State v. Michael R. Griep

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