State v. Michael R. Griep , 361 Wis. 2d 657 ( 2015 )

2015 WI 40
SUPREME COURT OF WISCONSIN
CASE NO.: 2009AP3073-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Michael R. Griep,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 353 Wis. 2d 252, 845 N.W.2d 24
(Ct. App. 2014 – Published)
PDC No: 2014 WI App 25
OPINION FILED: April 23, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: November 12, 2014
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Winnebago
JUDGE: Thomas J. Gritton
JUSTICES:
CONCURRED: ABRAHAMSON, C.J., BRADLEY, J., concur. (Opinion
Filed)
DISSENTED:
NOT PARTICIPATING: PROSSER, J., withdrew from participation.
ATTORNEYS:
For the defendant-appellant-petitioner, the cause was
argued by Tricia J. Bushnell, Kansas City, MO. The briefs were
filed by Tricia J. Bushnell.
For the plaintiff-respondent, the cause was argued by
Michael C. Sanders, assistant attorney general, with whom on the
brief was J.B. Van Hollen, attorney general.
An amicus curiae brief was filed by Keith Findley on behalf
of The Innocence Network, Madison.
An amicus curiae brief was filed by Kelli S. Thompson,
state public defender, and Jefren E. Olson, assistant state
public defender, on behalf of the Office of the State Public
Defender.
2
2015 WI 40
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2009AP3073-CR
(L.C. No. 2007CT1130)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent, FILED
v. APR 23, 2015
Michael R. Griep, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
1 PATIENCE DRAKE ROGGENSACK, J. We review a decision
of the court of appeals1 that affirmed the circuit court's2
ruling that admitted an expert witness's testimony that
established the blood alcohol concentration (BAC) of Michael R.
Griep while he was operating his vehicle. The expert witness,
Patrick Harding, based his opinion in part on forensic tests
conducted by an analyst at the Wisconsin State Laboratory of
1
State v. Griep, 2014 WI App 25, 353 Wis. 2d 252, 845
N.W.2d 24.
2
The Honorable Thomas J. Gritton of Winnebago County,
presided.
No. 2009AP3073-CR
Hygiene (Wisconsin State Laboratory) who was unavailable for
trial. Based on Harding's testimony, Griep was convicted of
operating a motor vehicle while intoxicated (third offense).
¶2 Griep appealed, contending that his right of
confrontation was violated when the circuit court allowed
Harding to rely in part on the analyst's forensic test results.
The court of appeals affirmed, concluding that Griep's right of
confrontation was not violated because Harding reviewed the
analyst's forensic test results and other records and formed an
independent opinion of Griep's BAC, as approved in State v.
Williams,3 2002 WI 58, 253 Wis. 2d 99, 644 N.W.2d 919 and State
v. Barton, 2006 WI App 18, 289 Wis. 2d 206, 709 N.W.2d 93.
State v. Griep, 2014 WI App 25, ¶¶19, 22, 353 Wis. 2d 252, 845
N.W.2d 24.
¶3 We conclude that Harding's review of Griep's
laboratory file, including the forensic test results of an
analyst who was unavailable for trial, to form an independent
opinion to which he testified did not violate Griep's right of
confrontation. Williams, 253 Wis. 2d 99, ¶26; Barton, 289
Wis. 2d 206, ¶20. Accordingly, we affirm the court of appeals
decision that affirmed the circuit court's admission of
Harding's testimony.
3
We refer to all subsequent references to State v.
Williams, 2002 WI 58, 253 Wis. 2d 99, 644 N.W.2d 919, as
Williams. We refer to Williams v. Illinois, __ U.S. __, 132
S. Ct. 2221 (2012), a different case, as Williams v. Illinois.
2
No. 2009AP3073-CR
I. BACKGROUND
¶4 This review involves Griep's claimed violation of his
right of confrontation regarding Harding's expert testimony that
was based in part on results of forensic tests conducted by an
analyst who was unavailable for trial. The historic facts are
not in dispute.
¶5 On Saturday, August 25, 2007, at approximately 12:48
a.m., a Winneconne Police Department officer stopped Griep for
speeding, for which he planned to issue a warning ticket.
However, while talking with Griep, the officer smelled the odor
of alcohol and observed Griep's bloodshot and glassy eyes.
¶6 In response to the officer's question about alcohol
consumption, Griep stated that he drank a couple of beers at a
local bar. When the officer asked Griep to perform field
sobriety tests, Griep agreed. Griep's performance on the field
sobriety tests indicated that he was intoxicated. After further
discussion, Griep admitted he had four beers. Griep agreed to
perform a preliminary breath test that also indicated
intoxication. The officer reviewed Griep's record, which showed
two prior convictions for OWI. The officer transported Griep to
a nearby hospital for a blood draw. At the officer's request,
hospital staff conducted the blood draw without Griep's consent.4
4
The warrantless, nonconsensual search is not an issue in
our review. Griep has not claimed that his blood draw was
unconstitutional before the circuit court, court of appeals, or
during our review. See Missouri v. McNeely, 569 U.S. __, 133
S. Ct. 1552, 1556 (2013), abrogating our decision in State v.
Bohling, 173 Wis. 2d 529, 547, 494 N.W.2d 399 (1993); see also
(continued)
3
No. 2009AP3073-CR
¶7 The officer observed a phlebotomist draw Griep's blood
and place it in closed vials. The blood kit was properly
sealed. The blood kit was secured at the Winneconne Police
Department before it was mailed to the Wisconsin State
Laboratory.
¶8 Wisconsin State Laboratory analyst Diane Kalscheur
received and analyzed Griep's blood sample. Kalscheur authored
a concise report stating: (1) she received Griep's labeled and
sealed blood sample, and (2) Griep's blood was tested for
ethanol and that testing revealed a certain ethanol
concentration. Thomas Ecker, an Advanced Chemist at the
laboratory, conducted a peer review of Kalscheur's report and
signed the laboratory report under the statement "As designee of
the Director, I do hereby certify this document to be a true and
correct report of the findings of the Wisconsin State Laboratory
of Hygiene."
¶9 At Griep's trial for third-offense OWI, the
phlebotomist testified about instructions for collecting blood,
using the kit provided by a police officer, and her role in
inspecting the blood kit before its use.
¶10 Kalscheur was unavailable at the time of trial.5
Instead, the State called Patrick Harding, section chief of the
toxicology section of the Wisconsin State Laboratory, as an
State v. Foster, 2014 WI 131, ¶6, __ Wis. 2d __, 856 N.W.2d 847;
State v. Kennedy, 2014 WI 132, ¶33, __ Wis. 2d __, 856 N.W.2d
834.
5
Kalscheur was on leave at the time of trial.
4
No. 2009AP3073-CR
expert witness. Harding testified that he had reviewed
Kalscheur's work and examined the data produced by Kalscheur's
testing, specifically the chromatograms, as well as other
records associated with the tests Kalscheur performed. Harding
said that he was familiar with the process of obtaining blood
samples for ethanol testing, shipping them to the laboratory,
processing them for analysis, and the analysis of the samples.
¶11 When the State asked Harding's opinion on whether
Kalscheur tested Griep's blood sample consistently with
laboratory procedures, defense counsel objected on Confrontation
Clause grounds. Harding testified that all indications were
that Kalscheur followed the laboratory procedures and that the
instrument was working properly. Harding said that the
machine's proper function was evident from the results of
calibration checks run throughout the course of the tests of
Griep's samples. Harding concluded that the results of those
calibration checks, in particular those Kalscheur ran
immediately before and after the Griep samples, showed the
reliability of the machine's results. Harding opined that
correctly running the sample through the calibrated instrument
resulted in a reliable blood alcohol reading. Harding concluded
that after reviewing all of the available data, he came to an
independent opinion that the alcohol concentration in Griep's
blood was 0.152 grams of ethanol per 100 milliliters of blood.
Harding also testified as to laboratory procedures and that if
there had been irregularities with the sample, they would have
been noted on a form by the analyst. None were noted.
5
No. 2009AP3073-CR
¶12 During cross-examination, Harding acknowledged that an
analyst could commit misdeeds, possibly without detection.
Harding also acknowledged that it is important that the analyst
be competent and honest. Harding testified that when he
testifies about forensic tests that he has personally completed,
he relies on the paperwork and notes he completed at the time of
testing because analysts at the laboratory conduct so many tests
that no one can remember details about each particular sample
without reviewing the notes that were made contemporaneously
with the tests.
¶13 Griep's motion in limine and objection at trial that
sought to preclude Harding's testimony were grounded in the
Confrontation Clause. He relied on Melendez-Diaz v.
Massachusetts, 557 U.S. 305 (2009); Crawford v. Washington, 541
U.S. 36 (2004); and their relationship to Williams and Barton.
The circuit court considered the Confrontation Clause issue
after conclusion of the presentation of evidence at the bench
trial. The circuit court denied Griep's motion; heard closing
arguments; adjudged Griep guilty; convicted and sentenced him.
¶14 Griep appealed. Before the court of appeals issued
its decision, the United States Supreme Court accepted a
petition in State v. Bullcoming, 226 P.3d 1 (N.M. 2010). See
Bullcoming v. New Mexico, 561 U.S. 1058 (2010) (granting
certiorari). The court of appeals held Griep's case in abeyance
6
No. 2009AP3073-CR
pending the outcome in Bullcoming because the question presented
in that case6 was similar to the question in Griep's appeal.
¶15 As the court of appeals was again about to undertake
Griep's appeal, the court learned that the United States Supreme
Court had granted certiorari in another relevant case, People v.
Williams, 939 N.E.2d 268 (Ill. 2010). See Williams v. Illinois,
__ U.S. __, 131 S. Ct. 3090 (2011) (granting certiorari). The
court of appeals once again held Griep's case to await the
outcome in Williams v. Illinois because the decision on the
question presented7 may have had an effect on Griep's appeal.
