the formal review. Harding "[t]he examined same data that is available day analysis person after the for the that reviewed when it went out and that is the chromato- grams paperwork and the associated with the whole analytical August, run that Diane did on the 30th of Harding short, 2007." In reviewed the same data as the peer reviewer.
¶ 51. Our decisions indicate that the review nec- essary protect right to a defendant's of confrontation peer need not Williams, be formal review. 253 Wis. 2d ¶ 99, 20; Deadwiller, Wis. 2d 40. In Wil- presence liams, availability we reasoned: "the highly qualified cross-examination of a witness, who is procedures supervises familiar with the hand, or testing analyst, reviews the work of the and renders expert opinion protect her own is sufficient to a defen- right dant's Williams, confrontation." Similarly, Deadwiller, witness's laboratory's profile, review of the out-of-state DNA quality procedures, measures was suffi- control protect of confrontation. the defendant's cient to report, Harding's review of Kalscheur's require- the Williams review notes fulfills data, and data. See he reexamined the ment because Harding's ¶¶ Therefore, review 22-23. 2d 253 Wis. Griep's right protect confrontation, was sufficient *27 Harding's independent opinion. with when combined opinion Independent 2. expert Barton,
¶ the In both Williams and 53. opinion independent based or her witness offered his non-testifying provided by part the data in on expertise. expert See witness's own and ¶¶ Barton, 25-26; Williams, 99, Wis. 2d ¶ and Barton also discussed 206, 16. Williams Wis. 2d they qualifications expert and noted witnesses' give expert opinion qualified on the an based to were Williams, 99, 253 Wis. 2d them. information before ¶¶ ¶ 13, 16. We dis- Barton, 206, 2d 21; 289 Wis. opinion independent thor- most of an cussed the role expert oughly "one Williams, we stated that in where opinion of an- for the as a mere conduit cannot act ¶ However, we Williams, 2d 19. 253 Wis. other." independent expert may recognized form an that an part opinion of others without in on the work based acting ¶ Id., 25. as a "conduit." expert
¶ reviewed Williams, the witness 54. including analyst, by the data another the tests done opinion. Id. We own then formed her notes, and opinion testifying expert's was that concluded protect sufficiently independent defendant's to a mere recitation confrontation, and was not analyst's ¶¶ Id., In Bar- 25-26. conclusions. another ton, the offered his based on his review including file, of the entire data similar to chro- matograms Barton, case. this Wis. 2d appeals expert's ¶¶ 13-14. The court concluded the testimony independent opinion. Id,., was his Harding qualified present Here, laboratory procedures on the come to independent opinion regarding Griep's BAC. To arrive Harding conclusion, at his on relied his review of data compiled Kalscheur, collected other records at the laboratory, expertise. Pointing and his own to Hard- ing's personal knowledge testing lack of of Kalscheur's Griep's sample, argues Harding's Griep of opinion blood independent.
could
have been
However,
not
we
appeals
held in
and the court of
held
acceptable
analyst's
Barton, that it was
that the
re-
port, data, and notes were the factual
bases of
opinion, in
witness's
addition
the witness's
professional expertise. Williams,
own
¶
Barton,
25;
¶ results reviewed Kalscheur's test 56. laboratory records and he testified and other relevant independent opinion. In with to his accordance as Harding's Barton, did not Williams Griep's right Williams, 253 violate of confrontation. ¶ ¶ Barton, 26; 206, 289 Wis. 2d 20. Wis. 2d
III. CONCLUSION Harding's ¶ We conclude that review including Griep's the forensic test re- file, trial, to of an who was unavailable for sults independent opinion did to which he testified form an Griep's right Williams, 253 of confrontation. not violate ¶ Barton, 20. Ac- 26; Wis. 2d appeals cordingly, affirm the court of decision we Harding's affirmed the circuit court's admission testimony. appeals
By decision of the court the Court.—The is affirmed. PROSSER, J., withdrew from 58. DAVID T.
participation. {concur- ABRAHAMSON, C.J. SHIRLEY S. yet
ring). Supreme Court has not The United States imposed by of the limitations defined the contours followed, operating properly, properly the instrument *29 accepted is within the bounds of calibrated." This statement analyst's procedures as Barton. in assessment of the
691 Confrontation Clause on forensic evidence and testimony. The fractured decisions of the Court in this may changes field be an omen of to come in Confron- jurisprudence.1 tation Clause ¶ 60. In meantime, however, federal and state courts must determine how the Confrontation applies Clause to forensic evidence and testi- mony.2 present, At federal and state cases are all over map attempts apply in their to the Court's Con- frontation Clause decisions. develop apply evolving 61. As courts this
body
goal"
law,
of
the "ultimate
of the Confrontation
Clause must be remembered: To ensure that the reli-
ability
particular
of evidence is
"assessed
manner,"
namely "by testing
in the
crucible of cross-
majority opinion
examination."3 The
seems to lose
sight
goal.
separately
bring
goal
of this
I write
the Confrontation Clause back into focus.
