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Practitioners weigh in on ruling on admissibility of toxicology reports

By: Erika Strebel, [email protected]//February 20, 2017//

Practitioners weigh in on ruling on admissibility of toxicology reports

By: Erika Strebel, [email protected]//February 20, 2017//

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Even though a Wisconsin Supreme Court ruling from last week resolved conflicting case law governing the admissibility of certain toxicology reports, criminal-law practitioners say it did little to answer questions over testimonial hearsay.

In 2004, the U.S. Supreme Court held in the case of Crawford v. Washington that out-of-court testimonial hearsay brings up special constitutional questions. In particular, the court found this sort of hearsay runs afoul of the Sixth Amendment’s Confrontation Clause if defendants are not given an opportunity for cross-examination.

Initially, though, the court offered no clear way to determine exactly what constitutes testimonial hearsay. Only later did it shed some light on the matter by relying in part on the “primary-purpose test,” which was first elucidated in the case of Davis v. Washington from 2006.

Yet plenty of questions still need answering, said Robert Donohoo, Milwaukee County pro bono assistant district attorney.

“The definition does it no good because it’s a definition, but you have to interpret it,” he said.  “You have to find a case that’s directly on point.”

The Wisconsin Supreme Court’s ruling last week in State v. Mattox has provided little help, Donohoo said. In that case, the justices decided to let a toxicology report stand after finding its primary purpose was not to create an out-of-court substitute for trial testimony. Instead, the court ruled, the report was meant to help determine a victim’s cause of death. In reaching that conclusion, the justices pointed to the case of Ohio v. Clark, from 2015.

Julius Kim, a long-time defense lawyer who practices at Kim & LaVoy in Brookfield, agreed with Donohoo that the State v. Mattox ruling cleared up very little. Kim said the decision dealt only with the facts in a specific situation and is thus unlikely to have wide-ranging implications.

The biggest result will be that toxicology reports prepared out of state at the request of a medical examiner can now be admitted to court without the need for the toxicologist who prepared the report to testify at trial or submit to cross-examination.

The legal question that was cleared up by the decision, Donohoo said, is one that few prosecutors encounter. It comes up only when a medical examiner has to request a toxicology report from an out-of-state laboratory, he said. In the Mattox case, the lab in question was in St. Louis. That distant location would have made it expensive to bring in the toxicologist who had prepared the report.

“This is nice,” said Donohoo. “For the tox report, we don’t have to fight. But it’s never been a problem in Milwaukee County.”

Such unresolved ambiguity is one of the obstacles criminal-defense lawyers face when challenging out-of-court testimonial hearsay, said Kim.

“There hasn’t been any clear guidance from the U.S. Supreme Court as to what test should be applied to various situations, and it might be the case that different tests may apply to different situations,” Kim said. “What we’re seeing is the continuing fallout from the Crawford decision. Different factual situations are making their way through the court system as people try to figure out how Crawford applies to different situations, and it may be years before any clear precedent is set.”

Donohoo said the best part of the court’s decision in State v. Mattox is that it provides a comprehensive overview of the state of the law regarding testimonial hearsay.

“If anybody wants to get a quick primer on the law of Crawford and testimonial hearsay, this is it,” he said. “It’s a great summary of the law.”

But even though the holding in Mattox might be narrow, Kim cautioned that similar decisions could slowly erode the rights the Confrontation Clause’s protections for defendants.

“Cross examination has been referred to as the greatest engine invented for the discovery of the truth,” he said. “Decisions like Mattox, that chip away at the requirement that actual people come into court and tell us how things happened, make defense lawyers’ jobs more difficult because it’s kind of hard to cross examine a piece of paper.”

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