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BENCH BLOG: Crawford issue case shines light on expert reports

Jean DiMotto is a retired Milwaukee County Circuit Court judge. She served for 16 years, and was on the criminal bench for 12 of those years.

Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also serves of counsel with Nistler Law Firm. She can be reached at

The Court of Appeals recently decided a Crawford issue in a murder trial. In so doing, it emphasized the importance of bringing in needed experts to testify.

The defendant in State v. VanDyke was charged with reckless homicide by delivery of heroin. The case was tried by jury before Winnebago County Circuit Judge Thomas Gritton.

To prove the cause of death was a heroin overdose, the state called the chief medical examiner for Fond du Lac County, Douglas Kelly. Kelly performed the autopsy and then sent the toxicology samples to St. Louis University for analysis.

Medical examiner’s testimony

Kelly testified about three abnormal findings culled from his autopsy. First, there was a puncture wound on each of the victim’s arms. One had a piece of tape over it, and Kelly linked that to medical intervention. He noted that an IV catheter set had accompanied the body in the transport bag.

As for the other puncture wound, Kelly couldn’t “really say one way or the other” whether it resulted from medical intervention or intravenous drug use.

The internal examination of the body revealed pulmonary edema, a “non-specific condition” in which air sacs in the lungs are filled with water. He testified that the condition can result from “a lot of different things,” including drug toxicity. “It can also be found in heart failure and things of that nature.”

Lastly, he found that the victim’s brain was a bit swollen, meaning it had been deprived of oxygen. There were no other traumatic injuries.

The defense counsel noted that the autopsy was completed on April 14 but the report was dated May 17. Kelly explained, “If I don’t find a cause of death, I’ll write my findings down and let the coroner know about that … but in this case, since there was no cause of death, the toxicology specimens were sent out and we awaited the results before going forward. …”

Toxicology results

Relying on the report from St. Louis University, Kelly testified that there was a high level of morphine in the victim’s blood and a heroin metabolite in his urine. These two results led him to conclude that the cause of death was heroin toxicity.

No one from St. Louis University was produced as a witness, and VanDyke was convicted.

He later moved for post-conviction relief, arguing his attorney had been ineffective for failing to object to the introduction of the toxicology report. Gritton denied the motion, and VanDyke appealed.

Court of appeals analysis

The appellate court came down with a unanimous decision. The ruling, attributed to Deputy Chief Judge Michael Hoover, analyzed whether the defense counsel’s failure to object to the introduction of the toxicology report violated VanDyke’s right to confrontation, provided by the Sixth Amendment and the Wisconsin Constitution.

The fundamental constitutional protection at the heart of this case is the state’s obligation to ensure witnesses who provide testimony in court are subject to cross-examination. Likewise, out-of-court statements that constitute testimonial must be subjected to confrontation.

Crawford’s categories of testimonial statements include “extrajudicial statements contained in formalized testimonial materials.” Both federal and state case law have determined that a laboratory’s test certification falls within this testimonial category.

Thus, the St. Louis University laboratory report on the victim’s test results was testimonial. Consequently, it was error for the state not to present a witness from the laboratory to testify about the tests.

The state, however, cited State v. Heine, a published heroin-overdose case in which the toxicologist was not called to testify — an omission that was later determined to have been the result of harmless error. Judge Hoover scrutinized the differences in the ways the medical examiners’ testimony was treated in the two cases.

In Heine, the medical examiner used autopsy results independent of a toxicology report to determine that a heroin overdose had been the cause of a death. The examiner had read the toxicology report but did not rely on it in formulating his opinion.

In the VanDyke case, on the other hand, Kelly needed the toxicology report to form his opinion on the cause of death. Because he was unable to offer a cause-of-death opinion without it, his testimony was a conduit for the toxicologist’s report.

Although “experts may rely on inadmissible evidence, the confrontation clause prohibits an expert from acting as a mere conduit for the testimony of another.”

Accordingly, the court concluded that VanDyke’s attorney was deficient in failing to object to the introduction of the report without being able to confront someone from the St. Louis University laboratory. The error, the court decided, prejudiced the defense.

The judgment of conviction was therefore reversed and the case remanded.


This opinion brings home the danger of using an expert’s report rather than presenting the expert as a witness.

While Crawford’s formulation of testimonial categories can seem abstruse, this opinion showcases an easy way to think of the fundamental consideration: one expert cannot be a conduit for another’s opinions and data.

Here, the medical examiner was allowed to funnel crucial test results from the out-of-state laboratory into the trial while depriving VanDyke of his right to confront the laboratory expert.

This was a costly error for the prosecution. While it may have seemed expensive to fly in an expert witness from Missouri, it would have been far less expensive than retrying the case and putting the victim’s family through the ordeal of seeing a homicide conviction vacated.

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