¶16 On May 15, 2013, the court of appeals certified the
appeal to us.8 On June 14, 2013, we held the certification in
6
The question presented in Bullcoming was "[w]hether the
Confrontation Clause permits the prosecution to introduce
testimonial statements of a nontestifying forensic analyst
through the in-court testimony of a supervisor or other person
who did not perform or observe the laboratory analysis described
in the statements." Petition for a Writ of Certiorari at i,
Bullcoming v. New Mexico, __ U.S. __, 131 S. Ct. 2705 (2011)
(No. 09-10876), 2010 WL 3761875.
7
The question presented in Williams v. Illinois was
"[w]hether a state rule of evidence allowing an expert witness
to testify about the results of DNA testing performed by non-
testifying analysts, where the defendant has no opportunity to
confront the actual analysts, violates the Confrontation
Clause." Petition for a Writ of Certiorari at i, Williams v.
Illinois, __ U.S. __, 132 S. Ct. 2221 (No. 10-8505), 2010 WL
6817830.
8
The court of appeals, in its certification, defined the
issue as "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
(continued)
7
No. 2009AP3073-CR
abeyance pending our disposition of State v. Deadwiller. See
State v. Deadwiller, 2013 WI 75, 350 Wis. 2d 138, 834 N.W.2d 362
(decided July 16, 2013). On November 20, 2013, we refused
certification. The court of appeals issued its opinion
February 19, 2014, and held that Barton remained good law.
Griep, 353 Wis. 2d 252, ¶22. The court held that "the
availability of a well qualified expert, testifying as to his
independent conclusion about the ethanol testing of Griep's
blood as evidenced by a report from another state lab analyst,
was sufficient to protect Griep's right to confrontation." Id.
II. DISCUSSION
A. Standard of Review
¶17 We review whether Harding's testimony, particularly
his reliance on testing conducted by Kalscheur, violated Griep's
right of confrontation. While "a circuit court's decision to
admit evidence is ordinarily a matter for the court's
discretion, whether the admission of evidence violates a
defendant's right of confrontation is a question of law subject
to independent appellate review." Deadwiller, 350 Wis. 2d 138,
¶17 (quoting Williams, 253 Wis. 2d 99, ¶7).
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?" Petition for
Certification at 1, Griep, 353 Wis. 2d 252 (No. 2009AP3073-CR),
2013 WL 1978568 (Petition denied).
8
No. 2009AP3073-CR
B. Confrontation Clause
¶18 Griep argues that Harding's testimony violated his
rights under the Confrontation Clause. The Sixth Amendment
Confrontation Clause provides "In all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the
witnesses against him." We begin by recognizing that the Sixth
Amendment right of an accused to confront the witnesses against
him is a fundamental right, as made applicable to and obligatory
on the states by the Fourteenth Amendment. Pointer v. Texas,
380 U.S. 400, 403 (1965) (concluding that the Sixth Amendment
right to confront witnesses against the accused is a fundamental
right).
¶19 In Williams, we first examined whether a laboratory
unit leader's trial testimony, based in part on a report
authored and tests conducted by an analyst who did not testify
at trial, violated the Confrontation Clause. Williams was on
trial for possession of cocaine with intent to deliver.
Williams, 253 Wis. 2d 99, ¶¶3-4. A crime laboratory unit leader
testified as to her expert opinion based in part on a state
crime laboratory report that showed a substance in Williams'
possession was cocaine base. Williams argued his right of
confrontation was violated when the crime laboratory unit leader
testified rather than requiring the analyst who performed the
laboratory tests to testify and also when the circuit court
admitted the state crime laboratory report. Id., ¶4.
9
 No. 2009AP3073-CR
¶20 We held that the unit leader's testimony did not
violate Williams' right of confrontation. Id., ¶¶20, 26. We
stated:
[T]he presence and availability for cross-examination
of a highly qualified witness, who is familiar with
the procedures at hand, supervises or reviews the work
of the testing analyst, and renders her own expert
opinion is sufficient to protect a defendant's right
to confrontation, despite the fact that the expert was
not the person who performed the mechanics of the
original tests.
Id., ¶20. Regarding the independent expert's opinion, we opined
that "an expert who forms an opinion based in part on the work
of others and an expert who merely summarizes the work of
others" are quite different because in that later instance, the
expert would be "a mere conduit for the opinion of another."
Id., ¶19.
¶21 We concluded that the expert witness in Williams was
highly qualified to render an expert opinion and was closely
connected to the tests and procedures involved in the actual
tests. Id., ¶¶21-22. The expert witness was a unit leader at
the Wisconsin State Laboratory with nine years of experience, a
bachelor's degree in chemistry with some graduate courses, who
had substantial experience analyzing for the presence of
controlled substances. Id., ¶21. The witness also was familiar
with the various tests and had performed peer review on the
tests. Id., ¶22. The expert's peer review involved comparing
the notes with the evidence and the conclusions, and conducting
an overall examination of the data "making sure that all the
10
No. 2009AP3073-CR
notes coincide with the evidence, [and] that the data coincides
with [the] conclusion." Id. Additionally, we determined that
the witness was "not merely a conduit" for another's opinion,
but rather, she testified as to her independent opinion based in
part on facts and data gathered by someone else.9 Id., ¶25.
¶22 We also considered whether a laboratory report
authored by the non-testifying analyst violated the defendant's
right of confrontation when it was admitted into evidence. Id.,
¶32. We analyzed the admissibility of the report and the expert
witness's testimony as two separate issues. Id. First, we held
that the laboratory report was not properly admitted as a
business record under Wis. Stat. § 908.03(6) (1997-98), in part
because it was prepared for litigation. Id., ¶49. However, we
concluded that the report's admission was harmless error. Id.,
¶50. Second, we evaluated the expert witness's testimony. In
reaching our conclusion that admission of the report was
harmless error, we regarded the expert witness's testimony as
compelling and credible evidence from which the jury could have
concluded the substance at issue was cocaine. Id., ¶52. Stated
otherwise, the witness's opinion was constitutional, and that
9
Stated otherwise, Williams permits a "substitute expert"
to testify when "the original test was documented in a thorough
way that permits the substitute expert to evaluate, assess, and
interpret it." David H. Kaye, David E. Bernstein, & Jennifer L.
Mnookin, The New Wigmore: Expert Evidence, § 4.10.2, p. 204 (2d
ed. 2010). Furthermore, "the surrogate can be meaningfully
cross-examined about the tests that were conducted (and those
that were not), and questioned about the legitimacy of the
original analyst's conclusions and interpretations." Id.
11
No. 2009AP3073-CR
conclusion was unrelated to whether the admission of the report
violated the Confrontation Clause.
¶23 Griep's contention appears to be addressed by the rule
we set out in Williams. However, before proceeding to apply
Williams to his claimed Confrontation Clause violation, we
consider whether federal opinions issued subsequent to Williams,
including Crawford, Bullcoming v. New Mexico, __ U.S. __, 131
S. Ct. 2705 (2011), and Williams v. Illinois, __ U.S. __, 132
S. Ct. 2221 (2012), affect our conclusions in Williams.
1. Relevant federal opinions
¶24 In 2004, the United States Supreme Court took up the
Confrontation Clause in Crawford. At Crawford's trial for
assault and attempted murder, he claimed self-defense.
Crawford, 541 U.S. at 40. The defendant's wife did not testify
"because of the state marital privilege, which generally
[barred] a spouse from testifying without the other spouse's
consent." Id. "[The] privilege [did] not extend to a spouse's
out-of-court statements admissible under a hearsay exception."
Id. The state sought to admit the wife's statement to police as
a statement against penal interest. Id. On review, the Supreme
Court held that admission of out-of-court testimonial statements
violated the Confrontation Clause unless the declarant is
unavailable and the defendant had a prior opportunity to cross-
examine the declarant. Id. at 59.
¶25 Crawford's discussion of testimonial statements of an
unavailable declarant is consistent with the Williams
requirement that in order to be permitted to testify an expert
12
No. 2009AP3073-CR
must form an independent opinion when the expert's opinion is
based in part on tests performed by another analyst.10 See
Williams, 253 Wis. 2d 99, ¶¶19, 25. This Williams' requirement
prevents a Crawford violation of the Confrontation Clause
because out-of-court statements are not admitted as evidence,
but rather, they are replaced by independent opinions based both
on data collected by others and on the expert's own analysis.
¶26 Subsequent to the Supreme Court's decision in
Crawford, the court of appeals applied Williams. Barton, 289
Wis. 2d 206, ¶¶9, 20. In Barton, the court of appeals'
discussion focused on whether a unit leader at the state crime
laboratory could testify based in part on tests performed by
another analyst. The unit leader at the state crime laboratory
testified about chemical tests performed by an analyst who was
unavailable at trial. Id., ¶4. The expert witness conducted
peer review of the analyst's tests and testified as to his
independent expert opinion. Id., ¶¶4, 16. The State did not
seek to admit the laboratory report that detailed the analyst's
test results. Id., ¶4.
10
The instant case does not present the same issues as
Crawford as the testimonial statements of an unavailable
declarant were not admitted into evidence in this case. Cf.
Crawford v. Washington, 541 U.S. 36, 40 (2004). Stated
otherwise, because neither Kalscheur's report nor the report's
conclusion was admitted into evidence, the Crawford holding is
not at issue.
13
No. 2009AP3073-CR
¶27 The court of appeals applied Williams and held the
testimony did not violate Barton's right of confrontation.11
Id., ¶¶9-13, 16, 20. The court concluded that the expert
witness was a highly qualified expert who presented his
independent opinion. Id., ¶13. The court noted that the
witness held a supervisory position, had an academic background
in the area, and had significant experience with the crime
laboratory, all of which were similar to the expert in Williams.
