On Point: j. "Testimonial" Evidence

Steven D. Lisle, Jr., v. Guy Pierce, 7th Circuit Court of Appeals No. 14-3047, 2016 WL 4245489, 8/11/16

Lisle sought federal habeas relief from his murder and aggravated battery convictions, arguing that his Sixth Amendment right to confrontation was violated by the admission of a hearsay statement identifying him as the man who shot two people, one fatally. But the state courts reasonably applied clearly established federal law on the question, so his quest for relief is denied.

On review of a court of appeals certification; case activity (including briefs)

Issue (from certification):

Does it violate a defendant’s rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution for the State to introduce at trial a toxicology report identifying certain drugs in a deceased victim’s system and/or testimony of a medical examiner basing his/her cause-of-death opinion in part on the information set forth in such a report, if the author of the report does not testify and is not otherwise made available for examination by the defendant?

State v. Rozerick E. Mattox, 2015AP158; District 2, 2/10/2016, certification granted 4/7/16, conviction affirmed, 2017 WI 9, ; case activity (including briefs)

Issue:

Does it violate a defendant’s rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution for the State to introduce at trial a toxicology report identifying certain drugs in a deceased victim’s system and/or testimony of a medical examiner basing his/her cause-of-death opinion in part on the information set forth in such a report, if the author of the report does not testify and is not otherwise made available for examination by the defendant?

State v. Shironski A. Hunter, 2014AP2521-CR, District 1, 9/15/15 (not recommended for publication); case activity (including briefs)

The trial court didn’t err in admitting statements witnesses made during a 911 call and to police at the scene of the crime because the statements were excited utterances. Moreover, the statements weren’t testimonial for Confrontation Clause purposes, so admitting them didn’t violate the defendant’s right to confront the witnesses against him.

Ohio v. Darius Clark, USSC No. 13-1352, 2015 WL 2473372 (June 18, 2015), reversing State v. Clark, 999 N.E.2d 592 ((Ohio 2013); Scotusblog page (including links to briefs and commentary)

A unanimous Supreme Court holds that statements a child made to his teachers about who was physically abusing him were not “testimonial” for purposes of the Confrontation Clause. The Court agrees that the Confrontation Clause may apply (at least in the abstract) to statements made to someone other than a law enforcement officer; however, a majority of the Court says that, in general, statements made to someone who is not a law enforcement officer “are much less likely to be testimonial than statements made to law enforcement officers” and, with regard to children in particular, “[s]tatements made by very young children will rarely, if ever, implicate the Confrontation Clause.” The decision is therefore likely to lead to a more restrictive application of the Confrontation Clause jurisprudence adopted in Crawford v. Washington, 541 U.S. 36 (2004), and thus more frequent admission of out-of-court statements of witnesses.

State v. Jason S. VanDyke, 2015 WI App 30; case activity (including briefs)

In this prosecution for reckless homicide by delivery of heroin, VanDyke’s right to confrontation was violated where the medical examiner relied on the toxicology report of an out-of-state drug testing lab to conclude the victim had died of a heroin overdose, the toxicology report was admitted into evidence as part of the autopsy report, but no witness from the lab was called to testify about the toxicology testing.

State v. Albert Lorenzo Finch, Sr., 2014AP744-CR, District 1, 10/7/14 (1-judge; ineligible for publication); case activity

Dodging an issue that has not been addressed in Wisconsin, the court of appeals assumes that even if the admission of the recording of a 911 call violated Finch’s right to confrontation the error was harmless because there was ample other evidence supporting the verdict.

Questions presented:

1. Does an individual’s obligation to report suspected child abuse make that individual an agent of law enforcement for purposes of the Confrontation Clause?

2. Do a child’s out-of-court statements to a teacher in response to the teacher’s concerns about potential child abuse qualify as “testimonial” statements subject to the Confrontation Clause?

Court of appeals certification; case activity

Issue certified:

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 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?

On review of published decision; case activity

Confrontation — bases of expert opinion as “testimonial” hearsay

Issue (Composed by On Point)

When a State Crime Lab technician concludes there is a DNA match between defendant and assailant based in part on a report of a DNA profile prepared by an outside lab, is the outside lab report “testimonial” for Confrontation Clause purposes, thus requiring the outside lab technician who prepared the report to testify?