Higley: Tales of The Dead

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Tales of the Dead: Why Autopsy Reports Should Be Classified as Testimonial Statements Under the Confrontation Clause
ANDREW HIGLEY
ABSTRACT
An autopsy report can be the most relevant piece of evidence in homicide trials. Preparers of autopsy reports are no different than typical eyewitness at the scene of the crime. A pathologists specialized knowledge sees things in the dead body that others cannot, revealing such key elements as cause and manner of death. The dead body is therefore like the victims last dying tale, which the pathologist translates into the autopsy report. Though the United States Supreme Court has held that other forensic reports are testimonial statements under the Sixth Amendments Confrontation Clause, requiring the preparer of such reports to be available for cross-examination, the Court has been silent on autopsy reports. Federal circuit and state supreme courts are split on this issue. This Note will argue that the Court should hear the issue and hold that autopsy reports are testimonial statements because they are a part of the core class of testimonial statements and their primary purpose is to establish a fact at trial. The original pathologist who conducted the autopsy and prepared the report must testify unless a surrogate pathologist testifies from a basis independent of the conclusions contained in the report. Also, when a testifying surrogate pathologist relies on an autopsy report but the report itself is not submitted into evidence, that testimony should still be prohibited under the Confrontation Clause. Rigorous constitutional scrutiny of such reports would greatly protect the liberty of the accused.
Candidate for Juris Doctor, New England Law| Boston 2014; B.A., Political Science and History, University of Vermont 2011. I would like to thank all my family and friends for your continuous support. I sincerely could not have made it this far without any of you.
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INTRODUCTION
A dead body is extremely eloquent and honestly informative if one listens to the tales it tells.1
n May 30, 1993, Reynaldo Orlelas approached Arnoldo Navarette and leaned into the drivers side window of Navarettes car, attempting to settle a long-running dispute.2 Shots were fired from inside the car in which Arnoldo Navarette sat in the passenger seat, killing Reynaldo and badly injuring Reynaldo s brother Daniel, who had accompanied him.3 Navarette, the passenger, was charged with first-degree murder and his key defense was that the person sitting in the drivers seat was the real shooter.4 To rebut this defense, the State offered testimony of a forensic pathologist who relayed the conclusions of the original pathologist who had actually conducted the autopsy and prepared the report.5 The pathologist testified that the shots could not have come from the driver s seat because there was no evidence of soot or stippling on Reynaldos body or clothing, which would have indicated a shot at close range. 6 The prosecution admitted neither the report nor the testimony of the original pathologist into evidence, and Navarrette was convicted. 7 In many of the most vigorously contested homicide trials throughout the country, the autopsy report is the most vital piece of evidence. 8 As the facts of Navarette demonstrate, preparers of autopsy reports are no different than crime scene investigators at the scene of the crime. 9 A pathologist, having specialized knowledge, notices things about the dead body that others cannot, revealing such key elements as cause, mechanism, and manner of death. 10 This, in turn, makes the live, in-court testimony of the pathologist, or Medical Examiner (ME), essential to the reliability of the findings, as the report forms the basis of the pathologist s expert
Joseph Pugliese, Super Visum Corporis: Visuality, Race, Narrativity and the Body of Forensic Pathology, 14 LAW & LITERATURE 367, 384 (2002) (quoting LESTER ADELSON, THE PATHOLOGY OF HOMICIDE 13 (1974)).
2 Petition for Writ of Certiorari at 23, State v. Navarette, 294 P.3d 435 (N.M. 2013) (No. 121256), 2013 WL 1718063 at *23. 3 4 1
State v. Navarette, 294 P.3d 435, 436 (N.M. 2013). Id. 5 Id. 6 Id. at 437. 7 Id. at 43637. 8 107 AM. JUR. Trials 413, 1 (2013). 9 See Navarette, 294 P.3d at 44243. 10 D.P. LYLE, M.D., ABA FUNDAMENTALS: FORENSIC SCIENCE 48 (2012).
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opinion.11 Therefore, there is a greater need that pathologists conclusions be tested by effective cross-examination as mandated by the Sixth Amendments Confrontation Clause.12 Over the last decade, the United States Supreme Court has dramatically re-crafted the Sixth Amendments Confrontation Clause jurisprudence and has left a labyrinth of new case law in its wake. 13 In Crawford v. Washington, the Court abandoned the indicia of reliability test for a new test barring testimonial statements from being offered without opportunity for cross-examination.14 In subsequent cases, the Court articulated the primary purpose test to determine whether statements made in the course of a police investigation are testimonial. 15 In MelendezDiaz v. Massachusetts, the Court held for the first time that forensic reports could be testimonialin that case, a drug lab report.16 Extending that holding, the Court held in Bullcoming v. New Mexico that the lab technician who conducted the test and wrote the report must testify; thus, the surrogate lab technician did not satisfy the Confrontation Clause. 17 Finally, in Williams v. Illinois, a fractured majority held that a surrogate lab technician could testify, but no single rationale held a majority.18 Applying this rapidly evolving case law, lower federal and state courts are split on whether autopsy reports are subject to the Confrontation Clause, which would constitutionally require the pathologist who prepared the report to testify at trial about his or her findings.19 This Note will argue that, in light of the Supreme Courts recent Confrontation Clause case law, autopsy reports embody the core aspects of a testimonial statement.20 First, they fall within the core class of testimonial statements
See infra text accompanying notes 4044. U.S. CONST. amend. VI. Cf. 40 AM. JUR. Trials 501, 4 (2013) [hereinafter Trials II] ([A]n effective cross-examination of that physician can often win the case for the defense.). 13 See infra Part II. 14 Crawford v. Washington, 541 U.S. 36, 6869 (2004). 15 See Davis v. Washington, 547 U.S. 813, 81314 (2006). 16 Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 (2009). 17 Bullcoming v. New Mexico, 131 S. Ct. 2705, 2710 (2011). 18 Williams v. Illinois, 132 S. Ct. 2221, 2228 (2012). 19 Compare United States v. Ignasiak, 667 F.3d 1217, 123031 (11th Cir. 2012) (holding that autopsy reports are testimonial), and State v. Kennedy, 735 S.E.2d 905, 917 (W. Va. 2012) (holding that autopsy reports are testimonial), with People v. Dungo, 286 P.3d 442, 449 (Cal. 2012) (holding that autopsy reports are not testimonial), and People v. Leach, 980 N.E.2d 570, 590 (Ill. 2012) (holding that autopsy reports are not testimonial).
12 20 Contra Carolyn Zabrycki, Comment, Toward a Definition of Testimonial: How Autopsy Reports Do Not Embody the Qualities of a Testimonial Statement, 96 CALIF. L. REV. 1093, 1094 (2008) (arguing that autopsy reports are not testimonial because they are not prepared by adversarial
11
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contemplated by the Supreme Court in Crawford and Melendez-Diaz.21 Second, the primary purpose of autopsy reports in most cases is to establish a fact relevant for trial, thus satisfying the Supreme Court s primary purpose test.22 This Note further examines the connected problem of a pathologist testifying about conclusions contained in an autopsy report prepared by another where the report itself is not offered into evidence.23 In light of Williams and its recent state court interpretations, this Note argues that this type of testimony is still a Confrontation Clause violation because the testimonys practical effect is that it is being offered for its truth, not merely to gauge the credibility of the expert s testimony.24 Part I of this Note will provide an overview of autopsy reports in terms of what they are, who prepares them, and how are they used at trial. Part II provides an overview of the Supreme Courts Confrontation Clause jurisprudence, focusing on Crawford and major subsequent cases, including the Supreme Courts 2012 decision in Williams. Part III addresses how lower federal and state courts have split on this issue, with particular emphasis on the most recent cases that discuss the primary purpose test and application of Williams. Part IV argues that autopsy reports are part of the core class of testimonial statements, as they fit within the rationales of Crawford and Melendez-Diaz, and alternatively that they satisfy the primary purpose test. Part V argues that when the surrogate pathologist provides an independent opinion that does not merely rely on conclusions contained in the autopsy report, there is no Confrontation Clause violation. Finally, Part VI argues that courts should not admit otherwise inadmissible hearsay through the not-for-truth expert testimony exception because it functionally violates the Confrontation Clause. I. Autopsy Reports and the Trial Process A. The Autopsy Report An autopsy simply refers to the post-mortem examination of a dead
government officials). See infra Part IV.A; see Crawford v. Washington, 541 U.S. 36, 5152 (2004); Thomas F. Burke III, The Test Results Said What? The Post-Crawford Admissibility of Hearsay Forensic Evidence, 53 S.D. L. REV. 1, 1820 (2008). 22 See infra Part IV.B; Bullcoming, 131 S. Ct. at 2714 n.6 (To rank as testimonial, a statement must have a primary purpose of establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution.) (alteration in original) (quo ting Davis v. Washington, 547 U.S. 813, 822 (2006)).
23 24 21
See infra Part VI. See infra Part VI.