Id. The witness testified that he had reviewed the case file,
including the gas chromatography tests, as a formal peer review.
He explained the uniform procedures employed by the crime
laboratory for the tests at issue. He said that based in part
on his review of the case file, the analyst had followed the
required procedures in the tests. Id., ¶14. The court
concluded that the expert's testimony was an independent opinion
based on his own experience and his own analysis of the testing.
Id., ¶¶14-16. The court of appeals held that under Williams,
the witness's testimony did not violate Barton's right of
confrontation and was admissible. Id., ¶16.
11
The court of appeals also referred to cases decided after
Crawford from other jurisdictions, holding similar testimony did
not violate the Confrontation Clause. State v. Barton, 2006 WI
App 18, ¶¶21-22, 289 Wis. 2d 206, 709 N.W.2d 93 (citing State v.
Delaney, 613 S.E.2d 699, 700 (N.C. Ct. App. 2005); People v.
Thomas, 30 Cal. Rptr. 3d 582, 587 (Cal. Ct. App. 2005),
abrogated by People v. Archuleta, 170 Cal. Rptr. 3d 361 (Cal.
Ct. App. 2014)).
14
No. 2009AP3073-CR
¶28 The court of appeals also clarified the effect of
Crawford on Williams: "The holding in Crawford does not
undermine our supreme court's decision in Williams. Williams is
clear: A defendant's confrontation right is satisfied if a
qualified expert testifies as to his or her independent opinion,
even if the opinion is based in part on the work of another."
Id., ¶20.
¶29 In Melendez-Diaz, the United States Supreme Court
again took up the admissibility of forensic reports created by a
non-testifying laboratory analyst. At issue was whether
affidavits reporting forensic analyses were testimonial,
"rendering the affiants 'witnesses' subject to the defendant's
right of confrontation under the Sixth Amendment." Melendez-
Diaz, 557 U.S. at 307. Those affidavits showed a substance
connected to the defendant was cocaine, and were created
specifically to serve as evidence at a criminal trial. Id. at
324. The Supreme Court held that the forensic laboratory
reports were testimonial statements subject to the Confrontation
Clause, and therefore, defendants have a right to confront the
authoring analyst at trial. Id. at 311. The Court recognized
that Melendez-Diaz falls within the Crawford line of cases:
"This case involves little more than the application of our
holding in Crawford v. Washington . . . . The Sixth Amendment
does not permit the prosecution to prove its case via ex parte
out-of-court affidavits." Id. at 329. Melendez-Diaz's holding
regarding the testimonial nature of laboratory reports does not
alter our conclusion in Williams that a defendant's right to
15
No. 2009AP3073-CR
confront witnesses against him is not violated when a testifying
expert reviews the case file and comes to an independent
conclusion, even though the expert's opinion is based in part on
tests performed by another analyst.12 See Williams, 253 Wis. 2d
99, ¶¶19, 25.
¶30 In its 2011 decision in Bullcoming, the United States
Supreme Court next revisited the Confrontation Clause's
applicability to forensic laboratory reports. At Bullcoming's
trial on charges of driving while intoxicated, the trial court
admitted a forensic laboratory report certifying that
Bullcoming's BAC was above the BAC threshold for driving under
the influence. Bullcoming, 131 S. Ct. at 2709. The analyst who
certified the laboratory report did not testify. Instead, the
prosecution called a different analyst as a witness. Id. The
witness was familiar with the laboratory's testing procedures,
but did not participate in, observe, or review the testing of
the defendant's blood sample. Id. at 2709, 2712. The Court
focused on whether the prosecution could admit a laboratory
12
Likewise, Griep's contention does not present the same
issues as Melendez-Diaz because the non-testifying analyst's
written report and other records were not admitted into
evidence. See United States v. Turner, 709 F.3d 1187, 1190 (7th
Cir. 2013) (concluding that a case involving testimony based in
part on another analyst's forensic tests did not present a
Melendez-Diaz problem). Therefore, whether the laboratory
report here was created specifically to serve as evidence in a
criminal proceeding, or introduced to prove the truth of the
matter asserted, is not relevant to our review. See Melendez-
Diaz v. Massachusetts, 557 U.S. 305, 309 (2009) (introducing
drug analysis report to prove substance was cocaine).
16
No. 2009AP3073-CR
report containing a testimonial certification through the in-
court testimony of a witness that did not certify the report or
perform or observe the test that was the subject of the report.
Id. at 2710. The Court held that admission of the report
violated the defendant's right of confrontation and reiterated
the rule in Crawford. Id. at 2713.
Our answer is in line with controlling precedent: As
a rule, if an out-of-court statement is testimonial in
nature, it may not be introduced against the accused
at trial unless the witness who made the statement is
unavailable and the accused has had a prior
opportunity to confront that witness.
Id.
¶31 The Supreme Court's discussion in Bullcoming differs
from the section of our Williams decision that is relevant to
Griep's contention of a Confrontation Clause violation. In
Bullcoming, the prosecution admitted the forensic report as a
business record in violation of the Confrontation Clause. Id.
at 2712. Williams also concludes that the forensic report
cannot properly be admitted as a business record. Williams, 253
Wis. 2d 99, ¶49. However, in Williams, the expert witness
reviewed the work of the testing analyst, was familiar with the
procedures at hand, and rendered an independent opinion. Id.,
¶¶21-22. The testimony in Bullcoming is not the independent
opinion of an expert. See Bullcoming, 131 S. Ct. at 2712, 2716
(stating that the witness did not review the test results and
prosecution never asserted that the witness had an independent
opinion concerning the defendant's BAC). Therefore, when an
expert witness reviews data yielded by laboratory tests and
17
No. 2009AP3073-CR
reaches his or her own independent opinion based on that data
and his or her own knowledge, Williams applies and Bullcoming
provides no guidance.
¶32 Justice Sotomayor emphasized the limited reach of
Bullcoming in her concurrence. Id. at 2722 (Sotomayor, J.,
concurring). She wrote separately to highlight her view that
the laboratory report was testimonial because its primary
purpose was evidentiary, but she also wrote "to emphasize the
limited reach of the Court's opinion." Id. at 2719. Justice
Sotomayor distinguished Bullcoming from other cases where the
trial witness "is a supervisor, reviewer, or someone else with a
personal, albeit limited, connection to the scientific test at
issue." Id. at 2722. She also distinguished cases where the
expert witness was asked for and gave an independent opinion
about underlying testimonial reports that were not admitted into
evidence. Id. She noted that in Bullcoming, the prosecution
acknowledged that the witness offered no opinion about the BAC.
Justice Sotomayor concluded: "We would face a different
question if asked to determine the constitutionality of allowing
an expert witness to discuss others' testimonial statements if
the testimonial statements were not themselves admitted as
evidence." Id. Justice Sotomayor's concurrence reinforces our
conclusion that Bullcoming does not guide our decision when the
issue is the independent opinion of an expert witness who has
reviewed the forensic test results, rather than the
admissibility of an underlying forensic report.
18
No. 2009AP3073-CR
¶33 The Supreme Court provided guidance on when out-of-
court testimonial statements are admissible, when statements are
testimonial, and under what circumstances testimonial laboratory
reports are admissible in Crawford, Melendez-Diaz, and
Bullcoming. Crawford, 541 U.S. at 59; Melendez-Diaz, 557 U.S.
at 311; Bullcoming, 131 S. Ct. at 2713. Wisconsin cases,
Williams and Barton, go a step further and address situations
where the State does not offer the laboratory report into
evidence, but instead offers the independent opinion of an
analyst who did not perform the tests. Williams, 253 Wis. 2d
99, ¶20; Barton, 289 Wis. 2d 206, ¶16. Stated otherwise,
federal Confrontation Clause opinions predating Williams v.
Illinois do not affect our rule in Williams, or the court of
appeals' application in Barton. We now examine whether Williams
v. Illinois affects Williams and Barton.
¶34 Williams v. Illinois, the Supreme Court's most recent
Confrontation Clause opinion that examines presentation of
expert opinion, involved Williams' bench trial for rape. There,
the prosecutor called a forensic specialist at the Illinois
State Police laboratory who testified that according to the
police laboratory's business records, the victim's vaginal swabs
were sent to Cellmark, an outside, accredited laboratory.
Williams v. Illinois, 132 S. Ct. at 2229. Cellmark returned the
swabs to the police laboratory, and set out a male DNA profile
derived from the semen on the swabs. Id. Upon receipt of the
report and profile, a police laboratory analyst conducted a
search of the Illinois State DNA database, revealing that
19
No. 2009AP3073-CR
Williams' DNA matched the DNA profile obtained from the swabs
processed by Cellmark. Id. The police laboratory analyst
testified about standard procedures, about Cellmark's
accreditation, and that her comparison of the DNA profiles on
the Illinois database with the Cellmark profile resulted in a
match. Id. at 2229-30. The Cellmark DNA profile was not
admitted into evidence. Id. at 2230. The defendant objected to
the expert's testimony on Confrontation Clause grounds. Id. at
2231. The trial court ruled against Williams. Id.
¶35 Williams v. Illinois is a plurality opinion with
Justice Thomas concurring in judgment.13 Id. at 2227. A
plurality of the Supreme Court held the expert's testimony did
not violate Williams' right of confrontation. However, the
Court's four-one-four division "left no clear guidance about how
exactly an expert must phrase [his] testimony [that concerns]
the results of testing performed by another analyst in order for
the [expert's] testimony to be admissible." United States v.
Maxwell, 724 F.3d 724, 727 (7th Cir. 2013); see also Williams v.