Washington,
v.
541
36,
U.S.
61
Crawford
(2004),
Supreme
the United States
Court declared that
1 See,
example,
Illinois,
Williams v.
¶ Wisconsin, a forensic 63. prosecutorial particular is created defendant that purposes testimonial an out-of-court is considered that such under It is clear statement.4 Crawford report without into evidence introduced cannot be prepared testimony it unless the who from the previously cross- and was unavailable is by the defendant. examined precise regarding Ambiguity
¶ remains 64. Clause the Confrontation under which circumstances expert permits testi- introduction of substitute mony forensic test results when forensic about report not introduced. itself is 58, Williams, 2002 WI 65. In State established 919, this court 2d 644 N.W.2d Wis. the State to not allow Clause does the Confrontation simply expert surrogate stand to the witness call a a forensic read or summarize have the "one held that else. The court someone authored opinion for the mere conduit act as a cannot violating constitu- the defendant's without another" State's witnesses.5 to confront the tional 48-49, Wis. 2d State v. ¶¶ 2002 WI 919. 644 N.W.2d 5Id., Similarly, Bullcoming Mexico, v. New (2011),
131 Ct. S. which results of certified a blood alcohol were test introduced with sign from perform did "a scientist who not the certification or reported or observe test in the certifica- "bluntly Supreme tion," the United States Court held *31 'surrogate' expert testimony that such violates the right. confrontation The accused's is to confront analyst performed the test, lab who the unless the analyst] [the state can show that lab is unavailable [the] opportunity pretrial and that defendant had an cross-examine him."6 present case, the State obtained report
testimonial forensic that concludes the defen- percent. dant's blood alcohol content was 0.152 The analyst prepared report who the forensic unavail- was able for trial. The not, however, had been previously. cross-examined Thus, defendant report forensic itself could not be introduced. ¶ 68. The did State not introduce the forensic report. Harding, Instead, the State called Patrick employee in the same in which the forensic analysis conducted, as a substitute witness testify prepared in lieu who report. Harding personal had no connection with report
the forensic at issue. He had not observed the sample participated defendant's blood and had not testing. Harding its nevertheless testified about the subject matter of the forensic and testified that opinion, in his the defendant's blood alcohol content percent. was 0.152 Blinka, Daniel Wisconsin Practice Series: Wisconsin D. (3d Part).
Evidence 802.303, ed., § 2014 Pocket majority opinion distinguishes ¶ 70. The the in- prior Supreme stant case from United States Court cases in which the Confrontation Clause was held to ground have violated on been that the State in the instant case did not introduce an out-of-court testimo- According majority opinion, nial statement. to the although Harding's opinion analyst's was based on the out-of-court testimonial statement, it nevertheless qualifies independent. as govern ¶ 71. does not the introduction Crawford based on an out-of-court testimonial governs
statement; it the introduction of the out-of- majority court Thus, testimonial statement itself. opinion reasons, there was no Confrontation Clause violation in the instant case. disagree majority opinion's
¶ 72. I with the analysis. my Harding's stretch, It is a view, to call opinion independent. Harding I conclude that served *32 opinion analyst per- as a conduit for the of the who testing my opinion, formed the forensic In issue. the analyst's out-of-court testimonial statement was indirectly through Harding's introduced —albeit tes- — timony. reading ¶ 73. Under a strict of Hard- Crawford, ing's testimony violated the defendant's Confrontation rights analyst Clause because the whose out-of-court Harding indirectly testimonial statement introduced previously had not been cross-examined the defen- reading I conclude, dant. however, that such a narrow progeny improperly ignores of and its the Crawford underlying values the Confrontation Clause and the practical realities the State and the courts face in cases rely that on forensic evidence. It also fails to take into reliability account the of forensic and evidence fails to goal enabling give proper weight the to the State to prosecute possible. trial a crime when a fair is my opinion, fair, courts should search for practical, evidentiary rules and should workable not deem the Confrontation Clause violated whenever prosecution to call to the witness stand all fails testimony may accuracy relevant to the of the whose be testing particular forensic at issue in a case. Keeping majority, plurality, ¶ 75. and minor- ity writings justices of the United States Su- preme progeny mind, Court in and its in Crawford seeking interpretation of the law best available light binding upon court, authorities this I expert testimony conclude that the substitute at issue in the instant case satisfies the Confrontation Clause.