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body, or the examination of the dead.25 A pathologist typically conducts an autopsy of a dead body.26 For purposes of criminal investigations, it is important to note the difference between a clinical and a forensic pathologist: a clinical pathologist examines dead bodies to study diseases for medical purposes, while a forensic pathologist is concerned primarily with finding the cause or manner of death for legal purposes. 27 Forensic pathologists conduct medicolegal autopsies, or examinations where a person dies young, unexpectedly, or under suspicious circumstances.28 The word forensic is defined as belonging to the courts of justice or to public debate and discussion. 29 For purposes of a trial, the forensic pathologist may shed light on issues such as cause of death, mechanism of death, manner of death, or time of death.30 Perhaps the most important piece of evidence that the pathologist can provide in a homicide case is cause of death. 31 The National Association of Medical Examiners (NAME) oversees standards and accreditation for forensic pathologists.32 According to NAME performance standards, [p]erforming autopsies protects the public interest and provides the information necessary to address legal, public health, and public safety issues. 33 When an individual dies under suspicious circumstances, a pathologist conducts a forensic autopsy that includes external and internal examination of the body, toxicological (drugs or poison) tests, serological (blood) tests, and more.34 The examination of the body includes, but is not limited to: identifying the deceased; photographing the body, with and without clothes; removing all traces of evidence; x-raying the body; dissecting the body; and analyzing tissues through microscopic
LYLE, supra note 10, at 45. Id. at 4648. 27 Id. at 48. 28 98 AM. JUR. 3D Proof of Facts 87, 3 (2013). The National Association, in its performance standards, provides a full list of circumstances where a forensic autopsy should be performed. The first circumstance listed in Standard B3.1 is where death is known or suspected to have been caused by apparent criminal violence. NATL ASSN OF MED. EXAMRS, FORENSIC AUTOPSY PERFORMANCE STANDARDS 9 (2005, as amended, Aug. 11, 2011), available at https://netforum.avectra.com/temp/ClientImages/NAME/eed6c85d-5871-4da1-aef3abfc9bb80b92.pdf [hereinafter FORENSIC AUTOPSY PERFORMANCE STANDARDS].
26 29 30 31 32 33 34
25
Trials II, supra note 12, 6. LYLE, supra note 10, at 48. See Trials, supra note 8. See FORENSIC AUTOPSY PERFORMANCE STANDARDS, supra note 28. FORENSIC AUTOPSY PERFORMANCE STANDARDS, supra note 28. LYLE, supra note 10, at 50.
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examination.35 When all tests are complete, the pathologist assembles the autopsy report that details his or her examinations, tests, and opinion as to manner and cause of death. 36 Law enforcement determines whether to pursue criminal charges based on the opinion as to manner of death. 37 Manner in this context is usually described in one of four ways: natural, unnatural, undetermined, or unclassified.38 An unnatural death typically results in further investigation and perhaps future criminal charges. 39 B. How Autopsy Reports Are Used at Trial Autopsy reports are typically introduced as part of the prosecutions case; however, some pathologists encourage defense counsel to seek out and interview their own pathologists when preparing for a case, if necessary for effective cross-examination.40 The autopsy report itself, like most written documents, is hearsay: an out-of-court statement offered to prove the truth of the matter asserted. 41 Therefore, the prosecution usually calls the pathologist who prepared the report to testify at trial. 42 However, when a substitute pathologist appears at trial instead, courts have admitted the report into evidence under either the business record or public record hearsay exceptions.43 The Confrontation Clause becomes an issue when that scenario occurs.44 II. The Confrontation Clause and Testimonial Statements The Confrontation Clause appears in the Sixth Amendment of the United States Constitution: In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.45 The
Id. Id. at 53. 37 Trials II, supra note 12, 67. 38 Id. 7. 39 Id. 40 See id. (noting the importance of the pathologists report in the judicial process). 41 5 MCCORMICK ON EVIDENCE 246, at 375 (5th ed. 1999); see also FED. R. EVID. 801(c)(2). 42 Trials II, supra note 12. 43 See id; Matthew Yanovitch, Comment, Dissecting the Constitutional Admissibility of Autopsy Reports After Crawford, 57 CATH. U. L. REV. 269, 27980 (2007) (noting instances where courts admitted autopsy reports into evidence under the business record and public record exceptions to hearsay). 44 See People v. Dungo, 286 P.3d 442, 44849 (Cal. 2012); State v. Kennedy, 735 S.E.2d 905, 917 (W. Va. 2012).
36 45 U.S. CONST. amend. VI. The rule has been made applicable to state courts by incorporation through the Fourteenth Amendment. See Pointer v. Texas, 380 U.S. 400, 404
35
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rule bars hearsayout-of-court statements offered to prove the truth of the matter asserted46from being offered by the prosecution against the defendant when the declarant is unavailable to testify in court.47 It is therefore a rule of exclusion.48 However, the Confrontation Clause differs from hearsay rules because even if a statement falls within one of the many possible hearsay exceptions49 it will still be barred from trial if that statement is testimonial in nature.50 This is true unless the defendant had the opportunity to confront the witness at a prior proceeding.51 The clauses primary objective is to ensure that the makers of accusatory statements will be subject to cross-examination, thus promoting the procedural fairness of a criminal prosecution.52 A. Crawford v. Washington and Introduction of the Testimonial Statement Requirement Over the last decade, the Supreme Court has significantly shifted Confrontation Clause jurisprudence, creating a labyrinth of new case law.53 Prior to 2004, most hearsay statements survived Confrontation Clause analysis under the test established by Ohio v. Roberts: the statement would be admitted if the prosecution could show that the declarant was truly unavailable and the out-of-court statement bore adequate indicia of reliability.54 A statement would be deemed reliable if it was firmly rooted in a hearsay exception, or if there was a showing of particularized guarantees of trustworthiness.55 Functionally, the Roberts test was simply
(1965). 46 MCCORMICK, supra note 41; see also FED. R. EVID. 801(c)(2). 47 JAMES J. TOMKOVICZ, CONSTITUTIONAL EXCLUSION: THE RULES, RIGHTS, AND REMEDIES THAT STRIKE A BALANCE BETWEEN FREEDOM AND ORDER 32627 (2011). Id. at 325. See FED. R. EVID. 803, 804. 50 See Crawford v. Washington, 541 U.S. 36, 6869 (2004). However, a statement that is not being offered for the truth of the matter asserted, and therefore not technically hearsay, is not subject to Confrontation Clause analysis. See Tennessee v. Street, 471 U.S. 409, 414 (1985). 51 California v. Green, 399 U.S. 149, 153, 165 (1970). 52 TOMKOVICZ, supra note 47, at 36; see also Mattox v. United States, 156 U.S. 237, 24243 (1895). This Court recognized that one of the primary objectives of this constitutional provision is to compel the witness to stand face to face with the jury in order that they may look at him, and judge his demeanor upon the stand and the manner in which he gives his testimony and whether he is worthy of belief. Id.
49 48
See infra Part II.A-B. See Ohio v. Roberts, 448 U.S. 56, 66 (1980). 55 Id. Contra Richard D. Friedman, Confrontation: The Search for Basic Principles, 86 GEO. L.J. 1011, 1030 (1998) (arguing that admissibility for Confrontation Clause purposes should not
54
53
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a marriage between the hearsay rules and the Confrontation Clause, ensuring that most statements that met a hearsay exception were admitted.56 Under Crawford, the Court substituted the Roberts test for a new testimonial requirement.57 The defendant, on trial for assault, attempted to exclude statements made by his wife during a police interrogation that would have undermined his claim of self-defense.58 The wife did not testify at trial; however, the trial court admitted the statements under the hearsay exception for statements against a partys penal interest.59 The Supreme Court held that the statements should not have been admitted because they violated the defendants Sixth Amendment right to confront the witnesses against him.60 Justice Scalia, writing for the Court, reasoned that the Confrontation Clauses actual concern is to prevent testimonial statements those untested by cross-examinationfrom being offered at criminal trials.61 Scalia criticized the Roberts test because it was concerned only with substantive reliability; he concluded that the Confrontation Clause is primarily concerned with procedural reliability: the method by which the statements are tested in court.62 Focusing on the meaning of witness in the Confrontation Clause, he argued that not all witnesses are equal; instead, the clause is concerned with those who bear testimony, defining testimony as [a] solemn declaration or affirmation made for the purposes of establishing or proving some fact.63 Justice Scalia identified a core class of testimonial statements: ex parte in-court testimony or its functional equivalentthat is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants
depend on whether the statement falls within a firmly rooted hearsay exception).
56 See Thomas J. Reed, Crawford v. Washington and the Irretrievable Breakdown of a Union: Separating the Confrontation Clause from the Hearsay Rule, 56 S.C. L. REV. 185, 186 (2004). 57 Crawford v. Washington, 541 U.S. 36, 6769 (2004). 58 Id. at 3839. 59 Id. at 40; FED. R. EVID. 804(b)(3); WASH. R. EVID. 804(b)(3). The defendants wife did not testify because Washington state law bars a spouse from testifying against his or her spouse without the others consent. WASH. REV. CODE 5.60.060(1) (2012).
Crawford, 541 U.S. at 68. See id. at 61. 62 Id. ([T]he Clauses ultimate goal is reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands . . . that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.).
61 63 Id. at 51 (quoting 2 N. WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (n.p.1828)).
