State v. Brewer: Toxicology Report is Testimonial and Hearsay
In State v. Brewer, decided today, the SC Supreme Court reversed a homicide by child abuse conviction because the trial court allowed the government to introduce a toxicology report from an out-of-state laboratory through a local pathologist who did not conduct the tests.
After the US Supreme Court’s decisions in Melendez-Diaz (2009) and Bullcoming (2011), this issue seemed simple enough – government reports or test results that are used to prove a crime are testimonial, the author of the report must testify, and the author of the report must be subject to cross-examination…
It turns out there is still some confusion, though, and state courts have decided many cases finding that various types of reports and records either are or are not testimonial and subject to Crawford.
What did the SC Supreme Court say about toxicology test results in Brewer, and which types of reports are considered testimonial in SC?
Hearsay Testimony About Toxicology Results Violate the Confrontation Clause and Crawford v. Washington
Hearsay testimony is inadmissible in court for two reasons. First, because the rules of evidence prohibit it, and, second, because it is a violation of the Confrontation Clause – a criminal defendant has the right to “confront” the witnesses against him or her in the “crucible of cross-examination,” and you can’t cross-examine an absent witness.
If an out-of-court statement is considered hearsay under the rules of evidence, it may still be admissible if there is a valid exception under Rule 803 or Rule 804 (business records, excited utterances, or statements against interest, for example).
Even if the out-of-court statement would qualify as a hearsay exception under the rules, however, it may still be inadmissible if the statement is “testimonial in nature,” because it may still violate the Confrontation Clause.
For example, the rules of evidence may permit an expert witness to testify about another expert’s report (an out-of-court statement) if the testifying expert relied on that report in forming their opinion, but admission of the non-testifying expert’s conclusions is still a Confrontation Clause violation in the context of a criminal case where the conclusions help the government to get a conviction…
In Brewer, the government’s pathologist relied on toxicology test results from an out-of-state lab for the cause of death and the quantity of oxycodone that was found in a deceased infant – the very things the state needed to prove to convict Brewer of homicide by child abuse. The testifying pathologist took care to tell the jurors that the lab he used “offered the best product he could purchase,” was “trustworthy,” and was “the preeminent lab in the country,” but Brewer did not have the opportunity to cross-examine the lab about their supposed preeminence or their test results.
The SC Supreme Court held that using the lab’s out-of-court statement (the toxicology report) when the author of the report was not present to testify and the test results involved a key fact at issue in the case violated Brewer’s Sixth Amendment right to confront the witnesses against her.
When are Reports or Other Documents Testimonial?
Brewer’s result should apply to any government report, including toxicology reports, when they are introduced as part of the government’s case, in any criminal prosecution.
Many of the common types of government reports or test results have been covered in appellate opinions at this point – most fall within Crawford’s protections, but some do not.
- Crawford v. Washington, 541 U.S. 36 (2004) – testimonial out-of-court statements to law enforcement are not admissible unless the witness is available to testify.
- Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310-11 (2009) – the state cannot rely on affidavits or reports from non-testifying forensic analysts to prove that a substance seized by law enforcement is cocaine.
- Bullcoming v. New Mexico, 564 U.S. 647, 671–72 (2011) – a lab report indicating a person’s blood alcohol content (BAC) is testimonial, subject to a Crawford analysis, and is not admissible under the business records exception to the hearsay rules.
- Williams v. Illinois, 567 U.S. 50, 56 (2012) – in a split decision with no majority opinion, the US Supreme Court confused everyone by allowing testimony about a DNA report where the report’s author was not present to testify.
- State v. Brockmeyer, 406 S.C. 324, 340, 751 S.E.2d 645, 653 (2013) – statements contained in a computerized chain-of-custody log are not testimonial because their primary purpose is not to provide evidence in a criminal trial.
The out-of-court statements at issue in Brewer also included the cause of death, and the SC Supreme Court noted that most courts nationwide have determined that, when autopsies are legally required to investigate a death, their primary purpose is for a criminal investigation, and therefore they are testimonial (and subject to the Confrontation Clause):
See State v. Frazier, 735 S.E.2d 727, 731 (W.Va. 2012) (“The next logical question is whether Dr. Belding’s autopsy report was prepared to establish or prove past events potentially relevant to later criminal prosecutions and, therefore, meets the primary purpose test. The answer to this is an unqualified yes.”); Cuesta-Rodriguez v. State, 241 P.3d 214, 228 (Okla. 2010) (finding that an autopsy report in a suspicious death was testimonial where state law mandated an autopsy be performed and noting that it was “obvious” that a medical examiner would reasonably understand that any statements in that report could be used in a later criminal prosecution); State v. Locklear, 363 N.C. 438, 452, 681 S.E.2d 293, 305 (N.C. 2009) (holding the Confrontation Clause barred the state from introducing evidence of forensic analysis from a pathologist and dentist who did not testify); but see Ackerman v. State, 51 N.E.3d 171, 189 (Ind. 2016) (concluding that an autopsy report was not testimonial).
Because the toxicology results testified to in Brewer 1) included cause of death (akin to an autopsy report) and toxicology results (similar to Melendez-Diaz and Bullcoming), 2) were critical to proving the state’s case, and 3) the author of the report was not present or subject to cross-examination, the admission of the out-of-court statements violated the Confrontation Clause.
Criminal Defense Lawyers in Charleston, SC
Grant B. Smaldone is a criminal defense lawyer based in Charleston, SC whose law practice is focused on state and federal criminal cases in SC including preliminary hearings in SC state court.
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