I begin by examining majority opinion's ¶ 76. I Harding indepen- determination testified to an opinion merely dent and was not a conduit for the opinion performed who the forensic testing at issue.7 77. State v. 644 N.W.2d
¶¶ 25-26, 644 N.W.2d held that per- witness other than the who testing testify formed the forensic at issue can to "an independent expert opinion" violating without Clause, Confrontation even when that is based part gathered by "on facts and data someone else." opinion provided by Whether the such a substitute *33 independent witness is an one must be deter- case-by-case mined on a basis.
7 majority 3, 46-47, 52, op., See ¶¶ 55-57. Independence question degree. ¶ 78. ais Wil- precise degree indepen- liams does not reveal the judgment undergird expert's opin- dent that must an ion for a court independent to characterize as purposes. for Confrontation Clause purposes It clear, however, is that for of the Clause, Confrontation a substitute witness merely must do more than recite or summarize the Consequently, work of another.8 the fact that present forensic itself was not introduced in the dispositive. question case is not "The is not whether [the report] documentary forensic is disclosed form, orally recapitulated by testifying expert. or Rather, appropriate question is whether the substance of the testimonial materials is shared with the fact-finder suggest report's being truth, its without the author available for cross-examination."9 present Harding
¶ 80. In the case, testified that offering independent opinion. Harding's he was binding characterization of his is not on the supported by court and not is the record. Harding
¶ 81. stated at trial that he reviewed analyst's "report when it went out and that is the chromatograms paperwork and the associated with the analytical analyst] [the whole run that did." Harding policies ¶ 82. was familiar with the procedures in which the forensic analysis place. took He testified that all indications laboratory procedures were that standard were fol- chromatograph prop- lowed and that the machine was erly calibrated. 8 Williams, ¶ 19. al., Evidence, Kaye David H. Wigmore: Expert et The New (2d 2010). 4.10.2, at 200 ed.
§ *34 any Harding not, however, did have first- knowledge procedures that the were followed in hand Harding testify present to about case. was unable sample handling or the of the defendant's blood steps preceded chromatograph that machine's Harding knowledge analysis sample. of that had no labeling loading sample or of the defendant's blood knowledge sample's appearance and had no or laboratory. Harding upon at the made no odor arrival testing. sample Hard- direct observations of the or its testify ing could not about whether there was human testing process error sample. the defendant's blood say Harding sum, was unable to whether sample the blood was received intact or whether the testing performed according blood alcohol content protocol. are the "These kinds facts mattered Bullcoming to the Court."10 Harding's only determining ¶ 85. basis for analyst's defendant's blood alcohol content was the report supporting Harding and documentation. did any not, not, could offer different or additional analysis beyond that contained in the forensic Harding greater and attached materials. had no con- specific testing nection with the forensic than issue any qualified Harding's other forensic from lab would have had. Harding
¶ 86. The documents and information my not, view, reviewed were Harding sufficient to enable independently interpret, "understand, [forensic test] evaluate the results."11 I conclude that purposes Harding Clause, of the Confrontation (Cumulative al., 4.12.4, Kaye supra et note at 69 § 2015). Supp. 11Kaye al., 9, 4.10.2, supra et note at 205. § provide indepen- lacked sufficient information to dent about the defendant's blood alcohol con- Harding through tent. inwas, essence, a conduit which analyst's the State entered another otherwise inadmis- *35 sible into evidence. My position Harding
¶
provide
87.
that
failed to
independent opinion
supported by
an
is
the United
Supreme
reasoning
Bullcoming
States
Court's
v.