60
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would reasonably expect to be used prosecutorially.64 Also included in this core class were any formalized materials such as affidavits, depositions, prior testimony, or confessions.65 Despite this earth-shaking ruling, the Court left for another day any effort to spell out a comprehensive definition of testimonial.66 B. Introduction of the Primary Purpose Test Crawford was a watershed moment for Confrontation Clause jurisprudence, but because of the Courts minimal guidance, it brought a wave of uncertainty as to what statements ranked as testimonial. 67 One such ambiguity was police interrogations resulting from emergency 911 calls, traditionally admitted at trial under either the present sense impression or excited utterance exception.68 Two consolidated cases on this issue brought about the Supreme Courts introduction of the primary purpose test.69 In Davis v. Washington, the declarant made statements to a 911 dispatcher describing the events of a domestic disturbance involving her former boyfriend as they were actually happening.70 The Court concluded the statements were nontestimonial because the circumstances objectively indicated that the primary purpose of the interrogation [was] to enable police assistance to meet an ongoing emergency. 71 In Hammon v. Indiana, by contrast, the police responded to a domestic disturbance call and interviewed the victim who signed a battery affidavit while the perpetrator was in another room.72 The Court held that those statements were testimonial because the emergency had dissipated when the police arrived and, in obtaining the statement, the officers were trying to ascertain what happened as opposed to what is happening.73 Therefore, the
Id. (emphasis added). Id. at 52 (quoting White v. Illinois, 502 U.S. 346, 365 (1992) (Thomas, J., concurring)). 66 Crawford, 541 U.S. at 68 (2004). 67 GEORGE FISHER, EVIDENCE 594 (2d ed. 2008) ([A]fter the Supreme Court handed down its ruling in Crawford, state and lower federal courts began the long slog of defining the borders of the new doctrine.).
65 64
See, e.g., Hammon v. State, 829 N.E.2d 444, 447 (Ind. 2005) (admitting into evidence the alleged victims statements to police responders as a present sense expression, and her statements in affidavit as excited utterance), revd on other grounds by Davis v. Washington, 547 U.S. 813, 834 (2006); see FED. R. EVID. 803 (1)(2).
69 70 71 72 73
68
See Davis v. Washington, 547 U.S. 813, 81722 (2006). Id. at 827. Id. at 822. Id. at 81920. Id. at 830.
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primary purpose of the interrogation [was] to establish or prove past events potentially relevant to later criminal prosecutions.74 Michigan v. Bryant expanded the scope of the primary purpose test beyond cases involving ongoing emergencies. 75 In Bryant the police, while at the scene of a fatal shooting, interrogated the victim who identified the shooter and where he lived.76 The Court held that the statements were nontestimonial because the purpose of the interrogation was to catch an atlarge shooter.77 In reaching this conclusion, the Court indicated that an ongoing emergency was only one factor in determining the statement s primary purpose.78 C. Forensic Reports and the Confrontation Clause 1. Melendez-Diaz v. Massachusetts
While the criminal defense bar generally praised Crawford, there was initial concern that the testimonial requirement would not prevent courts from admitting business or public records that were not prepared by law enforcement.79 The Supreme Court first confronted this issue in the context of forensic reports in Melendez-Diaz v. Massachusetts.80 The defendant in Melendez-Diaz had been convicted of distributing and trafficking cocaine. 81 After the defendants arrest, the police seized substances found on him and sent them to a state laboratory for testing.82 The test came back positive for cocaine.83 At trial, the prosecution introduced into evidence three certificates of analysis pertaining to the test, but did not call the analyst who conducted the test to testify.84 The Supreme Court held that the certificates were analogous to a
Id. at 822. See Michigan v. Bryant, 131 S. Ct. 1143, 1160 (2011). 76 Id. at 1150. 77 See id. at 116467. But see id. at 1170 (Scalia, J., dissenting) (arguing instead that the threatening situation had ended and the victims statements had little value except to ensure the arrest and eventual prosecution of the shooter). 78 Id. at 1160 (majority opinion). 79 See Edward J. Imwrinkelried, The Treatment of Prosecution Hearsay Under Crawford v. Washington: Some Good News, But . . . ., CHAMPION, Sept.-Oct. 2004, at 16, 18; see also Pamela R. Metzger, Cheating the Constitution, 59 VAND. L. REV. 475, 476 (2006).
75 74
557 U.S. 305, 307 (2009). Id. at 30809. 82 Id.; see MASS. GEN. LAWS ch. 111, 12 (2010) (requiring drug lab analysts to conduct tests at the request of law enforcement free of charge).
81 83 84
80
Melendez-Diaz, 557 U.S. at 308. Id.
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witness, and therefore are testimonial.85 The certificates were almost identical to an affidavit, thus falling within the core class of testimonial statements.86 Writing for the Court, Justice Scalia reasoned that the certificates were identical to live, in-court testimony, doing precisely what a witness does on direct examination.87 The Court rejected the argument that the statements were not accusatory because they were merely inculpatory but did not directly accuse the defendant. 88 This would have been a rigid formulation of the Confrontation Clause, and would have created a whole class of witnesses who were helpful to the prosecution yet immune from confrontation.89 By rejecting the States arguments and the dissenting opinions, the Court expanded the clauses reach, declaring that the witness does not actually have to observe the crime and that the statements do not have to be made as part of a police interrogation.90 The Court went on to state that requiring cross-examination of lab analysts is also solid public policy, as the prospect of confrontation will prevent fraudulent and incompetent analysis.91 The analysts competence, honesty, proficiency, and methodology can be tested by crossexaminationensuring a fair trial.92 2. Bullcoming v. New Mexico
In Bullcoming v. New Mexico , the Supreme Court further refined the rule from Melendez-Diaz and held that a surrogate lab technician could not testify in place of the lab technician who conducted the original tests and wrote the forensic report.93 There, the defendant was charged with driving while intoxicated (DWI), and the principle piece of evidence against him was a certificate prepared by a forensic analyst that stated that the defendants blood-alcohol level was above the legal limit.94 At trial, the prosecution did not call the lab technician who prepared the report, but instead called a surrogate lab technician who neither observed nor
Id. at 311. Id. at 310. 87 Id. at 31011 (quoting Davis v. Washington, 547 U.S. 813, 830 (2006)). 88 Id. at 313. 89 Melendez-Diaz, 557 U.S. at 314. 90 Id. at 31517. 91 Id. at 31820. 92 Id. at 31821. 93 Bullcoming v. New Mexico, 131 S. Ct. 2705, 2710 (2011) (plurality opinion). The specific report in this case was entitled Report of Blood Alcohol Analysis. Id.
86 94
85
Id.
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reviewed the actual blood analysis.95 Nevertheless, the New Mexico Supreme Court upheld the defendants conviction, stating that the surrogate analyst could still be cross-examined on the blood-analysis machine and lab procedures.96 Justice Ginsburg, writing for a plurality, reversed the New Mexico Supreme Court, rejecting the argument that the true accuser was the machine that simply spat out numbers. 97 Instead, the Court determined that operating the machines required specialized skill and knowledge, requiring the lab technician to verify the integrity and validity of the tests in the report.98 These representations, relating to past events and human actions not revealed in raw, machine-generated data, were ripe for crossexamination.99 Also significant was the fact that the original lab technician had been placed on unpaid leave: cross-examination could have revealed issues relating to competency.100 Adding one other wrinkle, the plurality opinion expanded the primary purpose test to forensic reports, citing the test in footnote six as the main test to determine whether a statement is testimonial.101 However, Justice Clarence Thomas, though concurring in judgment, did not concur in the footnote, leaving the expansion of the primary purpose test one vote shy of a Supreme Court majority.102 3. Williams v. Illinois
In 2011, the Court was confronted with whether the contents of a DNA report could be disclosed at trial for the limited purpose of evaluating the basis of an expert witnesss testimony.103 Under Federal Rule of Evidence 703, otherwise inadmissible hearsay can be disclosed at trial for the limited
Id. at 2712. Id. at 2713. 97 See id. at 2714 (casting doubt on the New Mexico Supreme Courts conclusion that the true accuser was the machine that generated the lab results). 98 Id. at 2711, 2714. 99 Bullcoming, 131 S. Ct. at 2714 (plurality opinion). 100 Id. at 2715; see Melendez-Diaz v. Massachusetts, 557 U.S. 305, 31920 (2009) (arguing that cross-examination of forensic analysts ensures that any issues of competency are adequately addressed). 101 See Bullcoming, 131 S. Ct. at 2714 n.6 (To rank as testimonial, a statement must have a primary purpose of establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution.) (alteration in original).
96 102 103
95
Id. at 2709. Williams v. Illinois, 132 S. Ct. 2221, 2227 (2012).
