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Tales of the Dead: Why Autopsy ReportsShould Be Classified as TestimonialStatements Under the Confrontation

Clause

ANDREW HIGLEY

ABSTRACT

An autopsy report can be the most relevant piece of evidence inhomicide trials. Preparers of autopsy reports are no different than typicaleyewitness at the scene of the crime. A pathologist s specialized knowledgesees things in the dead body that others cannot, revealing such keyelements as cause and manner of death. The dead body is therefore like thevictims last dying tale, which the pathologist translates into the autopsyreport.

Though the United States Supreme Court has held that other forensicreports are testimonial statements under the Sixth AmendmentsConfrontation Clause, requiring the preparer of such reports to be availablefor cross-examination, the Court has been silent on autopsy reports.Federal circuit and state supreme courts are split on this issue. This Notewill argue that the Court should hear the issue and hold that autopsyreports are testimonial statements because they are a part of the core classof testimonial statements and their primary purpose is to establish a fact attrial. The original pathologist who conducted the autopsy and prepared thereport must testify unless a surrogate pathologist testifies from a basisindependent of the conclusions contained in the report. Also, when atestifying surrogate pathologist relies on an autopsy report but the reportitself is not submitted into evidence, that testimony should still beprohibited under the Confrontation Clause. Rigorous constitutionalscrutiny 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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172 New England Law Review v. 48 | 171

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 Navaretteand leaned into the drivers side window of Navarettes car,attempting to settle a long-running dispute.2Shots were fired from

inside the car in which Arnoldo Navarette sat in the passenger seat, killingReynaldo and badly injuring Reynaldos brother Daniel, who hadaccompanied him.3Navarette, the passenger, was charged with first-degreemurder and his key defense was that the person sitting in the drivers seatwas the real shooter.4To rebut this defense, the State offered testimony of aforensic pathologist who relayed the conclusions of the original pathologistwho had actually conducted the autopsy and prepared the report. 5 Thepathologist testified that the shots could not have come from the driver sseat because there was no evidence of soot or stippling on Reynaldosbody or clothing, which would have indicated a shot at close range.6Theprosecution admitted neither the report nor the testimony of the originalpathologist into evidence, and Navarrette was convicted.7

In many of the most vigorously contested homicide trials throughoutthe country, the autopsy report is the most vital piece of evidence. 8As thefacts of Navarette demonstrate, preparers of autopsy reports are nodifferent than crime scene investigators at the scene of the crime. 9 Apathologist, having specialized knowledge, notices things about the deadbody that others cannot, revealing such key elements as cause, mechanism,and manner of death.10This, in turn, makes the live, in-court testimony ofthe pathologist, or Medical Examiner (ME), essential to the reliability of

the findings, as the report forms the basis of the pathologist s expert

1 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. 12-

1256), 2013 WL 1718063 at *23.3 State v. Navarette, 294 P.3d 435, 436 (N.M. 2013).4 Id.5 Id.6 Id. at 437.7 Id. at 43637.

8 107 AM.JUR.Trials413,1(2013).9 See Navarette, 294 P.3d at 44243.10 D.P.LYLE,M.D.,ABAFUNDAMENTALS:FORENSIC SCIENCE 48 (2012).

O


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2013 Tales o f the Dead 173

opinion.11Therefore, there is a greater need that pathologistsconclusionsbe tested by effective cross-examination as mandated by the SixthAmendments Confrontation Clause.12

Over the last decade, the United States Supreme Court hasdramatically re-crafted the Sixth Amendments Confrontation Clausejurisprudence and has left a labyrinth of new case law in its wake.13 InCrawford v. Washington, the Court abandoned the indicia of reliabilitytestfor a new test barring testimonialstatements from being offered withoutopportunity for cross-examination.14 In subsequent cases, the Courtarticulated the primary purpose test to determine whether statementsmade in the course of a police investigation are testimonial. 15 In Melendez-Diaz v. Massachusetts, the Court held for the first time that forensic reportscould be testimonialin that case, a drug lab report.16 Extending thatholding, the Court held in Bullcoming v. New Mexico that the lab technicianwho 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 labtechnician could testify, but no single rationale held a majority.18

Applying this rapidly evolving case law, lower federal and state courtsare split on whether autopsy reports are subject to the ConfrontationClause, which would constitutionally require the pathologist whoprepared the report to testify at trial about his or her findings.19This Notewill argue that, in light of the Supreme Courts recent Confrontation Clausecase law, autopsy reports embody the core aspects of a testimonialstatement.20First, they fall within the core class of testimonial statements

11 See infra text accompanying notes4044.12 U.S.CONST.amend. VI. Cf. 40 AM.JUR.Trials501, 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).