Illinois, 132 S. Ct. at 2277 (Kagan, J., dissenting); id. at
2255 (Thomas, J., concurring in the result, but with no portion
of the plurality's reasoning).
¶36 In determining what effect a plurality opinion has on
our review, we apply Marks v. United States, 430 U.S. 188, 193
13
Justice Breyer also wrote a concurrence in Williams v.
Illinois, but in contrast to Justice Thomas, he joined the
plurality's opinion in full. See Williams v. Illinois, 132
S. Ct. at 2244–45, 2252 (Breyer, J., concurring).
20
No. 2009AP3073-CR
(1977). Deadwiller, 350 Wis. 2d 138, ¶30; see also Vincent v.
Voight, 2000 WI 93, ¶46 n.18, 236 Wis. 2d 588, 614 N.W.2d 388;
Lounge Mgmt., Ltd. v. Town of Trenton, 219 Wis. 2d 13, 21-22,
580 N.W.2d 156 (1998). "When a fragmented [Supreme] Court
decides a case and no single rationale explaining the result
enjoys the assent of five Justices, the holding of the Court may
be viewed as that position taken by those Members who concurred
in the judgments on the narrowest grounds." Marks, 430 U.S. at
193 (internal quotations and citations omitted). The Marks
narrowest grounds rule is applicable only when one opinion is
narrower than the other or is a logical subset of another,
broader opinion. Deadwiller, 350 Wis. 2d 138, ¶30 (citing Evan
H. Caminker, Precedent and Prediction: The Forward-Looking
Aspects of Inferior Court Decisionmaking, 73 Tex. L. Rev. 1, 33
n.120 (1994)); King v. Palmer, 950 F.2d 771, 781 (D.C. Cir.
1991). If no "theoretical overlap" exists between the
rationales of the plurality and the concurrence, it is binding
only as to its "specific result." Deadwiller, 350 Wis. 2d 138,
¶30 (citing Berwind Corp. v. Comm'r of Soc. Sec., 307 F.3d 222,
234 (3d Cir. 2002)).14 A plurality opinion without overlapping
14
See also Ass'n of Bituminous Contractors, Inc. v. Apfel,
156 F.3d 1246, 1254-55 (D.C. Cir. 1998) (agreeing that when
Marks does not apply for lack of a "narrowest opinion," the only
binding aspect of a particular fractured opinion was its
specific result); Shenango Inc. v. Apfel, 307 F.3d 174, 185 (3d
Cir. 2002) (stating that the only binding aspect of a fragmented
decision without a narrower ground is the specific result); Lair
v. Bullock, 697 F.3d 1200, 1205 (9th Cir. 2012) (stating that if
no opinion of the Court is narrow, the splintered decision is
binding only as to its specific result); Gibson v. Am. Cyanamid
(continued)
21
No. 2009AP3073-CR
rationales requires a specific result only when the parties are
in a "substantially identical position." Id.
¶37 Williams v. Illinois does not contain a "narrowest
opinion." Williams v. Illinois, 132 S. Ct. at 2228, 2244-45
(Breyer, J., concurring), 2255 (Thomas, J., concurring);
Deadwiller, 350 Wis. 2d 138, ¶32. Five justices of the United
States Supreme Court concluded in Williams v. Illinois that, in
certain circumstances, the Confrontation Clause does not bar an
expert witness from basing his or her testimony on a forensic
laboratory report prepared by another analyst when the defendant
was never given an opportunity to cross-examine the analyst who
prepared the report or conducted the forensic testing. Williams
v. Illinois, 132 S. Ct. at 2228. However, no opinion gathered a
majority of the Court. Id. at 2244, 2252 (Breyer, J.,
concurring), 2261 (Thomas, J., concurring). The four justices
of the plurality concluded that the testimony did not violate
the Confrontation Clause because the report was not used to
prove the truth of the matter asserted and its primary purpose
was not to accuse a targeted individual of a crime. Id. at
2243. While a fifth justice agreed with the disposition of the
case, he concluded that the report was non-testimonial because
Co., 760 F.3d 600, 615, 619-20 (7th Cir. 2014) (acknowledging a
fractured opinion produced only its specific result as binding
precedent because no opinion was narrowest); State v. Michaels,
95 A.3d 648, 665-66 (N.J. 2014) (citing Deadwiller and noting
that the Marks approach works only when the narrowest opinion
represents a common denominator and when no overlap exists, a
fragmented decision is binding only as to its specific result).
22
No. 2009AP3073-CR
it "lacked the requisite 'formality and solemnity' to be
considered 'testimonial.'"15 Id. at 2255 (Thomas, J.,
concurring). Four justices rejected both the plurality's
primary purpose test and Justice Thomas' solemnity-based test
and instead concluded that the expert testimony was
"functionally identical to the 'surrogate testimony'" in
Bullcoming and that Bullcoming controlled the outcome.16 Id. at
2267 (Kagan, J., dissenting). As no opinion overlaps with
another, the Marks narrowest grounds rule does not apply to
Williams v. Illinois. Marks, 430 U.S. at 193; Deadwiller, 350
Wis. 2d 138, ¶30; King, 950 F.2d at 781.
¶38 Therefore, Williams v. Illinois is binding only as to
its "specific result." Deadwiller, 350 Wis. 2d 138, ¶30 (citing
Berwind Corp., 307 F.3d at 234). A plurality opinion without a
narrowest grounds concurrence requires a specific result when
15
Justice Thomas' concurrence in Williams v. Illinois also
explicitly rejected the plurality's "flawed analysis" and
asserted that "there was no plausible reason for the
introduction of Cellmark's statements other than to establish
their truth." Williams v. Illinois, 132 S. Ct. at 2255-56
(Thomas, J., concurring).
16
Under Marks, the positions of the justices who dissented
from the judgment are not counted in examining the divided
opinions for holdings. Marks v. United States, 430 U.S. 188,
193 (1977). Rather, Marks instructs that the holding is the
narrowest position "taken by those Members who concurred in the
judgment[]." Id. (internal quotation marks and citation
omitted). Therefore, Marks rejects any contention that the
holding of Williams v. Illinois is Justice Thomas' and the
dissent's rejection of the plurality's not-for-the-truth
rationale. Cf. Leading Cases, 126 Harv. L. Rev. 266, 276 (Nov.
2012).
23
No. 2009AP3073-CR
the parties are in a substantially identical position. Berwind,
307 F.3d at 234. Griep is not in a substantially identical
position to the parties in Williams v. Illinois. The difference
between Griep's circumstances and those in Williams v. Illinois
is illustrated by our recent opinion in Deadwiller.
¶39 Deadwiller is our sole Confrontation Clause case since
Williams v. Illinois. In Deadwiller, the defendant was
identified as a suspect in a sexual assault through a DNA
profile derived at an out-of-state laboratory from the victim's
vaginal and cervical swabs, which matched Deadwiller's profile
in Wisconsin's DNA database. Deadwiller, 350 Wis. 2d 138, ¶5.
We considered application of the Marks narrowest ground
principle to Williams v. Illinois, but concluded that no
Williams v. Illinois concurring opinion fit the narrowest
grounds rule. Id., ¶¶30-32. We recognized that Williams v.
Illinois would still be binding as to its specific result when
the parties are in a substantially identical position. Id., ¶30
(citing Berwind, 307 F.3d at 234). We compared the facts of
each case and concluded that Deadwiller and Williams were in
substantially identical positions, and therefore we were bound
by the specific result in Williams v. Illinois. Id., ¶32. In
concluding we were so bound, we noted similarities in the cases.
Id.
In both cases, the victim reported the crime and
underwent a sexual assault examination, which produced
vaginal swabs containing DNA of the perpetrator. In
both cases, police officers picked up the evidence,
inventoried the evidence, and sent the evidence to the
state crime lab, which then sent the evidence to an
24
No. 2009AP3073-CR
out-of-state laboratory for DNA testing. Further, the
out-of-state laboratory in both cases sent back the
genetic material and a DNA profile of the perpetrator
produced from the vaginal swabs. In both cases, state
crime lab analysts entered the DNA profile into a DNA
database, which resulted in a match to the defendant.
When called to testify, the state crime lab analyst in
both cases reported that the DNA profile sent by the
out-of-state lab matched the DNA profile resulting
from the database. The DNA profile was not introduced
into evidence in either case. Prosecutors in both
cases introduced inventory reports, evidence receipts,
and testimony to prove a chain of custody, i.e. that
the DNA profile was produced from swabs taken from the
victims.
Id.
¶40 Deadwiller concludes the lines of relevant state and
federal Confrontation Clause cases. In review, Williams and
Barton establish that an expert witness does not violate the
Confrontation Clause when his or her opinion is based in part on
data created by a non-testifying analyst if the witness "was not
merely a conduit." Williams, 253 Wis. 2d 99, ¶¶20, 25; accord
Barton, 289 Wis. 2d 206, ¶¶13-14. In other words, if the expert
witness reviewed data created by the non-testifying analyst and
formed an independent opinion, the expert's testimony does not
violate the Confrontation Clause. Williams, 253 Wis. 2d 99,
¶20; Barton, 289 Wis. 2d 206, ¶¶13-14. No federal decision
addresses this type of expert testimony. In Crawford, admission
of testimonial statements of an unavailable declarant violated
the Confrontation Clause if the declarant was unavailable and
the defendant had no prior opportunity to cross-examine.
Crawford, 541 U.S. at 59. Melendez-Diaz applied Crawford to
conclude that testimonial statements made in a forensic report
25
No. 2009AP3073-CR
that was admitted into evidence, but was created by a non-
testifying analyst, violated the Confrontation Clause.