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purpose of evaluating the credibility of an expert witness s opinion.104 Under the language of the federal version of the rule, a court can only allow disclosure of hearsay statements if the statements probative value substantially outweighs their prejudicial effect.105 However, some commentators argue that it is legal fiction to assert that these statements are not being offered for their truth, noting, the jury must make a preliminary judgment about whether [the out-of-court statement] is true.106 Prior to Williams, there was concern among some commentators that this exception allowed courts to circumvent Crawfords reach; if the report was not admitted for its truth, then it could be classified as testimonial.107 In Williams, a key piece of the prosecutions evidence was a blood sample that was tested to determine whether it matched DNA taken from the victims vaginal swab sample.108 The expert who testified did not work at Cellmark, the lab that conducted the test, yet testified as to his conclusion that there was a DNA match. 109 A plurality of four concluded that the experts references to the Cellmark report did not violate the Confrontation Clause because the report was not offered for its truth.110 Even assuming the report was offered for its truth, the plurality still found no Sixth Amendment problem because Cellmark did not know the name of the accused and thus the report did not pertain to a targeted individual.111 Justice Thomas concurred in the result, making five votes, but did not join in the reasoning.112 Justice Thomas concluded that in order to evaluate the experts opinion, one must first assess whether the disclosed hearsay is true.113 However he joined in the outcome, stating that the Cellmark report was not formalized enough, as it was neither sworn nor a certified
FED. R. EVID. 703. Id. 106 DAVID H. KAYE ET AL., THE NEW WIGMORE: A TREATISE ON EVIDENCE: EXPERT EVIDENCE 4.10.1 (Richard D. Friedman ed., 2d ed. 2011).
105 107 See Jeffery L. Fisher, The Truth About the Not for Truth Ex ception to Crawford, CHAMPION, Jan.-Feb. 2008, at 18, 18; Ian Volek, Note, Federal Rule of Evidence 703: The Back Door and Confrontation Clause, Ten Years Later, 80 FORDHAM L. REV. 959, 1001 (2011). 108 109 110 111 112 113
104
Williams, 132 S. Ct. at 2227. Id. at 222930. Id. at 223335 (plurality opinion). Id. at 2243. Id. at 2255 (Thomas, J., concurring in judgment). Id. at 2257.
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declaration of fact.114 Justice Kagan dissented, viewing the case as openand-shut.115 She recognized that the pluralitys approach would swallow the rule from Melendez-Diaz: If the Confrontation Clause prevents the State from getting its evidence in through the front door, then the State could sneak it in through the back.116 She also rejected the targeted individual argument because many cross-examination concerns relate to careless or incompetent work, rather than personal vendettas.117 With no reasoning representing a majority, Williams maintains the status of the Confrontation Clause as in flux, to the certain disappointment of those who wished it would provide clarification.118 III. Autopsy Reports and the Confrontation Clause A. Federal and State Courts Are Split on the Issue. The Supreme Courts Confrontation Clause jurisprudence rests on shifting sand, and the issue of whether the Confrontation Clause applies to autopsy reports is even more uncertain: There is currently a split in both the federal courts, though some of the cases are pre-Melendez-Diaz,119 and in the highest state courts.120 The debate has intensified in recent state supreme court decisions as they attempt to reconcile with Williams.121 In the pre-Melendez-Diaz world, some argued that autopsy reports were
Williams, 132 S. Ct. at 2260. Id. at 2265 (Kagan, J., dissenting). 116 Id. at 2272. 117 Id. at 227374. 118 See Bailey Ince, Confronting the Confrontation Clause: Addressing the Unanswered Question of Whether Autopsy Reports Are Testimonial Evidence, 28 TOURO L. REV. 993, 1018 (2012). 119 See, e.g., United States v. Ignasiak, 667 F.3d 1217, 1231 (11th Cir. 2012) (holding that autopsy reports are testimonial); United States v. Moore, 651 F.3d 30, 73 & n.16 (D.C. Cir. 2011) (holding that the reports in this case are testimonial but not creating a categorical rule); United States v. De La Cruz, 514 F.3d 121, 134 (1st Cir. 2008) (citing to the Courts decision in Melendez-Diaz to conclude that a medical examiner may testify to autopsy reports that he or she did not personally prepare); United States v. Feliz, 467 F.3d 227, 236 (2d Cir. 2006) (holding that autopsy reports are not testimonial). See also Prospective: Ten Key 2013 Evidence Issues, FED. EVIDENCE REV. (Jan. 7, 2013), http://federalevidence.com/blog/2013/
115 114
january/prospective-ten-key-2013-evidence-issues. 120 Compare State v. Navarette, 294 P.3d 435, 444 (N.M. 2013) (holding that autopsy report that formed basis for experts testimony was testimonial), and State v. Kennedy, 735 S.E.2d 905, 917 (W. Va. 2012) (holding that autopsy reports were testimonial), with People v. Dungo, 286 P.3d 442, 450 (Cal. 2012) (holding that autopsy reports that formed basis for experts testimony were not testimonial), and People v. Leach, 980 N.E.2d 570, 590 (Ill. 2012) (holding that autopsy reports are not testimonial).
121
See infra Part III.B.
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admissible, despite Confrontation Clause challenges, under either the business record or public record exceptions to hearsay, like many other lab reports.122 For instance, the First Circuit noted that an autopsy report is a business record because it is made in the ordinary course of business by a medical examiner that is required by law to memorialize what he or she saw or did during an autopsy.123 Autopsy reports had also been considered nontestimonial because pathologists are not adverse government agents and the reports are not prepared in response to police interrogation.124 Alternatively, a public policy rationale existed in many circles: the concern that constitutionally requiring the original pathologist to testify at trial inhibits prosecuting cold cases.125 Cold cases are those where the investigative trail is exhausted but the case is reopened years later after the discovery of new evidence, which renders prosecution feasible. 126 The concern is that the passage of time may render the original pathologist unavailable for trial.127 Further, even if the original pathologist is available to testify, he or she may have difficulty remembering the autopsy, and unlike many forensic reports, autopsies cannot simply be replicated.128 On the other side of the debate lie the rationales behind MelendezDiaz.129 The constitutional value of requiring that forensic lab technicians be available for cross-examination extends easily to autopsy reports.130 Supporters of higher Confrontation Clause scrutiny note that autopsy reports are identical to the core class of testimonial statements
122 See Yanovitch, supra note 43, at 27985 (surveying early state court decisions after Crawford that admitted autopsy reports under the business record exception or public record exception even though the pathologist did not testify).
United States v. De La Cruz, 514 F.3d 121, 133 (1st Cir. 2008). Zabrycki, supra note 20, at 1094. 125 See Yanovitch, supra note 43, at 282 (observing that courts will consider the practical effect of the passage of time, thus rendering the original pathologist unavailable, when considering whether an autopsy report is testimonial); Zabrycki, supra note 20, at 1114 (noting some practical effects of elevating autopsy reports to testimonial and the difficulties of requiring the original medical examiner to testify, including passage of time between an investigation and trial, and having to fly the medical examiner cross country). 126 National Institute of Justice, What is a Cold Case?, NATL INST. OF JUST. (July 15, 2008), http://www.nij.gov/journals/260/what-is-cold-case.htm.
124 127 United States v. Feliz, 467 F.3d 227, 236 (2d Cir. 2006) (quoting People v. Durio, 794 N.Y.S.2d 863, 86869 (N.Y. Sup. Ct. 2005)).
123
Id. See Metzger, supra note 79 (discussing the constitutional need to have effective crossexamination of forensic testimony). 130 See Burke, supra note 21, at 1920.
129
128
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contemplated in Crawford: An autopsy report almost always contains both well-documented observations (e.g., the victim suffered blunt force trauma to the skull) and expert conclusions (e.g., the most likely manner of death is homicide), and may result in physical evidence (e.g., a bullet removed from the deceaseds body).131 Further, the purpose of many autopsies is to determine whether to prosecute, and pathologists often work hand-inhand with police.132 Realistically, autopsy reports will always be considered to be prepared for prosecutorial (or litigation) purposes.133 B. Recent State Supreme Court Decisions Autopsy reports have received plenty of attention from state supreme courts since Williams.134 One of the most high profile cases is People v. Dungo in California.135 There, the court held that there was no Confrontation Clause violation when the pathologist testified about findings contained in the autopsy report, even though the preparer of the report did not testify.136 At the defendants homicide trial, the defendant did not dispute that he had strangled the victim to death, but the parties disagreed as to whether or not the strangling lasted two minutes and was therefore with malice.137 At a pre-trial evidentiary hearing, the defense counsel uncovered that the original pathologist had been fired from a former coroners position, resigned from another, and that prosecutors had previously refused to use him for trial because of his supposed incompetence.138 Over objection, testimony pertaining to findings in the autopsy report was admitted, and the defendant was convicted of seconddegree murder.139 The court held that the testifying pathologists statements describing conditions of the body and summarizing the former pathologist s conclusions on cause of death did not violate the Confrontation Clause.140 The court rejected the defendants arguments that the statements were
Id. at 18; see also Washington v. Crawford, 541 U.S. 36, 52 (2004). Burke, supra note 21, at 19. 133 Steven N. Yermish, Melendez-Diaz and the Application of Crawford in the Lab, 33 CHAMPION, Aug. 2009, at 28, 31. 134 See supra notes 13457 and accompanying text. 135 See supra notes 11920 and accompanying text. 136 People v. Dungo, 286 P.3d 442, 450 (Cal. 2012). 137 Id. at 44246. 138 Id. at 44546. 139 Id. at 44647. 140 Id. at 44950. The court found it important to emphasize that the report itself was never offered into evidence, only statements pertaining to the report. Id.