(2011),
Mexico,
New
12 Bullcoming,
The Court convey performed the all that the who cannot expose testing and cannot knows or observed forensic analyst's part.14 any lapses Thus, the on the analysts subject "if all be to confrontation even should always possessed Mme. the scientific acumen of Curie veracity of Mother Theresa."15 Similarly, that a Melendez-Diaz stresses solely on witness who testifies based substitute gas chromatograph process will have the results knowledge past no of the events and human little to helped results. As a actions that determine those result, wit- cross-examination substitute effectively cannot uncover mistakes or miscon- ness analyst, can results of duct which render the gas chromatograph process unreliable. acknowledged Melendez-Diaz, the Court *36 "[fjorensic uniquely immune evidence is not from manipulation."16 the risk of Mistake or misconduct can analyst results.17 "A influence forensic test responding forensic request to a from a law enforcement official may pressure feel have an incentive —to alter the —or prosecution."18 in a favorable to evidence manner the recognized Harding appears
¶ 93. have admitting dangers posed by his in lieu of 14 Bullcoming, 131 S.Ct. 2715-16. 15 (2009). Melendez-Diaz, See also U.S. 319 n.6 Bullcoming, at 2715. S. Ct. 16 Melendez-Diaz, U.S. at 318. 17Indeed, in according to an amicus brief submitted by Network, "[u]nvalidated case the Innocence instant or leading wrongful improper forensic is a con science cause victions, a playing role in the cases almost half of wrongfully people in the who convicted United States have testing." exonerated DNA been 18 Melendez-Diaz, 557 U.S. at testimony by analyst performed who the forensic testing question. On cross-examination, defense Harding analyst counsel asked whether the who tested sample tampered the defendant's blood could have sample Harding with the had she "had a mind to do it." responded: "[I]f analyst something wanted to do happen." nefarious, sure, that's correct, that could analyst's Defense counsel then asked whether an tam- pering sample possibly your escape with a blood "could you reports detection when review the written Harding replied: materials." "Sure." colloquy 94. This demonstrates the inherent gas limits to what an can know about chroma- tography testing performed by someone else. Because of these limits, substitute witness can do little parrot findings more than summarize the work and performed testing. Harding of the who parroted no different; he summarized the work and findings performed who the forensic testing at issue. reading In sum, a careful of case law and of
Harding's testimony Harding reveals that was unable testify gas chromatograph process about the at issue by relying disclosing other than on, and the substance generated by analyst's of, materials another use of the gas chromatograph machine. Harding 96. The State called as a witness
order to introduce the otherwise inadmissible conclu- report prepared by sion of a testimonial forensic some- *37 Harding provide insight one else. could not into the testing process by disclosing other than the substance itself. Under the circumstances of the present Harding provide independent case, did not an opinion. underlying The values the Confrontation by testimony protected from,
Clause would be better analyst prepared of, who and cross-examination report. II my view, a defendant's Confrontation against rights practical be balanced Clause must cross-examining analyst reality who that the forensic always pos- performed testing not at issue will be necessary. not—and need not sible or Courts should Supreme precedent under current United States Court indicia reliabil- —exclude forensic evidence that has analyst performed testing ity is when the who unavailable but a substitute witness is available significant provide to useful and information about and to to cross-examination.19 evidence submit although Harding's Thus, I conclude that testimony indirectly introduced an out-of-court testi- made who monial statement unavailable previously although cross-examined, had not been I conclude that the Confrontation Clause would be by testimony protected from, and better cross- of, examination who conducted the forensic testing my analysis issue, at does not end there. Kennedy's Bullcoming 99. As Justice dissent explains, Supreme the United States Court lacks the experience familiarity processes with state trial
19"Thus, unavailability is and a mean when there both ingful imperfect contemporaneous substitute cross- but examination, Constitution, according Crawford, does not [N]ecessity ought permit require wholesale exclusion... . al., 9, 4.12.2, Kaye supra et note second-best solution." § (Cumulative 2015). Supp. 66-67 *38 necessary to make it well-suited for the role of a Accordingly, national for rules of tribunal evidence.20 development this court should contribute to the evidentiary pay rules that heed to the constitutional practical courts, State, concerns of state and presents defendants. The instant case the court with opportunity just to do that. ¶ 100. an When becomes unavailable submitting to without first cross-examination subject analyst's testing, happens forensic what produced by testing? to the results that If Crawford imposes rigid, non-independent a wholesale ban on expert testimony substitute about forensic test results previ- when an forensic unavailable has not ously cross-examined, been how could the results be they short, introduced? In could not. me, It however, seems that Crawford rigidity.