Melendez-Diaz, 557 U.S. at 311. The facts of Bullcoming go one
step further, involving both the admission of a testimonial
forensic report and testimony of an expert witness who did not
conduct the tests or offer an independent opinion. Bullcoming,
131 S. Ct. at 2712, 2716. However, Crawford, Melendez-Diaz, and
Bullcoming do not address a situation where a non-testifying
analyst's testimonial statements do not come into evidence,
i.e., where the testimonial forensic report is not admitted and
the expert witness who testifies at trial gives his or her
independent opinion after review of laboratory data created
another analyst. Stated otherwise, when a non-testifying
analyst documents the original tests "with sufficient detail for
another expert to understand, interpret, and evaluate the
results," that expert's testimony does not violate the
Confrontation Clause. David H. Kaye, David E. Bernstein, &
Jennifer L. Mnookin, The New Wigmore: Expert Evidence,
§ 4.10.2, pp. 204-05 (2d ed. 2010); accord Williams, 253 Wis. 2d
99, ¶20; Barton, 289 Wis. 2d 206, ¶¶13-14. Williams v. Illinois
has not altered Confrontation Clause jurisprudence, which we
confirmed in Deadwiller. See Deadwiller, 350 Wis. 2d 138, ¶30.
2. Griep's circumstances
¶41 In the case now before us, we compare the parties'
positions in Griep to that of the parties' positions in Williams
v. Illinois and conclude that they are not in substantially
identical positions. First, this is not a sexual assault case.
26
No. 2009AP3073-CR
Cf. Williams v. Illinois, 132 S. Ct. at 2229. Here, analysts
used a laboratory test, gas chromatography, to determine Griep's
BAC, which differs from the creation of a DNA profile and the
process of matching DNA profiles that was used in Williams v.
Illinois. Cf. id. Second, the analyst conducted all of the
laboratory work here in the same laboratory that employed the
expert witness, rather than utilizing work provided by an
outside laboratory. Cf. id. at 2229-30. The only similarity
between this case and Williams v. Illinois is that the
prosecution did not introduce the forensic reports into evidence
in either case. Id. at 2230.
¶42 We conclude Griep is not in a substantially identical
position to Williams. Therefore, the specific result of
Williams v. Illinois is not binding in this case as it was in
Deadwiller. Cf. Deadwiller, 350 Wis. 2d 138, ¶32. For that
reason, we need not further discuss the various rationales of
Williams v. Illinois as we did in Deadwiller. See id., ¶¶33-36.
¶43 Aside from its discussion of the Williams v. Illinois
rationales, Deadwiller also provides our only post-Williams v.
Illinois analysis of Williams and Barton. Id., ¶¶37-40. We
concluded that Williams and Barton are consistent with our
application of the specific result of Williams v. Illinois.
Id., ¶37. We applied Williams and Barton to the facts in
Deadwiller and determined that the expert witness reviewed the
out-of-state laboratory's procedures and offered his independent
conclusion, and therefore did not violate the defendant's right
of confrontation. Id., ¶40.
27
 No. 2009AP3073-CR
¶44 As we tacitly recognized in Deadwiller, nothing in
Williams v. Illinois affects our decision in Williams and its
application by the court of appeals in Barton.17 See id., ¶¶37-
40. In addition, Williams v. Illinois is not otherwise useful
to our analysis here because Marks does not apply18 and Griep is
not in a substantially identical position to the convicted
perpetrator.19 As Williams v. Illinois does not affect our
conclusion in Williams or the court of appeals' application in
Barton, our remaining task is to apply Williams and Barton to
this case.
C. Admission of Patrick Harding's Testimony
¶45 We rely on pre-Williams v. Illinois opinions, as well
as our only Confrontation Clause decision after Williams v.
Illinois, Deadwiller, to determine whether the State's witness,
Patrick Harding, testified in violation of Griep's right of
17
Other courts have also held Williams v. Illinois is
"confined to the particular set of facts presented in that
case." United States v. James, 712 F.3d 79, 95 (2d Cir. 2013)
(applying pre-Williams v. Illinois opinions); accord Jenkins v.
United States, 75 A.3d 174, 189 (D.C. Cir. 2013) (agreeing
Williams v. Illinois is confined to its facts and applying pre-
Williams v. Illinois opinions in the Supreme Court and its own
jurisdiction).
18
Marks does not apply when no concurring opinion is
narrower than the others. See Marks, 430 U.S. at 193; State v.
Deadwiller, 2013 WI 75, ¶30, 350 Wis. 2d 138, 834 N.W.2d 362;
King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991).
19
Cf. Deadwiller, 350 Wis. 2d 138, ¶32 (concluding
Deadwiller was in a substantially identical position in a case
with different facts).
28
No. 2009AP3073-CR
confrontation.20 Harding served as the State's expert witness
for Griep's BAC and testified in place of Kalscheur, who was not
available at the time of trial. While Harding was not an
official peer reviewer of Kalscheur's forensic tests, Harding
testified that he examined the data "available the day after the
analysis for the person that reviewed the report when it went
out." His review included chromatograms and results of the
entire analytical run that Kalscheur conducted, which described
the calibration checks that were used to assess whether the
machine was performing properly and whether the test was run
correctly.21
¶46 Harding testified that all indications were that
Kalscheur followed the laboratory procedures, and the instrument
was working properly. Harding testified that the machine's
proper function was evident from the results of calibration
20
However, we note that Crawford, Melendez-Diaz, and
Bullcoming are not helpful to our analysis because they focus on
when out-of-court testimonial statements may be entered into
evidence and what statements are testimonial. Crawford, 541
U.S. at 59; Melendez-Diaz, 557 U.S. at 311; Bullcoming, 131
S. Ct. at 2713. As our focus here is on the witness's in-court
testimony, Crawford, Melendez-Diaz, and Bullcoming do not guide
our analysis.
21
It is significant that the laboratory file included not
only Kalscheur's report but also raw data, gas chromatograms.
This provided "adequate detail for an expert to do his own
analysis and reach his own conclusions." See Kaye, et al.,
supra note 9, p. 201. In this case, "the expert is exercising a
degree of independent judgment using his own substantive
expertise rather than relying entirely on the expertise of
others." Id. at p. 202; accord Williams, 253 Wis. 2d 99, ¶20;
Barton, 289 Wis. 2d 206, ¶¶13-14.
29
No. 2009AP3073-CR
checks run throughout the course of the tests. Harding said,
"[t]he calibration checks that are analyzed throughout the
course of the analytical run read correctly, specifically and
importantly, the two known samples that bracketed Mr. Griep's
sample read within their accepted range." Harding opined that
correctly running the sample through the testing instrument
resulted in a reliable blood alcohol reading. Harding also
opined that after reviewing the data, he came to an independent
opinion that Griep's BAC was 0.152.22 And finally, it was
Harding's opinion that laboratory procedures required notation
of any irregularities with the sample, and there had been no
such notation by the analyst.
¶47 Consistent with Williams and Barton, the pre-Williams
v. Illinois law of this jurisdiction, Harding's testimony did
not violate Griep's right of confrontation; accordingly, his
testimony was properly admitted.23 Our Confrontation Clause
jurisprudence begins with Williams. Williams set out a two-part
framework to analyze the testimony of an expert witness, relying
22
That Harding arrived at and testified to the same
conclusion as Kalscheur's report, that Griep's BAC was 0.152,
does not require us to conclude that Harding's testimony
introduced Kalscheur's report. Harding's review of Griep's
laboratory file and his opinion formed by interpretation of raw
data using his expertise merely yielded the same independent
opinion reached by Kalscheur.
23
United States Supreme Court opinions prior to Williams v.
Illinois do not assist in our analysis or affect the value of
Williams and Barton, as previously discussed. Additionally,
Williams v. Illinois does not affect the value of those two
cases. See Deadwiller, 350 Wis. 2d 138, ¶¶37-40.
30
No. 2009AP3073-CR
on forensic tests conducted by a non-testifying analyst, for
Confrontation Clause violations. Williams, 253 Wis. 2d 99, ¶26.
Williams provides that expert testimony based in part on tests
conducted by a non-testifying analyst satisfies a defendant's
right of confrontation if the expert witness: (1) reviewed the
analyst's tests, and (2) formed an independent opinion to which
he testified at trial. Id. We address each requirement of
Williams' framework in turn.
1. Review
¶48 In both Williams and Barton, the analyst who conducted
the testing was unavailable to testify at trial. Instead, the
analysts' supervisors testified as expert witnesses about the
independent opinions they formed. Williams, 253 Wis. 2d 99,
¶22; Barton, 289 Wis. 2d 206, ¶15. In both Williams and Barton,
the supervisors conducted reviews in the ordinary course of
laboratory procedures. Williams, 253 Wis. 2d 99, ¶22; see
Barton, 289 Wis. 2d 206, ¶14.
¶49 Peer review generally involves examining the notes
taken and data collected in the case to make sure the
conclusions written in the report are correct. Williams, 253
Wis. 2d 99, ¶22. In Williams, the expert witness testified how
peer review operates when testing for a controlled substance:
she compared the graphical data yielded by the tests and graphs
reflecting standard, known, values. Id., ¶23. The expert's
comparison allowed her to conclude the sample being tested was a
controlled substance. Id. In Barton, an arson case, the expert
used graphical data called chromatograms from different stages
31
No. 2009AP3073-CR
of gasoline evaporation to conclude gasoline was present in
charred wood samples. Barton, 289 Wis. 2d 206, ¶15. The expert
in Barton compared the chromatograms of control samples with
chromatograms of the samples from the arson case, similar to the
expert's comparison in Williams. See id.