132
131
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testimonial because a detective was present during the autopsy, the autopsy was mandated by statute, and the original pathologist was required to notify law enforcement about suspicious causes of death.141 Regarding primary purpose, the court noted there are reasons to perform an autopsy not limited to criminal investigation, including insurance or to comfort a grieving family.142 As such, the court seemed to have applied an exclusive purpose, rather than a primary purpose test.143 Similarly, the Illinois Supreme Court found no Confrontation Clause violation in a surrogate pathologists testimony.144 Following Williams, the court reasoned that because the pathologist acts in the interest of public health, and not as an accusatory agent, the person has no incentive to produce anything other than a scientifically sound and reliable profile. 145 Like in Dungo, the court said that the reports primary purpose is not for use in a criminal trial, but for other civil reasons.146 Also, the court cited the public policy rationale of avoiding practical concerns when the government prosecutes the defendant after years of delay. 147 Alternatively, the West Virginia Supreme Court in State v. Kennedy recently held that autopsy reports are testimonial statements. 148 The defendant argued that he had not murdered the victim by running her over with a car, but instead that his wife killed her with a rock. 149 The autopsy report stated that the cause of death was multiple blunt force trauma to the head.150 However at trial, a different pathologist testified that based on opinions contained in the report and personal observations of autopsy photos, the victims injuries were not consistent with being struck by a rock and it was more likely that she was run over by a car. 151 Years later on appeal, the State argued that based on Williams, the pathologist could use the non-admissible autopsy report as the basis for his opinion.152 The court split the difference: the pathologists testimony about
Id. Dungo, 286 P.3d at 450. 143 Contra id. at 466 (Corrigan, J., dissenting) (noting that despite the different purposes autopsy reports may serve, they usually result in the production of testimonial statements). 144 People v. Leach, 980 N.E.2d 570, 590 (Ill. 2012). 145 Id. at 58990 (quoting Williams v. Illinois, 132 S. Ct. 2221, 2244 (2012)). 146 See id. at 592. 147 Id. 148 State v. Kennedy, 735 S.E.2d 905, 917 (W. Va. 2012). 149 Id. at 91011. 150 Id. at 910. 151 Id. 152 Id. at 918.
142
141
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being run over (indicating tire markings on the victims clothes) was his independent opinion based on observing the autopsy photos; however his testimony regarding the contents of the autopsy report was held in error because the pathologist merely reiterated the contents of the autopsy report.153 The court held that autopsy reports are categorically testimonial under the primary purpose test because MEs, by state statute, are responsible for [t]he formulation of conclusions, opinions or other testimony in judicial proceedings.154 Applying the statute, the court determined that under the primary purpose test, there is no question that the report is testimonial.155 Similarly, the New Mexico Supreme Court in State v. Navarette granted the defendant a new trial after holding that a surrogate pathologist s testimony about conclusions contained in an autopsy report violated the Confrontation Clause.156 The disputed factual issue was whether the fatal shots came from the passenger seat (where the defendant was sitting) or from the drivers seat.157 The autopsy report was not submitted into evidence, but the surrogate pathologist testified that, based on conclusions contained in the report, the fatal gunshots came from the passenger seat. 158 In holding that the conclusions from the autopsy report were testimonial, the court referenced many rationales from the Melendez-Diaz progeny of cases: Inquiry into [the pathologists] training, the equipment used to arrive at [the] subjective conclusion, whether the evidence of soot or stippling might have been masked by blood, or any other variables that would influence [the] decision should have been tested in the crucible of cross-examination.159
ANALYSIS
IV. Autopsy Reports Embody the Core Aspects of a Testimonial Statement and Should Be Subject to the Confrontation Clause. The remainder of this Note will argue that autopsy reports are testimonial and should categorically be subject to the Confrontation Clause160 because they are part of the core class of testimonial statements
153 154 155 156 157 158 159 160
Id. at 922. Kennedy, 735 S.E.2d at 917 (emphasis supplied) (citing W. VA. CODE 61-12-3(d) (2010)). Id. State v. Navarette, 294 P.3d 435, 44043 (N.M. 2013). Id. at 43637; see supra notes 27 and accompanying text. Navarette, 294 P.3d at 43637. Id. at 443; Melendez-Diaz v. Massachusetts, 557 U.S. 305, 317 (2009). Contra Reid Allison, Student Article, Confronting the Dead: The Testimonial Status of
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contemplated by the Court in Crawford,161 and their primary purpose is to establish facts that can be used by the prosecution at a future judicial proceeding.162 It goes without saying that the Court has not provided clear guidance on the Confrontation Clause.163 With this in mind, autopsy reports are a prime vehicle to reaffirm the principles of Crawford, MelendezDiaz, and their progeny, as there is a growing demand that the Court hear the issue.164 Yet considering how the Court has previously ruled in these cases, [u]nder our Confrontation Clause precedents, this is an open-andshut case.165 A. The Rationale of Melendez-Diaz and its Progeny Apply to Autopsy Reports. The Supreme Court should hold that, like other forensic reports, autopsy reports are part of the core class of testimonial statements166 because they have an evidentiary purpose and are prepared under circumstances which would lead an objective witness reasonably to believe that [they] would be available for use at a later trial. 167 Whether a report or document has been created and prepared for trial is the most substantial factor in determining whether a statement is testimonial.168 As such, Melendez-Diaz has put to rest any argument that written forensic reports cannot be subject to the Confrontation Clause.169 These reports are often prepared with an eye toward trial, and thus cannot fall under the business record exception.170 If a report is prepared to write down what
Autopsies After Melendez-Dias and Bullcoming, AM. CRIM. L. REV. BLOG (Feb. 12, 2012, 10:57 PM), http://www.americancriminallawreview.com/Drupal/blogs/blog-entry/confronting-dead -testimonial-status-autopsies-after-melendez-dias-and-bullcoming-02 (arguing that the Supreme Court should adopt a case-by-case approach). 161 See Crawford v. Washington, 541 U.S. 36, 51 (2004); infra Part IV.A. 162 See infra Part IV.B. 163 See supra Part II. 164 See FED. EVIDENCE REV., supra note 119. 165 See Williams v. Illinois, 132 S. Ct. 2221, 2265 (2012) (Kagan, J., dissenting). 166 Crawford, 541 U.S. at 51. 167 Id. at 52. 168 See Michael A. Sabino & Anthony Michael Sabino, Confronting the Crucible of CrossExamination: Reconciling the Supreme Courts Recent Edicts on the Sixth Amendments Confrontation Clause, 65 BAYLOR L. REV. 255, 288 (2013). See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 321 (2009). Id. The lab reports in Melendez-Diaz could not fall under the business record exception because they were calculated for use essentially in the court, not in business. Id. (quoting Palmer v. Hoffman, 318 U.S. 109, 114 (1943)).
170 169
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happened, then the Confrontation Clause must apply.171 The same is true of autopsy reports,172 which memorialize in writing key issues such as cause and manner of death.173 Therefore, the rationales of Crawford and Melendez-Diaz easily extend to autopsy reports.174 The last decade has seen greater scrutiny of forensic science testimony as more and more wrongful convictions are traced back to faulty forensic evidence introduced at trial.175 Testimony pertaining to autopsy reports is no exception.176 Like the cross-examination of a DNA analyst, the crossexamination of a pathologists credentials of methodology for conducting a test is beneficial to the truth-seeking process.177 One case is particularly illustrative of the great weight juries place on a pathologists testimony: In 2007, the Mississippi Supreme Court reversed Tyler Edmonds s murder conviction after concluding that the pathologists testimony was based on mere speculation.178 Just as new DNA evidence has exonerated countless inmates, properly performing an autopsy can also exonerate a person, as it did Greg Bright. 179 Convicted of murder in 1975, he was set free twenty-eight years later after his new attorney took a closer look at a key autopsy report.180 The States key witness in the case had testified that the victim was killed at 1:30 a.m., but the report stated that rigor mortis had not yet set in by 9:00 a.m. when
Id. at 317. See infra Part IV.B. 173 LYLE, supra note 10. 174 See infra text accompanying notes 179181. 175 See Brandon L. Garrett & Peter J. Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, 95 VA. L. REV. 1, 12 (2009) (summarizing a study that showed that wrongful convictions resulting from the introduction of invalid forensic science at trials is not just common, but prevalent). Though the prosecution offers this invalid forensic science, the authors distribute blame to both sides of the adversarial system, as defense counsel often fails to adequately cross-examine the experts testimony. Id. at 12.
172 171
See, e.g., Joneil Adriano, Pathologists Work Raises Questions, AC360 BLOGS (Aug. 21, 2012, 10:00 PM), http://ac360.blogs.cnn.com/2009/08/21/pathologists-work-raises-questions/ (reporting on the case of Tyler Edmonds, whose murder conviction was overturned by the Mississippi Supreme Court because of the pathologists speculative and scientifically unfounded autopsy conclusions) (quoting Edmonds v. State, 955 So. 2d 787, 79192 (Miss. 2007)). Cf. Brief of Amici Curiae Public Defender Service for the District of Columbia and the National Association of Criminal Defense Lawyers in Support of Petitioner at 2, Williams v. Illinois, 132 S. Ct. 2221 (2012) (No. 10-8505). Edmonds v. State, 955 So. 2d 787, 792 (Miss. 2007). KAREN HOUPPERT, CHASING GIDEON: THE ELUSIVE QUEST FOR POOR PEOPLES JUSTICE 105, 164 (2013).
