Are toxicology results in an autopsy report subject to confrontation objections?

The autopsy reports we received from Dallas contain toxicology results of the victim. The testing is done by a toxicologist. In the past, the Medical Examiner has testified to both the autopsy and the toxicoloty results. Since the toxicology results are performed by the toxicologist on substances sent to him by the M.E., can the M.E. testify to the results or are the results subject to a Crawford confrontation objection which requires calling the toxicologist as well? The M.E. is most likely not present when the toxicology is run and quantified.

Setting aside hearsay for the moment, you would first need to establish the admissibility of the results under Rule 700 standards (reliability and relevance). Unlikely that the ME can serve as an expert who can explain the manner in which those tests were run and the reliability of the system used to run the tests. The ME simply is incorporating the results into his overall opinion on cause of death (as he is permitted to do as an expert on cause of death).

So, a defendant doesn't even need to reach Crawford to object to such testimony. He can object that the Rules under 700 haven't been followed.

Assuming the ME is sufficiently knowledgeable to be an expert on such testing, there would still be the problem of the ME not having personal knowledge of the actual testing. Presumably, he could review the records of the testing and come to an independent conclusion that the tests were properly run and reliable. But, he would need sufficient records to do that and not just rely on the sheet showing the results.

Even that is dicey. There are some cases indicating that a nontesting expert can establish the reliability of a testing experts results, but SCOTUS has not yet given a green light on that approach. The upcoming update to the Predicate Questions Manual notes this issue and encourages caution in this area.

Best practice, given that it is a homicide case, is to have the person who did the testing come prove it up. Or, get an affidavit from that person and force the defense to make a pretrial objection, warning you that you need to bring them in.

I'm not an attorney, but I am a forensic toxicologist. The problem you are likely to run into if the toxicology consists of more than perhaps a BAC, is that there will likely be several analysts/toxicologists that performed the actual testing. In the wake of Melendez-Diaz, I don't know what kind of problem that may present.

Look at Long v. State, No. 11-07-00319-CR, 2009 Tex. App. LEXIS 6577 (Eastland 8/20/09). Toxicology report of victim violated Crawford. Before Melendez-Diaz 11th CoA held it was admissible, but after Melendez-Diaz came out (about the same time opinion issued) they withdrew their opinion and re-issued the opinion stating a violation of confrontation.

The Dallas MEs (and SWIFS) traditionally qualified as records custodians for all of SWIFS and were thus able to sponsor items within their report--generated by others at SWIFS--as business records as against a hearsay objection.See Caw v. State, 851 S.W.2d 322 (Tex. App.--El Paso), pet. ref'd, 864 S.W.2d 546 (Tex. Crim. App. 1993). Post Melendez-Diaz, caution would dictate that you file a certificate of analysis from the toxicology analyst and/or route them for trial. See Cuadros-Fernandez v. State, 2009 WL 2647890 (Tex. App.--Dallas 2009, no pet.)(reversing where DNA analysts report admitted through another scientist who worked at SWIFS, citing Mendez-Diaz).