¶50 Here, Harding did not conduct a formal peer review of
Kalscheur's tests. Instead, peer review was completed by Thomas
Ecker, an advanced chemist at the laboratory. However, Harding
completed the same examination as occurs in the formal peer
review. Harding examined "[t]he same data that is available the
day after the analysis for the person that reviewed the report
when it went out and that is the chromatograms and the paperwork
associated with the whole analytical run that Diane did on the
30th of August, 2007." In short, Harding reviewed the same data
as the peer reviewer.
¶51 Our decisions indicate that the review necessary to
protect a defendant's right of confrontation need not be formal
peer review. Williams, 253 Wis. 2d 99, ¶20; Deadwiller, 350
Wis. 2d 138, ¶40. In Williams, we reasoned: "the presence and
availability for cross-examination of a highly qualified
witness, who is familiar with the procedures at hand, supervises
or reviews the work of the testing analyst, and renders her own
expert opinion is sufficient to protect a defendant's right to
confrontation." Williams, 253 Wis. 2d 99, ¶20. Similarly, in
Deadwiller, the expert witness's review of the out-of-state
laboratory's DNA profile, procedures, and quality control
32
No. 2009AP3073-CR
measures was sufficient to protect the defendant's right of
confrontation.
¶52 Harding's review of Kalscheur's report, data, and
notes fulfills the Williams review requirement because he
reexamined the data. See Williams, 253 Wis. 2d 99, ¶¶22-23.
Therefore, Harding's review was sufficient to protect Griep's
right of confrontation, when combined with Harding's independent
opinion.
2. Independent opinion
¶53 In both Williams and Barton, the expert witness
offered his or her independent opinion based in part on the data
provided by the non-testifying analyst and the expert witness's
own expertise. See Williams, 253 Wis. 2d 99, ¶¶25-26; Barton,
289 Wis. 2d 206, ¶16. Williams and Barton also discussed the
expert witnesses' qualifications and noted they were qualified
to give an expert opinion based on the information before them.
Williams, 253 Wis. 2d 99, ¶21; Barton, 289 Wis. 2d 206, ¶¶13,
16. We discussed the role of an independent opinion most
thoroughly in Williams, where we stated that "one expert cannot
act as a mere conduit for the opinion of another." Williams,
253 Wis. 2d 99, ¶19. However, we recognized that an expert may
form an independent opinion based in part on the work of others
without acting as a "conduit." Id., ¶25.
¶54 In Williams, the expert witness reviewed the tests
done by another analyst, including the data and notes, and then
formed her own opinion. Id. We concluded that the testifying
expert's opinion was sufficiently independent to protect the
33
No. 2009AP3073-CR
defendant's right of confrontation, and was not a mere
recitation of another analyst's conclusions. Id., ¶¶25-26. In
Barton, the expert offered his opinion based on his review of
the entire file, including data similar to the chromatograms in
this case. Barton, 289 Wis. 2d 206, ¶¶13-14. The court of
appeals concluded the expert's testimony was his independent
opinion. Id., ¶13.
¶55 Here, Harding was qualified to present testimony on
the laboratory procedures and come to an independent opinion
regarding Griep's BAC. To arrive at his conclusion, Harding
relied on his review of data collected by Kalscheur, other
records compiled at the laboratory, and his own expertise.
Pointing to Harding's lack of personal knowledge of Kalscheur's
testing of Griep's blood sample, Griep argues that Harding's
opinion could not have been independent. However, we held in
Williams, and the court of appeals held in Barton, that it was
acceptable that the analyst's report, data, and notes were the
factual bases of the expert witness's opinion, in addition to
the witness's own professional expertise. Williams, 253 Wis. 2d
99, ¶25; Barton, 289 Wis. 2d 206, ¶13. Williams and Barton
conclude that an expert witness need not have personal knowledge
of the forensic tests, as long as the witness's opinion is
reached independently and is not merely a recitation of
another's conclusions. See Williams, 253 Wis. 2d 99, ¶25;
Barton, 289 Wis. 2d 206, ¶¶13, 16. In each case, the expert
witness rendered an independent opinion by reviewing data and
notes from the analyst and the expert testified as to the
34
No. 2009AP3073-CR
general procedures for preparing and testing samples.24
Williams, 253 Wis. 2d 99, ¶25; Barton, 289 Wis. 2d 206, ¶14.
Harding conducted the same type of review and based his opinion
on the same type of records and personal expertise as the expert
witness did in Williams and Barton, and his opinion is similarly
independent.
¶56 Harding reviewed Kalscheur's test results and other
relevant laboratory records and he testified as to his
independent opinion. In accordance with Williams and Barton,
Harding's testimony did not violate Griep's right of
confrontation. Williams, 253 Wis. 2d 99, ¶26; Barton, 289
Wis. 2d 206, ¶20.
III. CONCLUSION
¶57 We conclude that Harding's review of Griep's
laboratory file, including the forensic test results of an
analyst who was unavailable for trial, to form an independent
opinion to which he testified did not violate Griep's right of
confrontation. Williams, 253 Wis. 2d 99, ¶26; Barton, 289
Wis. 2d 206, ¶20. Accordingly, we affirm the court of appeals
24
In Barton, the expert testified as to both the general
laboratory procedures and, after review of the data and notes,
that the analyst seemed to have followed the general procedures.
Barton, 289 Wis. 2d 206, ¶¶13-14. Here, Harding stated that
"all indications are that the procedures were followed, the
instrument was operating properly, properly calibrated." This
statement is within the bounds of an accepted assessment of the
analyst's procedures as in Barton.
35
No. 2009AP3073-CR
decision that affirmed the circuit court's admission of
Harding's testimony.
By the Court.—The decision of the court of appeals is
affirmed.
¶58 DAVID T. PROSSER, J., withdrew from participation.
36
No. 2009AP3073-CR.ssa
¶59 SHIRLEY S. ABRAHAMSON, C.J. (concurring). The
United States Supreme Court has not yet defined the contours of
the limitations imposed by the Confrontation Clause on forensic
evidence and expert testimony. The fractured decisions of the
Court in this field may be an omen of changes to come in
Confrontation Clause jurisprudence.1
¶60 In the meantime, however, federal and state courts
must determine how the Confrontation Clause applies to forensic
evidence and expert testimony.2 At present, federal and state
cases are all over the map in their attempts to apply the
Court's Confrontation Clause decisions.
¶61 As courts develop and apply this evolving body of law,
the "ultimate goal" of the Confrontation Clause must be
remembered: To ensure that the reliability of evidence is
"assessed in a particular manner," namely "by testing in the
1
See, for example, Williams v. Illinois, 132 S. Ct. 2221
(2012), in which four opinions were filed but none received a
majority vote. "The persistent ambiguities in the Court's
approach are symptomatic of a rule not amenable to sensible
applications." Bullcoming v. New Mexico, 131 S. Ct. 2705, 2726
(2011) (Kennedy, J., dissenting). See also People v. Lopez, 286
P.3d 469, 483 (Cal. 2013) (Liu, J., dissenting) ("Given the
array of possible doctrinal approaches left open by Williams,
one can only surmise that the high court will soon weigh in
again.").
2
See State v. Deadwiller, 2013 WI 75, ¶47, 350 Wis. 2d 138,
834 N.W.2d 362 (Abrahamson, C.J., concurring) ("[T]he majority
opinion does not help answer the recurring significant central
constitutional/evidentiary question presented, namely, 'How does
the Confrontation Clause apply to the panoply of crime
laboratory reports and underlying technical statements written
by (or otherwise made by) laboratory technicians?'").
1
No. 2009AP3073-CR.ssa
crucible of cross-examination."3 The majority opinion seems to
lose sight of this goal. I write separately to bring the goal
of the Confrontation Clause back into focus.
¶62 In Crawford v. Washington, 541 U.S. 36, 61 (2004), the
United States Supreme Court declared that the Confrontation
Clause bars the introduction of out-of-court testimonial
statements unless the declarant is unavailable for trial and the
declarant has previously been cross-examined by the defendant.
The application of this fundamental Confrontation Clause
principle in the context of forensic evidence and expert
testimony has been the subject of much debate and litigation in
state and federal courts.
¶63 In Wisconsin, a forensic report regarding a particular
defendant that is created for prosecutorial purposes is
considered an out-of-court testimonial statement.4 It is clear
under Crawford that such a report cannot be introduced into
evidence without testimony from the analyst who prepared it
unless the analyst is unavailable and was previously cross-
examined by the defendant.
¶64 Ambiguity remains regarding the precise circumstances
under which the Confrontation Clause permits the introduction of
substitute expert testimony about forensic test results when the
forensic report itself is not introduced.
3
Crawford v. Washington, 541 U.S. 36, 61 (2004).
4
State v. Williams, 2002 WI 58, ¶¶48-49, 253 Wis. 2d 99,
644 N.W.2d 919.
2
No. 2009AP3073-CR.ssa
¶65 In State v. Williams, 2002 WI 58, 153 Wis. 2d 99, 644
N.W.2d 919, this court established that the Confrontation Clause
does not allow the State to call a surrogate expert to the
witness stand simply to have the expert read or summarize a
forensic report authored by someone else. The court held that
"one expert cannot act as a mere conduit for the opinion of
another" without violating the defendant's constitutional right
to confront the State's witnesses.5
¶66 Similarly, in Bullcoming v. New Mexico, 131 S. Ct.
2705 (2011), in which the certified results of a blood alcohol
test were introduced with testimony from "a scientist who did
not sign the certification or perform or observe the test
reported in the certification," the United States Supreme Court
"bluntly held that such 'surrogate' expert testimony violates
the confrontation right. The accused's right is to confront the
lab analyst who performed the test, unless the state can show
that [the lab analyst] is unavailable and that [the] defendant
had an opportunity pretrial to cross-examine him."6
¶67 In the present case, the State obtained a testimonial
forensic report that concludes the defendant's blood alcohol
content was 0.152 percent. The analyst who prepared the
forensic report was unavailable for trial. The analyst had not,
5
Id., ¶19.