179 180 178 177
176
Id. at 16367.
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he examined the body.181 The original pathologist told the new attorney that this meant that the victim had been killed between 5:00 a.m. and 8:00 a.m.182 This inconsistency was a key factor in the case s reconsideration and eventual dismissal years later. 183 Cases like these showcase the powerful effect that a pathologists autopsy report can have on a casesimilar to the effect of a DNA or drug lab test.184 People v. Dungo, discussed above, demonstrates the importance of cross-examining the pathologist who actually conducted the autopsy. 185 Recall that questions arose about the pathologists competence: He lied on his rsum about work done in another county; he was subsequently let go under a cloud of suspicion; numerous news articles questioned his incompetence; and some prosecutors had refused to call him to testify as a result.186 The rationale of Melendez-Diaz accounts for the value of crossexamining the preparer of the report on his or her skillsets: Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well.187 In Dungo, the prosecution wanted to avoid such weeding out, and the Court accepted this despite its inconsistency with the rationales supporting confrontation. 188 This presents a significant problem and circumvents the Constitution: By not offering a report into evidence, but instead having another person testify about its contents, the prosecutor could choose the analyst-witness of his [or her] dreams.189 If
Id. at 164. Id. 183 See id. at 167. 184 It is important to note that both federal appeals courts that have considered the issue since Melendez-Diaz have held that autopsy reports can be testimonial statements. See, e.g., United States v. Ignasiak, 667 F.3d 1217, 1234 (11th Cir. 2012); United States v. Moore, 651 F.3d 30, 73 (D.C. Cir. 2011).
182 181
See supra notes 13540 and accompanying text. People v. Dungo, 286 P.3d 442, 445 (Cal. 2012). The pathologist, Dr. Bolduc, had caused controversy in a previous murder trial after he based his conclusion regarding cause of death on a police report rather than his own medical examination. Id. at 445 n.2; see also People v. Beeler, 891 P.2d 153, 168 (Cal. 1995) (The terms under which Dr. Bolduc departed the coroners office and his asserted misconduct in a prior, unrelated case were facts for the trial court to considerand, indeed, might even raise questions . . . .).
186
185
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 319 (2009). See Bullcoming v. New Mexico, 131 S. Ct. 2705, 2715 (2011) (describing the rationale of the Confrontation Clause as allowing counsel to ask[] questions designed to reveal whether incompetence, evasiveness, or dishonesty existed); Dungo, 286 P.3d at 45455.
188
187
Williams v. Illinois, 132 S. Ct. 2221, 2272, 2275 (2012) (Kagan, J., dissenting) (Scientific testing . . . is only as reliable as the people who perform it. That is why a defendant may wish to ask the analyst [or a pathologist] a variety of questions: How much experience do you have? Have you made mistakes in the past . . . ?).
189
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the right to confront the witnesses against you means anything, should it at least mean the opportunity to test the competency of your accuser through cross-examination?190 The answer should be yes when human judgment and skill [are] involved, as you cannot trust the reports reliability without the preparers availability for confrontation.191 Some of the biggest objections to holding that autopsy reports are testimonial are the practical concerns it may raise: What about prosecutions brought years later?192 Is it cost efficient or worth the time to fly pathologists around the country to trials and thus interrupt their work? Furthermore, what if the original pathologist has since died?193 Cold cases brought years later impose the largest public policy hurdle because if the original pathologist has died, an autopsy on a decomposed body would be impractical.194 Often times though, objective markers195 such as autopsy photos and other raw data may be available for a new, surrogate pathologist to conduct independent analysis. 196 Also, more resources can be appropriated to ME offices to account for the frequent flyer miles they may incur.197 Some would argue that it is not worth having the original pathologist testify because he or she may not even remember a particular autopsy performed years ago.198 Accepting this argument would allow the prosecution to tell the defendant which witnesses are or are not important, and regardless, the pathologist would likely recall a particular autopsy
190 See Melendez-Diaz, 557 U.S. at 320 (Like expert witnesses generally, an analysts lack of proper training or deficiency in judgment may be disclosed in cross-examination.); Friedman, supra note 55 (noting the principle underlying the Confrontation Clause affords the defendant a bright-line rule). 191 See United States v. Ignasiak, 667 F.3d 1217, 1234 (11th Cir. 2012). As the National Association of Medical Examiners own standards demonstrate, there is much human skill and judgment involved in autopsies. See FORENSIC AUTOPSY PERFORMANCE STANDARDS, supra note 28, at 10.
See Yanovitch, supra note 43, at 269. Zabrycki, supra note 20, at 1114. 194 See id. 195 State v. Navarette, 294 P.3d 435, 443 (N.M. 2013). 196 See Jesse J. Norris, Who Can Testify About Lab Reports After Melendez-Diaz and Bullcoming? Surrogate Testimony and the Confrontation Clause, 38 AM. J. CRIM. L. 375, 428 (2011); infra Part V. 197 Recent Cases, EvidenceConfrontation ClauseSecond Circuit Holds That Autopsy Reports Are Not Testimonial Evidence.United States v. Feliz, 467 F.3d 227 (2d Cir. 2006), cert. denied, 75 U.S.L.W. 3438 (U.S. Feb. 20, 2007) (NO. 06-8777), 120 HARV. L. REV. 1707, 1713 (2007).
193 198
192
See Zabrycki, supra note 20, at 1116.
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when he or she reviews the report for trial.199 Further, cross-examination has the benefit of testing the pathologists general competency and training.200 Without the opportunity to cross-examine, the defendant would be deprived of his or her right to confrontation.201 However significant or inconvenient the practical objections may be, they should not outweigh clear constitutional requirements.202 Where the Constitution provides a clear command, weighty societal costs are unimportant when enforcing a constitutional directive.203 The Constitution contains a set of principles that are intended to shield the Court from the pressure of current trends.204 The balancing has already been done, and the right to confront witnesses is a clear command that the judiciary should not overturn without sound, constitutional supportnot merely because it inconveniences the governments case.205 There is also the argument that pathologists are not actual accusers for constitutional purposes because they do not know the identity of the accused at the time of the autopsydrawing an analogy from the Williams plurality that held that DNA tests are not testimonial because they do not target a specific individual.206 Such an argument appears to shoot straight, but in fact misses the target; human skill, judgment, and competency, not the off chance that the pathologist might have it out for the named accused, are the primary concerns behind confrontation.207 Also, questions about the
199 Burke, supra note 21, at 20. Even when the pathologist remembers a particular report, the Confrontation Clause is no longer a problem because the defendant at least had the opportunity to confront the pathologist on the witness stand. G. MICHAEL FENNER, THE HEARSAY RULE 524 (2d. ed. 2009).
Cf. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 319 (2009) (stating that the Confrontation Clause is designed to weed out incompetent analysts). 201 See supra text accompanying notes 18591. 202 See Friedman, supra note 55, at 1030 (arguing that the right to confront witnesses should not be compromised in this new age of balancing). 203 See Burke, supra note 21, at 20. 204 See Hamdan v. Rumsfeld, 548 U.S. 557, 637 (2006) (Kennedy, J., concurring in part) (The Constitution is best preserved by reliance on standards tested over time and insulated from the pressures of the moment.).
205 See New Jersey v. T.L.O., 469 U.S. 325, 369 (1985) (Brennan, J., dissenting) (All these balancing tests amount to brief nods by the Court in the direction of a neutral utilitarian calculus while the Court in fact engages in an unanalyzed exercise of judicial will.); Friedman, supra note 55, at 1030. 206 See Williams v. Illinois, 132 S. Ct. 2221, 2243 (2012). This appears to be an entirely new argument, as Justice Kagan correctly points out that [w]here that test comes from is anyones guess. Id. at 2273 (Kagan, J., dissenting). 207
200
See supra notes 17591 and accompanying text.
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cause or manner of death, though maybe not directly inculpating, are essential to proving guilt in a murder case. 208 The argument is essentially that the person is inherently trustworthy, but accepting that reasoning would bring the law closer to a substantive reliability test, i.e., Ohio v. Roberts, which Crawford specifically overruled.209 B. The Primary Purpose of Forensic Autopsy Reports Is to Establish a Fact Relevant to a Future Judicial Proceeding. Not only do autopsy reports qualify as core testimonial statements under Crawford, but they also satisfy the primary purpose test.210 Whether this is now the controlling test remains an open question as only four Justices signed onto footnote six of Justice Ginsburgs opinion in Bullcoming.211 Nevertheless, courts have applied and relied on the primary purpose test when faced with autopsy reports. 212 These reports should categorically satisfy the test because they are highly relevant to criminal proceedings; pathologists are well aware that they might be used at trial;213 and state statutes and actual practice demonstrate how closely linked ME offices are to law enforcement and the investigative process. 214 First, there is no doubt that autopsies can provide a relevant fact for trial: In fact, as some of the cases previously discussed indicate, they can provide the most relevant fact for trial (cause or manner of death).215 Thus there is growing pressure on defense attorneys to more thoroughly crossexamine the preparers of such reports.216 Next, pathologists are fully aware that their reports may be used by law enforcement as part of an investigation, and thus they may reasonably believe that the reports may be used later at trial.217 Pathologists typically conduct a forensic autopsy report because of suspicious circumstances
See LYLE, supra note 10; Trials, supra note 8. See Crawford v. Washington, 541 U.S. 36, 5759 (2004). 210 See Michigan v. Bryant, 131 S. Ct. 1143, 1159 (2011); Davis v. Washington, 547 U.S. 813, 81314 (2006).