does not dictate I such reach this conclusion (which recognizes on based itself Crawford opportunity to cross-examine a witness at trial is not always possible necessary21) or and on Crawford's progeny. separate writings
¶ 102. The issued Bullcom- particularly ing are instructive. Sotomayor's
¶ 103. Justice concurrence in Bull- coming clear that makes Court "would face a question Bullcoming [than prior different faced constitutionality cases] if asked to determine the allowing others' testimo- witness discuss nial statements if the testimonial statements were not J., Bullcoming, (Kennedy, dissenting). 131 S. Ct. Crawford, prior opportunity Under a to cross-examine constitutionally provides adequate an unavailable witness alternative to cross-examination of the witness at trial. very
themselves admitted as evidence."22 That is the in the instant case.23 question presented Sotomayor Justice that Bull- emphasized *39 read Justice coming narrowly. Sotomayor should be Bullcoming wrote that cases would not prior control future cases in which "the is a person testifying reviewer, else a personal, or someone with supervisor, limited, connection to the scientific test at albeit is- sue."24 did Sotomayor 105. Justice not explain
level of involvement a substitute witness must have with "scientific test at issue" to render the wit- ness's under the Confrontation testimony permissible However, Clause. of Justice implication Sotomay- or's concurrence is that if a substitute Bullcoming expert witness testifies who has even a limited connec- issue, tion to the there not testing might any be Confrontation Clause violation: Bullcoming, analyst]
[In
conceded on cross-
played
examination that
producing
he
no role in
report
any portion
BAC
and did not observe
... of the
if,
testing....
example,
It would
a different
be
case
supervisor
a
conducting
who observed an
a
J.,
Bullcoming,
(Sotomayor,
objected extension of to the According dissenters, to the Melendez- Melendez-Diaz. prohibit the introduction of a testimonial Diaz does not knowledgeable representative when forensic "present testify explain is and to of a report."26 processes Nor, the details of the lab's view, the dissenters' does the Confrontation Clause. ¶ 107. The dissent reasons that a blood alcohol mechanically gas analysis performed content "is *40 chromatograph, may operate which . . . after all the day."27 employees for Under these leave concludes, introduction circumstances, the dissent testimony report along of a of a forensic with the knowledgeable laboratory representative who is avail- "fully consistent with the able for cross-examination is prin- Confrontation Clause and with well-established ciples ensuring are conducted for that criminal trials requirements fairness and reli- in full accord with ability guarantee."28 the confrontation and with post Keeping ¶ 108. these and other -Crawford Supreme writings justices of the of the United States interpretation seeking mind, in and the best Court light binding in of the authorities the law available 25Id J., (Kennedy, dissenting). Id. J., (Kennedy, dissenting). Id. at 2724 J., (Kennedy, dissenting). Id. at 2723
upon expert court, this I conclude that the substitute at issue the instant case satisfies Confrontation Clause. specifically, I conclude that in the expert 109. More case,
instant cross-examination of a substitute provide independent opinion fails to witness who permissible constitutes alternative to cross- analyst performed examination of the who the forensic testing following at issue when the conditions are met: cross-examination, analyst
1. The unavailable for is through parties; no fault Re-testing possible; is not 3. The recorded the forensic test results at or testing regularly near the time of in the course of a activity unlikely conducted and would be to have an independent memory (because, performed of the test example, analyst processed many such tests period); within a short The way recorded the results in a
another in the field could understand interpret; and qualified
5. The substitute is witness to discuss interpret original subject results and is cross-examination. appear
¶ 110. Because these conditions to have present Harding's case, been met I conclude that *41 expert testimony substitute fulfills the minimum re- quirements Thus, Confrontation Clause. like the majority opinion, I would it. allow finally, determining
¶ 111. I note, that Harding's testimony permissible is under the Confron- cognizant Clause, tation I am of "the fundamental relationship be- underlying dilemma" doctrinal and forensic evidence: Confrontation Clause tween the the Con- fundamental mismatch between [T]here is a testifying the individual Clause's focus on frontation knowledge produc- scientific expert and the nature of not, tion, is, a collective rather more often than which depends enterprise. Science often than an individual to the degree epistemic deference on a certain findings . . . and scientists of others conclusions cognition" [] in which engaged in "distributed are often question . . . knowledge [particular] relevant to a network of humans and ma- across a stretches only a witness uses a modicum [W]hen chines. . . . opine evaluate and on tests independent judgment to knowledge others, problem of distributed done this head.29 Clause rears its and the Confrontation forth, I sepa- set write 112. For the reasons rately. that Justice ANN I am authorized to state this joins opinion. BRADLEY
WALSH (Cumulative 4.12.11, al., at 100 Kaye supra note § et omitted). 2015) (footnotes Supp.