6
7 Daniel D. Blinka, Wisconsin Practice Series: Wisconsin
Evidence § 802.303, at 142 (3d ed., 2014 Pocket Part).
3
No. 2009AP3073-CR.ssa
however, been cross-examined by the defendant previously. Thus,
the forensic report itself could not be introduced.
¶68 The State did not introduce the forensic report.
Instead, the State called Patrick Harding, an employee in the
same laboratory in which the forensic analysis was conducted, as
a substitute expert witness to testify in lieu of the analyst
who prepared the report.
¶69 Harding had no personal connection with the forensic
report at issue. He had not observed the defendant's blood
sample and had not participated in its testing. Harding
nevertheless testified about the subject matter of the forensic
report and testified that in his opinion, the defendant's blood
alcohol content was 0.152 percent.
¶70 The majority opinion distinguishes the instant case
from prior United States Supreme Court cases in which the
Confrontation Clause was held to have been violated on the
ground that the State in the instant case did not introduce an
out-of-court testimonial statement. According to the majority
opinion, although Harding's opinion was based on the analyst's
out-of-court testimonial statement, it nevertheless qualifies as
independent.
¶71 Crawford does not govern the introduction of testimony
based on an out-of-court testimonial statement; it governs the
introduction of the out-of-court testimonial statement itself.
Thus, the majority opinion reasons, there was no Confrontation
Clause violation in the instant case.
4
No. 2009AP3073-CR.ssa
¶72 I disagree with the majority opinion's analysis. It
is a stretch, in my view, to call Harding's opinion independent.
I conclude that Harding served as a conduit for the opinion of
the analyst who performed the forensic testing at issue. In my
opinion, the analyst's out-of-court testimonial statement was
introduced——albeit indirectly——through Harding's testimony.
¶73 Under a strict reading of Crawford, Harding's
testimony violated the defendant's Confrontation Clause rights
because the analyst whose out-of-court testimonial statement
Harding indirectly introduced had not previously been cross-
examined by the defendant. I conclude, however, that such a
narrow reading of Crawford and its progeny improperly ignores
the values underlying the Confrontation Clause and the practical
realities the State and the courts face in cases that rely on
forensic evidence. It also fails to take into account the
reliability of forensic evidence and fails to give proper weight
to the goal of enabling the State to prosecute a crime when a
fair trial is possible.
¶74 In my opinion, courts should search for fair,
practical, and workable evidentiary rules and should not deem
the Confrontation Clause violated whenever the prosecution fails
to call to the witness stand all whose testimony may be relevant
to the accuracy of the forensic testing at issue in a particular
case.
¶75 Keeping the majority, plurality, and minority writings
of the justices of the United States Supreme Court in Crawford
and its progeny in mind, and seeking the best interpretation of
5
No. 2009AP3073-CR.ssa
the law available in light of the authorities binding upon this
court, I conclude that the substitute expert testimony at issue
in the instant case satisfies the Confrontation Clause.
I
¶76 I begin by examining the majority opinion's
determination that Harding testified to an independent opinion
and was not merely a conduit for the opinion of the analyst who
performed the forensic testing at issue.7
¶77 State v. Williams, 2002 WI 58, ¶¶25-26, 253
Wis. 2d 99, 644 N.W.2d 919, held that an expert witness other
than the analyst who performed the forensic testing at issue can
testify to "an independent expert opinion" without violating the
Confrontation Clause, even when that opinion is based in part
"on facts and data gathered by someone else." Whether the
opinion provided by such a substitute expert witness is an
independent one must be determined on a case-by-case basis.
¶78 Independence is a question of degree. Williams does
not reveal the precise degree of independent judgment that must
undergird an expert's opinion for a court to characterize the
opinion as independent for Confrontation Clause purposes.
¶79 It is clear, however, that for purposes of the
Confrontation Clause, a substitute expert witness must do more
than merely recite or summarize the work of another.8
Consequently, the fact that the forensic report itself was not
7
See majority op., ¶¶3, 46-47, 52, 55-57.
8
Williams, 253 Wis. 2d 99, ¶19.
6
No. 2009AP3073-CR.ssa
introduced in the present case is not dispositive. "The
question is not whether [the forensic report] is disclosed in
documentary form, or orally recapitulated by a testifying
expert. Rather, the appropriate question is whether the
substance of the testimonial materials is shared with the fact-
finder to suggest its truth, without the report's author being
available for cross-examination."9
¶80 In the present case, Harding testified that he was
offering an independent opinion. Harding's characterization of
his testimony is not binding on the court and is not supported
by the record.
¶81 Harding stated at trial that he reviewed the analyst's
"report when it went out and that is the chromatograms and the
paperwork associated with the whole analytical run that [the
analyst] did."
¶82 Harding was familiar with the policies and procedures
of the laboratory in which the forensic analysis took place. He
testified that all indications were that standard laboratory
procedures were followed and that the chromatograph machine was
properly calibrated.
¶83 Harding did not, however, have any first-hand
knowledge that the procedures were followed in the present case.
Harding was unable to testify about the handling of the
defendant's blood sample or the steps that preceded the
chromatograph machine's analysis of that sample. Harding had no
9
David H. Kaye et al., The New Wigmore: Expert Evidence,
§ 4.10.2, at 200 (2d ed. 2010).
7
No. 2009AP3073-CR.ssa
knowledge of the labeling or loading of the defendant's blood
sample and had no knowledge of the sample's appearance or odor
upon arrival at the laboratory. Harding made no direct
observations of the sample or its testing. Harding could not
testify about whether there was human error in the process of
testing the defendant's blood sample.
¶84 In sum, Harding was unable to say whether the blood
sample was received intact or whether the blood alcohol content
testing was performed according to protocol. "These are the
kinds of facts that mattered to the Bullcoming Court."10
¶85 Harding's only basis for determining the defendant's
blood alcohol content was the analyst's report and supporting
documentation. Harding did not, and could not, offer any
different or additional analysis beyond that contained in the
forensic report and attached materials. Harding had no greater
connection with the specific forensic testing at issue than any
other qualified forensic analyst from Harding's lab would have
had.
¶86 The documents and information Harding reviewed were
not, in my view, sufficient to enable Harding to independently
"understand, interpret, and evaluate the [forensic test]
results."11 I conclude that for purposes of the Confrontation
Clause, Harding lacked sufficient information to provide an
10
Kaye et al., supra note 9, § 4.12.4, at 69 (Cumulative
Supp. 2015).
11
Kaye et al., supra note 9, § 4.10.2, at 205.
8
No. 2009AP3073-CR.ssa
independent opinion about the defendant's blood alcohol content.
Harding was, in essence, a conduit through which the State
entered another analyst's otherwise inadmissible opinion into
evidence.
¶87 My position that Harding failed to provide an
independent opinion is supported by the United States Supreme
Court's reasoning in Bullcoming v. New Mexico, 131 S. Ct. 2705
(2011), and Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009).
¶88 In Bullcoming, the United States Supreme Court
debunked the notion that an analyst who performs a blood alcohol
content test is a "mere scrivener," cross-examination of whom
serves no legitimate purpose. Bullcoming makes clear that the
analyst who tested the defendant's blood sample has valuable
information about the test results beyond the information set
forth in the materials produced by the gas chromatograph
machine. Thus, the opportunity to cross-examine the analyst is
important.
¶89 The Bullcoming Court explained that "[s]everal steps
are involved in the gas chromatograph process, and human error
can occur at each step."12 According to the Court, the results
produced by the gas chromatograph process are determined in part
by "past events and human actions," which are not "revealed in
12
Bullcoming, 131 S. Ct. at 2711.
9
No. 2009AP3073-CR.ssa
raw, machine-produced data," and which constitute "me[a]t for
cross-examination."13
¶90 In other words, according to the Bullcoming Court, an
analyst's testifying and submitting to cross-examination at
trial are not hollow formalities. The Court recognized that a
substitute expert witness cannot convey all that the analyst who
performed the forensic testing knows or observed and cannot
expose any lapses on the analyst's part.14 Thus, the analyst
should be subject to confrontation even "if all analysts always
possessed the scientific acumen of Mme. Curie and the veracity
of Mother Theresa."15
¶91 Similarly, Melendez-Diaz stresses that a substitute
expert witness who testifies based solely on the results of the
gas chromatograph process will have little to no knowledge of
the past events and human actions that helped determine those
results. As a result, cross-examination of the substitute
expert witness cannot effectively uncover mistakes or misconduct
by the analyst, which can render the results of the gas
chromatograph process unreliable.
¶92 In Melendez-Diaz, the Court acknowledged that
"[f]orensic evidence is not uniquely immune from the risk of
13
Id. at 2714. By contrast, the dissent in Bullcoming
emphasized the mechanical nature of the gas chromatograph. See
Bullcoming, 131 S. Ct. at 2724 (Kennedy, J., dissenting).
14
Bullcoming, 131 S. Ct. at 2715-16.
15
Melendez-Diaz, 557 U.S. 305, 319 n.6 (2009). See also
Bullcoming, 131 S. Ct. at 2715.
10
No. 2009AP3073-CR.ssa
manipulation."16 Mistake or misconduct can influence forensic
test results.17 "A forensic analyst responding to a request from
a law enforcement official may feel pressure——or have an
incentive——to alter the evidence in a manner favorable to the
prosecution."18
¶93 Harding appears to have recognized the dangers posed
by admitting his testimony in lieu of testimony by the analyst
who performed the forensic testing in question. On cross-
examination, defense counsel asked Harding whether the analyst
who tested the defendant's blood sample could have tampered with
the sample had she "had a mind to do it." Harding responded:
"[I]f an analyst wanted to do something nefarious, sure, that's
correct, that could happen." Defense counsel then asked whether
an analyst's tampering with a blood sample "could possibly
escape your detection when you review the written reports and
materials." Harding replied: "Sure."