209
208
See Bullcoming v. New Mexico, 131 S. Ct. 2705, 2714 n.6 (2011). See State v. Kennedy, 735 S.E.2d 905, 917 (W. Va. 2012). 213 See infra text accompanying notes 21516. 214 See infra text accompanying notes 22224. 215 Trials, supra note 8; see LYLE, supra note 10. 216 See Trials II, supra note 12, 4; cf. Garrett & Neufeld, supra note 175, at 1 (observing that in the vast number of criminal trials where the State presented invalid forensic analyst testimony, defense counsel rarely cross-examined the analyst or supplied an expert of their own).
212 217
211
Yermish, supra note 133.
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surrounding a death, and pathologists typically go to the scene to gather information on whether a homicide potentially occurred.218 Often, law enforcement requests the autopsy.219 Some have observed that [t]he medical investigators job is to assist the police detectives in gathering evidence around the body and to collect medicolegal evidence on the body.220 Any objective onlooker may conclude that the ME s office is just another investigative arm of law enforcement.221 State statutes pertaining to MEs also demonstrate that forensic autopsy reports have the primary purpose of establishing facts relevant at trial.222 The West Virginia Supreme Court in State v. Kennedy and the Eleventh Circuit in United States v. Ignasiak relied on state statutes for guidance.223 For instance, the court in Ignasiak found it essential that the MEs office exists within the Department of Law Enforcement by statute in Florida.224 The Medical Examiners Commission itself must include one state attorney, one public defender, and one sheriff.225 The court in State v. Kennedy looked to West Virginias state statute, which stated that the purposes of the ME included the performance of death investigations and the formulation of conclusions, opinions or testimony in judicial proceedings.226 Even where the purpose is not explicit, other states require MEs to cooperate with law enforcement investigations.227 For example, Iowa requires the state ME to provide assistance, consultation, and training to county medical examiners and law enforcement officials.228 Conversely, law enforcement in Massachusetts is required to cooperate at the behest of the ME in the
Id. See Burke, supra note 21, at 19 (observing that MEs often work hand-in-hand with the police). See, e.g., ALA. CODE 45-2-61.04(1) (2013) (requiring the state medical examiner to conduct an autopsy upon written direction of the district attorney). 220 Trials II, supra note 12, 11. 221 Cf. Michigan v. Bryant, 131 S. Ct. 1143, 1156 (2011) (noting that one must objectively evaluate the surrounding circumstances to determine the primary purpose of a police interrogation); Bullcoming v. New Mexico, 131 S. Ct. 2705, 2714 n.6 (2011) (applying the primary purpose test to lab reports covered under the Melendez-Diaz dichotomy). See infra text accompanying notes 22325. See United States v. Ignasiak, 667 F.3d 1217, 123133 (11th Cir. 2012); State v. Kennedy, 735 S.E.2d 905, 917 (W. Va. 2012). 224 Ignasiak, 667 F.3d at 1231; FLA. STAT. ANN. 406.02 (West, Westlaw through 2013 legislation).
223 222 219
218
Ignasiak, 667 F.3d at 1231; 406.02 (Westlaw). W. VA. CODE 61-12-3(d) (West, Westlaw through 2013 legislation) (emphasis added); Kennedy, 735 S.E.2d at 917.
226 227 228
225
Yermish, supra note 133. IOWA CODE ANN. 691.6 (West 2010); see also ALA. CODE 45-2-61-04(1) (2013).
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investigation of medicolegal cases, and must provide the ME access to all state police laboratories for conducting tests. 229 Thus, simple realities of practice and language from state statutes reaffirm the conclusion that, categorically, the primary purpose of autopsy reports is to prove a relevant fact at a later judicial proceeding.230 One of the major arguments against classifying autopsy reports as testimonial under the primary purpose test is that they serve other purposes as well.231 The court in People v. Dungo noted that despite a state statute requiring MEs to report to law enforcement if they believe the death is a homicide, autopsies have other purposes not related to criminal investigation.232 Autopsies may be useful to investigate deaths unrelated to criminal activity, such as those by alcoholism or contagious diseases, and can be used for other purposes, such as by an insurance company attempting to determine if a death is covered by its policy.233 However, this argument distorts the primary purpose testpreparation for potential use at trial must be the primary purpose, not the only purpose.234 Just as a statement to the police can serve multiple purposes, so can an autopsy. 235 Also, the courts analysis failed to distinguish between clinical (for primarily medical research) and forensic (death investigation for legal purposes) autopsies.236 Only forensic autopsies are at issue, and based on the close practical and statutory link between ME offices and law enforcement, the primary purpose of forensic autopsies is to document facts with an eye toward trial.237 The second variation of the other purpose argument is that while autopsy reports could be testimonial in some instances, there should be no categorical rule because it would paint too broad a brush.238 One federal appeals court decision after Melendez-Diaz adopted such an
MASS. GEN. LAWS ch. 38, 5 (2010). See supra notes 21724 and accompanying text. 231 See People v. Dungo, 286 P.3d 442, 450 (Cal. 2012); People v. Leach, 980 N.E.2d 570, 592 (Ill. 2012). 232 Dungo, 286 P.3d at 450. 233 Id. 234 See FENNER, supra note 199, at 522; see also Michigan v. Bryant, 131 S. Ct. 1143, 1156 (2011). 235 See, e.g., Davis v. Washington, 547 U.S. 813, 828 (2006) (observing that the initial purpose of a police interrogation to assist in an ongoing emergency can morph into an interrogation that produces testimonial statements).
230 236 237 238
229
See LYLE, supra note 10. See supra notes 21020 and accompanying text. Allison, supra note 160.
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approach.239 Supporters of this argument fear that researchers who conduct autopsies to study disease, or for other purely scientific reasons, will be subject to confrontation when in fact their research was never contemplated as a part of an investigation.240 But this argument fails to consider that the distinction is already drawn between forensic and clinical autopsies.241 Clinical autopsies are only conducted for the study of disease and not for any legal purpose: Thus, the categorical reach only extends to all forensic autopsies.242 More primary purpose analysis should not be necessary.243 A case-by-case analysis would only be a repackaging of the other purpose argument; it would provide a court with too easy an avenue to take away a defendants right to confrontation.244
V. Surrogate Testimony Is Only Proper Under Bullcoming v. New Mexico When the Surrogate Pathologist Reaches a Conclusion Based on the MEs Own Independent Analysis. Allowing a surrogate pathologist to testify about a conclusion based on his or her own independent analysis of nontestimonial evidence can also alleviate concerns about the side effects of holding autopsy reports as testimonial.245 Though Bullcoming requires the person who actually conducted the test to be present at trial, it leaves the door open for surrogates to testify when they reach conclusions based on their own independent analysis, as opposed to merely parroting the written report.246 Though a dead body raises additional difficulties beyond those
239 United States v. Moore, 651 F.3d 30, 73 n.16 (D.C. Cir. 2011); see also People v. Dungo, 286 P.3d 442, 46667 (Cal. 2012) (Corrigan, J., dissenting) (appearing to argue that this particular autopsy was testimonial but that the facts of each case may lead to different conclusions). 240 See Allison, supra note 160. 241 See LYLE, supra note 10. 242 Id. at 48. 243 See United States v. Ignasiak, 667 F.3d 1217, 123133 (11th Cir. 2012) (holding that all autopsies conducted as a result of a suspicious death in the state of Florida, rather than just the autopsy in that case, are prepared for use at trial); Yermish, supra note 133 (recognizing that an MEs report should likely always be considered prepared for purposes of prosecution).
Cf. Crawford v. Washington, 541 U.S. 36, 54 (2004) (The text of the Sixth Amendment does not suggest any open-ended exceptions from the confrontation requirement to be developed by the courts.).
245 See Norris, supra note 196 (arguing that surrogate testimony based on clearly nontestimonial data should be allowed). 246
244
See id.
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accompanying other types of evidence,247 there are limited circumstances when this is an option, such as in State v. Kennedy.248 There, the testifying pathologist did not conduct the autopsy yet reached some conclusions from observing photographs of the victims body, which was not testimonial evidence.249 Dr. Sabet unequivocally testified that these were additional opinions he derived from inspection of the clothing and autopsy photographs; they are mentioned nowhere in the autopsy report itself. 250 Contrast this with Navarette, where the surrogates testimony on the soot and stippling was improper because such a conclusion could not be determined with the naked eye.251 Instead, actual inspection of the body with scientific equipment was required: Unlike a simple observation of photographs, the autopsy findings do not involve objective markers that any third party can examine to express an independent opinion as to the existence or non-existence of soot or stippling.252 Independent conclusions are proper only when the pathologist can make conclusions based on his or her own observations of autopsy photographs, and not when they simply parrot the opinion or subjective statement of the pathologist who . . . took the photographs.253 Well-preserved photographs of the body may therefore overcome constitutional obstacles, as opinions based on them will be independent of the reports conclusions.254
247 Compare Bullcoming v. New Mexico, 131 S. Ct. 2705, 2718 (2011) (observing that the state always has the option of just retesting the blood sample for its blood-alcohol content), with Zabrycki, supra note 20, at 1114 (arguing that if the original pathologist is unavailable to testify because he or she has died, it would be very difficult to redo an autopsy of a decomposed body).
