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High court clears up Confrontation Clause conflict

The Wisconsin Supreme Court has ruled that the Sixth Amendment’s Confrontation Clause is not violated when certain toxicology reports are admitted at trial without either testimony from the authors or a cross-examination.

The justices on Tuesday resolved conflicting decisions from the state appeals court. Justices Ann Walsh Bradley and Shirley Abrahamson dissented.

The justices’ decision came in the case of Rozerick Mattox, a Milwaukee man who was charged in 2013 with causing the death of Samuel Lueck, a Waukesha man who died of a heroin overdose.

At a bench trial, Mattox objected to the prosecutor’s asking the medical examiner who performed Leuck’s autopsy about a toxicology report that had been produced as part of the procedure. He contended the report was inadmissible on the grounds that it violated his right to confrontation.

Waukesha County Circuit Court Judge Jennifer Dorow overruled Mattox’s objection, finding the report was admissible as a basis for testimony. She also found it had not been admitted for its truth or to prove an element of the alleged crime.

Mattox was later convicted of first-degree reckless homicide for delivering heroin. He appealed his conviction in 2015, arguing that the report was inadmissible under the Confrontation Clause because the analyst who produced it had not testified and was not available for cross-examination.

The District 2 Court of Appeals certified the case to the Wisconsin Supreme Court. The lower court’s goal was to resolve whether the admission of the toxicology report violated the Confrontation Clause. The court noted that it had issued decisions in 2014 and 2015 that conflicted with each other and conflicted with decisions of the state Supreme Court and U.S. Supreme Court.

The Wisconsin Supreme Court on Tuesday affirmed Dorow’s decision to let the toxicology report stand because it was not “testimonial” under a test set forth by the U.S. Supreme Court in the case of Ohio v. Clark, which dates to 2015. Under that test, if a statement’s primary purpose is to create an out-of-court substitute for trial testimony, its admission implicates the Confrontation Clause.

However, in Mattox’s case, the majority found that the primary purpose of the toxicology report was to help the medical examiner discover the cause of Lueck’s death.

The justices noted that the report was not created to be admitted into evidence. They noted that, among other things, law enforcement did not request the report to be created. Nor did the report give an opinion about Lueck’s cause of death or the elements of the crime Mattox had been accused of.

The justices also noted that, according to the record, the analyst who prepared the report had no knowledge that it was related to a crime.

About Erika Strebel, erika.strebel@wislawjournal.com

Erika Strebel is the law beat reporter for the Wisconsin Law Journal and a law school student at UW-Madison. She can be reached at 414-225-1825.

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