¶94 This colloquy demonstrates the inherent limits to what
an expert can know about gas chromatography testing performed by
someone else. Because of these limits, a substitute expert
witness can do little more than summarize the work and parrot
16
Melendez-Diaz, 557 U.S. at 318.
17
Indeed, according to an amicus brief submitted in the
instant case by the Innocence Network, "[u]nvalidated or
improper forensic science is a leading cause of wrongful
convictions, playing a role in the cases of almost half of the
321 wrongfully convicted people in the United States who have
been exonerated by DNA testing."
18
Melendez-Diaz, 557 U.S. at 318.
11
No. 2009AP3073-CR.ssa
the findings of the analyst who performed the testing. Harding
was no different; he summarized the work and parroted the
findings of the analyst who performed the forensic testing at
issue.
¶95 In sum, a careful reading of case law and of Harding's
testimony reveals that Harding was unable to testify about the
gas chromatograph process at issue other than by relying on, and
disclosing the substance of, materials generated by another
analyst's use of the gas chromatograph machine.
¶96 The State called Harding as a witness in order to
introduce the otherwise inadmissible conclusion of a testimonial
forensic report prepared by someone else. Harding could not
provide insight into the testing process other than by
disclosing the substance of the report itself. Under the
circumstances of the present case, Harding did not provide an
independent opinion. The values underlying the Confrontation
Clause would be better protected by testimony from, and cross-
examination of, the analyst who prepared the report.
II
¶97 In my view, a defendant's Confrontation Clause rights
must be balanced against the practical reality that cross-
examining the forensic analyst who performed the testing at
issue will not always be possible or necessary. Courts should
not——and need not under current United States Supreme Court
precedent——exclude forensic evidence that has indicia of
reliability when the analyst who performed the testing is
unavailable but a substitute expert witness is available to
12
No. 2009AP3073-CR.ssa
provide useful and significant information about that evidence
and to submit to cross-examination.19
¶98 Thus, although I conclude that Harding's testimony
indirectly introduced an out-of-court testimonial statement made
by an unavailable analyst who had not previously been cross-
examined, and although I conclude that the Confrontation Clause
would be better protected by testimony from, and cross-
examination of, the analyst who conducted the forensic testing
at issue, my analysis does not end there.
¶99 As Justice Kennedy's dissent in Bullcoming explains,
the United States Supreme Court lacks the experience and
familiarity with state trial processes necessary to make it
well-suited for the role of a national tribunal for rules of
evidence.20 Accordingly, this court should contribute to the
development of evidentiary rules that pay heed to the
constitutional and practical concerns of state courts, the
State, and defendants. The instant case presents the court with
the opportunity to do just that.
¶100 When an analyst becomes unavailable without first
submitting to cross-examination by the subject of the analyst's
forensic testing, what happens to the results produced by that
19
"Thus, when there is both unavailability and a meaningful
but imperfect substitute for contemporaneous cross-examination,
the Constitution, according to Crawford, does not require
wholesale exclusion. . . . [N]ecessity ought to permit a
second-best solution." Kaye et al., supra note 9, § 4.12.2, at
66-67 (Cumulative Supp. 2015).
20
Bullcoming, 131 S. Ct. at 2727 (Kennedy, J. dissenting).
13
No. 2009AP3073-CR.ssa
testing? If Crawford imposes a rigid, wholesale ban on non-
independent substitute expert testimony about forensic test
results when an unavailable forensic analyst has not previously
been cross-examined, how could the results be introduced? In
short, they could not.
¶101 It seems to me, however, that Crawford does not
dictate such rigidity. I reach this conclusion based on
Crawford itself (which recognizes that the opportunity to cross-
examine a witness at trial is not always possible or necessary21)
and on Crawford's progeny.
¶102 The separate writings issued in Bullcoming are
particularly instructive.
¶103 Justice Sotomayor's concurrence in Bullcoming makes
clear that the Court "would face a different question [than
faced in Bullcoming and prior cases] if asked to determine the
constitutionality of allowing an expert witness to discuss
others' testimonial statements if the testimonial statements
21
Under Crawford, a prior opportunity to cross-examine an
unavailable witness provides a constitutionally adequate
alternative to cross-examination of the witness at trial.
14
No. 2009AP3073-CR.ssa
were not themselves admitted as evidence."22 That is the very
question presented in the instant case.23
¶104 Justice Sotomayor emphasized that Bullcoming should be
read narrowly. Justice Sotomayor wrote that Bullcoming and
prior cases would not control future cases in which "the person
testifying is a supervisor, reviewer, or someone else with a
personal, albeit limited, connection to the scientific test at
issue."24
¶105 Justice Sotomayor did not explain the level of
involvement a substitute witness must have with the "scientific
test at issue" to render the witness's testimony permissible
under the Confrontation Clause. However, the implication of
Justice Sotomayor's Bullcoming concurrence is that if a
substitute expert witness testifies who has even a limited
connection to the testing at issue, there might not be any
Confrontation Clause violation:
[In Bullcoming, the analyst] conceded on cross-
examination that he played no role in producing the
22
Bullcoming, 131 S. Ct. at 2722 (Sotomayor, J.,
concurring).
23
Justice Sotomayor discusses Federal Rule of Evidence 703,
explaining that facts and data upon which experts in a given
field would reasonably rely in forming an opinion need not be
admissible in order for an expert opinion based on such facts
and data to be admitted. There is, however, an argument to be
made that despite Rule 703, evidence that is excluded from trial
on constitutional grounds ought not to be permitted to serve as
part of the basis for an expert's conclusion. See Kaye et al.,
supra note 9, § 4.5, at 158.
24
Bullcoming, 131 S. Ct. at 2722 (Sotomayor, J.,
concurring).
15
No. 2009AP3073-CR.ssa
BAC report and did not observe any portion . . . of
the testing. . . . It would be a different case if,
for example, a supervisor who observed an analyst
conducting a test testified about the result or a
report about such results. We need not address what
degree of involvement is sufficient because here [the
analyst] had no involvement whatsoever in the relevant
teat and report.25
¶106 The four dissenting justices in Bullcoming objected to
the Bullcoming majority's extension of Melendez-Diaz. According
to the dissenters, Melendez-Diaz does not prohibit the
introduction of a testimonial forensic report when a
knowledgeable representative of a laboratory is "present to
testify and to explain the lab's processes and the details of
the report."26 Nor, in the dissenters' view, does the
Confrontation Clause.
¶107 The dissent reasons that a blood alcohol content
analysis "is mechanically performed by the gas chromatograph,
which may operate . . . after all the laboratory employees leave
for the day."27 Under these circumstances, the dissent
concludes, the introduction of a forensic report along with the
testimony of a knowledgeable laboratory representative who is
available for cross-examination is "fully consistent with the
Confrontation Clause and with well-established principles for
ensuring that criminal trials are conducted in full accord with
25
Id.
26
Id. at 2723 (Kennedy, J., dissenting).
27
Id. at 2724 (Kennedy, J., dissenting).
16
No. 2009AP3073-CR.ssa
requirements of fairness and reliability and with the
confrontation guarantee."28
¶108 Keeping these and other post-Crawford writings of the
justices of the United States Supreme Court in mind, and seeking
the best interpretation of the law available in light of the
authorities binding upon this court, I conclude that the
substitute expert testimony at issue in the instant case
satisfies the Confrontation Clause.
¶109 More specifically, I conclude that in the instant
case, cross-examination of a substitute expert witness who fails
to provide an independent opinion constitutes a permissible
alternative to cross-examination of the analyst who performed
the forensic testing at issue when the following conditions are
met:
1. The analyst is unavailable for cross-examination,
through no fault of the parties;
2. Re-testing is not possible;
3. The analyst recorded the forensic test results at
or near the time of testing in the course of a
regularly conducted activity and would be unlikely to
have an independent memory of the test performed
(because, for example, the analyst processed many such
tests within a short period);
28
Id. at 2723 (Kennedy, J., dissenting).
17
No. 2009AP3073-CR.ssa
4. The analyst recorded the results in a way that
another expert in the field could understand and
interpret; and
5. The substitute expert witness is qualified to
discuss and interpret the original results and is
subject to cross-examination.
¶110 Because these conditions appear to have been met in
the present case, I conclude that Harding's substitute expert
testimony fulfills the minimum requirements of the Confrontation
Clause. Thus, like the majority opinion, I would allow it.
¶111 I note, finally, that in determining that Harding's
testimony is permissible under the Confrontation Clause, I am
cognizant of "the fundamental doctrinal dilemma" underlying the
relationship between the Confrontation Clause and forensic
evidence:
[T]here is a fundamental mismatch between the
Confrontation Clause's focus on the individual
testifying expert and the nature of scientific
knowledge production, which is, more often than not, a
collective rather than an individual enterprise.
Science often depends on a certain degree of epistemic
deference to the conclusions and findings of
others . . . and scientists are often engaged in
"distributed cognition" in which [] the knowledge
relevant to a [particular] question . . . stretches
across a network of humans and machines. . . . [W]hen
a witness uses only a modicum of independent judgment
to evaluate and opine on tests done by others, this
problem of distributed knowledge and the Confrontation
Clause rears its head.29
¶112 For the reasons set forth, I write separately.
29
Kaye et al., supra note 9, § 4.12.11, at 100 (Cumulative
Supp. 2015) (footnotes omitted).
18
No. 2009AP3073-CR.ssa
¶113 I am authorized to state that Justice ANN WALSH
BRADLEY joins this opinion.
19
No. 2009AP3073-CR.ssa
1