Apparently these judges in Wisconsin  believe through a circuitous logic that crime lab results are not available for cross-examination. Sometimes. They approved a pathologist to talk about a tox result at a hearing about cause of death.

As is usually seen in case law ‘changing,’ the 5-2 majority split hairs by distinguishing this tox result from previous federal case law by saying…….

“the majority opinion concluded that those decisions do not control here “because the lab report and its evidentiary use in Mattox’s [local case] case bear no resemblance to the reports or their use in Melendez-Diaz or Bullcoming.” [federal case law]

The majority noted that the forensic lab reports were requested by police for a criminal prosecution and were “affidavit-like or certified – providing the functional equivalent of trial testimony – significantly, about an element of the crime in each case.”

In this case, however, the biological samples were taken to determine the cause of death. They were not sent for testing as part of a criminal investigation against Mattox.”

That effectively does a few things:

• Cause-of-death findings are not ‘criminal .’ That flies in the face of coroner investigations, inquests and maybe preliminary hearings.
• Non-criminal forensic testing is not subject to cross-examination.
• Makes forensic ‘testing’ unavailable for defense counsel.
• Takes the pressure off crime labbers who have to run over to the court house all the time.

Article from the WI Bar Newsletter