State v. Kennedy, 735 S.E.2d 905, 921 (W. Va. 2012). Id. 250 Id. 251 State v. Navarette, 294 P.3d 435, 442 (N.M. 2013). 252 Id. at 443. Similarly, when confronted with the same issue on surrogacy, the Eleventh Circuit noted the surrogates testimony was not based on independent judgment because to answer certain questions on cross-examination pertaining to cause of death, the surrogate pathologist had to refer to the original pathologists autopsy reports. United States v. Ignasiak, 667 F.3d 1217, 1234 (11th Cir. 2012). 253 Navarette, 294 P.3d at 444 (admitting surrogate pathologists other conclusions because they were independent opinions and he was therefore available for cross-examination).
248 249 254 Cf. Norris, supra note 196, at 428 ([S]urrogate testimony based on data that is clearly nontestimonial should be admissible.).
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VI. Contents of an Autopsy Report That Formed the Basis of an Expert s Testimony Should Not Be Disclosed at Trial Pursuant to the Notfor-Truth Exception to Hearsay. Not only should autopsy reports categorically be held as testimonial statements, but under Williams v. Illinois, a surrogate pathologist should not be able to testify about the contents of an autopsy report that was not submitted into evidence but formed the basis for the pathologists testimony.255 Such an exception would make little sense and leave the guarantee of confrontation meaningless: If the Confrontation Clause prevents the State from getting its evidence in through the front door, then the State could sneak it in through the back.256 Just as five Justices rejected such a trick in Williams regarding DNA lab reports, so too should lower courts bar autopsy reports from being brought in through the back door. 257 Federal Rule of Evidence 703258 and parallel state rules259 have been a concern since Crawford.260 Under Rule 703, a court may allow the admission of otherwise inadmissible hearsay for the limited purpose of evaluating the credibility of an expert witnesss testimony, but there is a legal fiction that it is not to be considered for its truth.261 Since Crawford, lower courts have frequently employed this approach to admit testimonial statements. 262 This not-for-truth exception provides an improper end-run for the prosecution to admit into evidence hearsay that violates the Confrontation Clause.263 Generally, the prosecution intends for the jury to hear the hearsay statements for the truth of the matter asserted.264 Whenever the jury must assess the credibility of the expert who relies on an out-of-court statement, the jury must make a preliminary judgment about whether
Infra text accompanying notes 25672. Williams v. Illinois, 132 S. Ct. 2221, 2272 (2012) (Kagan, J., dissenting). 257 See Navarette, 294 P.3d at 44344. 258 FED. R. EVID. 703. 259 See, e.g., NMRA RULE 11-703 (parroting the federal rule). 260 See Fisher, supra note 107. 261 KAYE ET AL., supra note 106, 4.10.1, at 19697. 262 See Volek, supra note 107, at 993. 263 See Fisher, supra note 107, at 20 (The very reason the prosecution wants to introduce the hearsay is to invite the jury to credit the expert's opinion on the ground that the hearsay statements are substantively reliable.); Volek, supra note 107 (arguing that Rule 703 should not be a route to admit testimonial hearsay). 264 See Fisher, supra note 107, at 20; see also Williams v. Illinois, 132 S. Ct. 2221, 2269 (2012) (Kagan, J., dissenting) (observing that when an out-of-court statement forms the basis for a conclusion, the statement has no purpose separate from its truth; the fact-finder can do nothing with it except assess its truth . . . .).
256
255
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[the out-of-court statement] is true.265 A majority of five Justices in Williams concluded that DNA reports are functionally admitted for their truth,266 and two state courts have rightfully embraced the same conclusion for autopsy reports.267 The court in State v. Kennedy did not follow the pluralitys not-for-truth lead, and instead simply applied the primary purpose test to conclude that the report was testimonial.268 Specifically addressing the not-for-truth exception, the court in State v. Navarette noted that the exception could not apply in the Confrontation Clause challenge because a majority of the Supreme Court had rejected that approach. 269 The trial record in that case revealed that the trial judge never conducted a Rule 703 balancing test, but that the court nevertheless endorsed a bright-line constitutional rule that requires the out-of-court declarant to be subjected to cross-examination . . . .270 The constitutional right to confront an opposing witness is best protected if courts in the future also recognize this bright-line rule and refuse to accept the nuanced not-for-truth exception.271 Though a defendant can ask for a limiting instruction under Federal Rule of Evidence 105,272 such an instruction will do little to stop a jury from considering hearsay for its truth. 273 Limiting instructions are extremely confusing to both laypersons and jurists, and would not repair the prejudicial damage.274 Some might also argue that Rule 703s balancing test
265 Williams, 132 S. Ct. at 2257 (Thomas, J., concurring) (quoting KAYE ET AL., supra note 106, 4.10.1, at 196). 266 See id. at 2259; id. at 2268 (Kagan, J., dissenting). 267 See infra notes 26466 and accompanying text; see also State v. Kennedy, 735 S.E.2d 905, 917, 919 (W. Va. 2012).
Kennedy, 735 S.E.2d at 917, 919 (noting that the pluralitys not-for-truth lead will be construed with extreme caution because the Courts factual distinctions are pertinent to this case). State v. Navarette, 294 P.3d 435, 442 (N.M. 2013). See id. (Although our evidentiary rule permits the disclosure of inadmissible evidence if a court specifically determines that the probative value of the inadmissible evidence in assisting the jury to evaluate the experts opinion substantially outweighs their prejudicial effect, a majority of the United States Supreme Court rejects that approach.).
270 269
268
See supra notes 20203 and accompanying text. FED. R. EVID. 105 (stating that upon a timely request from counsel, the judge must restrict the evidence to its proper scope and instruct the jury accordingly). 273 See Fisher, supra note 107, at 19; supra note 264 and accompanying text. 274 See United States v. Michelson, 335 U.S. 469, 48485 (1948) (noting that most jurors will find limiting instructions almost unintelligible); Nash v. United States, 54 F.2d 1006, 1007 (2d Cir. 1932) (recognizing that these instructions require a mental gymnastic which is beyond, not only [the jurys] powers, but anybodys else [sic]).
272
271
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is a safeguard;275 however, the Constitution supersedes any congressionally enacted rule of evidence.276 Besides, we cannot possibly trust judges to adequately protect a defendants clear constitutional right: [The] balancing test is no substitute for a constitutional provision that has already struck the balance in favor of the accused.277
CONCLUSION
The Confrontation Clause of the Sixth Amendment embodies one of the core mechanisms for ensuring that a defendant is given every chance to protect his or her liberty against accusations from the State. At the foundation of a fair trial and the basic notions of justice lies a defendants right to confront the witnesses against him or her. An autopsy report encompasses conclusions about cause, mechanism, and manner of death based on the pathologists specialized knowledge, and sheds valuable light on what happened at the time of a victims death. The scope can be profound, as in the case against Arnoldo Navarette, where the autopsy supposedly revealed which car passenger fired the fatal shot. Or the case of Greg Bright, who was exonerated after twenty-eight years in prison when the autopsy report revealed the true time of death and undercut the testimony of the States primary witness. The dead body is therefore like the victims last dying tale, which the pathologist translates into the autopsy reportreason enough to subject the preparer of such reports to cross-examination. When the Supreme Court inevitably faces this issue, it should hold that such reports are testimonial. The original conductor of the autopsy should be the one to testify, unless another pathologist offers an independent analysis not based on conclusions in the autopsy report. The Court should firmly clarify Williams and hold that the State cannot make an end-run around the Constitution. Such holdings would be entirely consistent with the Courts recent precedents on the Confrontation Clause. They would greatly protect the liberty of the accused and guarantee that no person is found guilty in violation of a foundational constitutional right.
275 276 277
Williams v. Illinois, 132 S. Ct. 2221, 2241 (2012). See U.S. CONST. art. VI, cl. 2. Williams, 132 S. Ct. at 2259 (Thomas, J., concurring in judgment).

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171_HIGLEY BOOK 1 FINAL_ON REMAND.

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See infra Part VI. See infra Part VI.

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Melendez-Diaz, 557 U.S. at 308. Id.

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Id. at 2709. Williams v. Illinois, 132 S. Ct. 2221, 2227 (2012).

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See infra Part III.B.

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Tales of the Dead

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New England Law Review

171_HIGLEY BOOK 1 FINAL_ON REMAND.DOCX (DO NOT DELETE)

Tales of the Dead

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See Zabrycki, supra note 20, at 1116.

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See supra notes 17591 and accompanying text.

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Yermish, supra note 133.

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