20 Contra Carolyn Zabrycki, Comment, Toward a Definition of Testimonial: How Autopsy

Reports Do Not Embody the Qualities of a Testimonial Statement, 96CALIF.L.REV.1093,1094(2008)

(arguing that autopsy reports are not testimonial because they are not prepared by adversarial


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contemplated by the Supreme Court in Crawford and Melendez-Diaz.21Second, the primary purpose of autopsy reports in most cases is toestablish a fact relevant for trial, thus satisfying the Supreme Court s

primary purpose test.22

This Note further examines the connectedproblem of a pathologist testifying about conclusions contained in anautopsy report prepared by another where the report itself is not offeredinto evidence.23In light of Williams and its recent state court interpretations,this Note argues that this type of testimony is still a Confrontation Clauseviolation because the testimonys practical effect is that it is being offeredfor its truth, not merely to gauge the credibility of the experts testimony.24

Part I of this Note will provide an overview of autopsy reports in termsof what they are, who prepares them, and how are they used at trial. Part IIprovides an overview of the Supreme Courts Confrontation Clausejurisprudence, focusing on Crawford and major subsequent cases, includingthe Supreme Courts 2012 decision in Williams. Part III addresses how

lower federal and state courts have split on this issue, with particularemphasis on the most recent cases that discuss the primary purposetestand application of Williams. Part IV argues that autopsy reports are part ofthe core classof testimonial statements, as they fit within the rationalesof Crawford and Melendez-Diaz, and alternatively that they satisfy theprimary purposetest. Part V argues that when the surrogate pathologistprovides an independent opinion that does not merely rely on conclusionscontained in the autopsy report, there is no Confrontation Clause violation.Finally, Part VI argues that courts should not admit otherwise inadmissiblehearsay through the not-for-truthexpert testimony exception because itfunctionally 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).21 See infra Part IV.A; seeCrawford 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) (quoting Davis v.

Washington, 547 U.S. 813, 822 (2006)).23 See infra Part VI.24 See infra Part VI.


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body, or the examination of the dead.25A pathologist typically conductsan autopsy of a dead body.26For purposes of criminal investigations, it isimportant to note the difference between a clinical and a forensic

pathologist: a clinical pathologist examines dead bodies to study diseasesfor medical purposes, while a forensic pathologist is concerned primarilywith finding the cause or manner of death for legal purposes.27

Forensic pathologists conduct medicolegal autopsies, orexaminations where a person dies young, unexpectedly, or undersuspicious circumstances.28The word forensic is defined as belonging tothe courts of justice or to public debate and discussion.29For purposes of atrial, the forensic pathologist may shed light on issues such as cause ofdeath, mechanism of death, manner of death, or time of death. 30 Perhapsthe most important piece of evidence that the pathologist can provide in ahomicide case is cause of death.31 The National Association of MedicalExaminers (NAME) oversees standards and accreditation for forensic

pathologists.32

According to NAME performance standards, [p]erformingautopsies protects the public interest and provides the informationnecessary to address legal, public health, and public safety issues.33

When an individual dies under suspicious circumstances, a pathologistconducts a forensic autopsy that includes external and internalexamination of the body, toxicological (drugs or poison) tests, serological(blood) tests, and more.34The examination of the body includes, but is notlimited to: identifying the deceased; photographing the body, with andwithout clothes; removing all traces of evidence; x-raying the body;dissecting the body; and analyzing tissues through microscopic

25 LYLE,supra note10,at 45.26 Id. at 4648.27 Id. at 48.28 98 AM.JUR.3DProof 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-aef3-

abfc9bb80b92.pdf [hereinafter FORENSIC AUTOPSY PERFORMANCE STANDARDS].29 TrialsII, supra note12, 6.30 LYLE,supra note10,at 48.31 SeeTrials,supra note8.

32 See FORENSIC AUTOPSY PERFORMANCE STANDARDS, supranote 28.33 FORENSIC AUTOPSY PERFORMANCE STANDARDS, supra note28.34 LYLE,supra note10,at 50.


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examination.35 When all tests are complete, the pathologist assembles theautopsy report that details his or her examinations, tests, and opinion as tomanner and cause of death.36 Law enforcement determines whether to

pursue criminal charges based on the opinion as to manner of death.37

Mannerin this context is usually described in one of four ways: natural,unnatural, undetermined, or unclassified.38 An unnatural death typicallyresults 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 prosecutionscase; however, some pathologists encourage defense counsel to seek outand interview their own pathologists when preparing for a case, ifnecessary for effective cross-examination.40 The autopsy report itself, likemost written documents, is hearsay: an out-of-court statement offered toprove the truth of the matter asserted.41Therefore, the prosecution usually

calls the pathologist who prepared the report to testify at trial.42However,when a substitute pathologist appears at trial instead, courts have admittedthe report into evidence under either the business record or public recordhearsay exceptions.43 The Confrontation Clause becomes an issue whenthat scenario occurs.44

II. The Confrontation Clause and Testimonial Statements

The Confrontation Clause appears in the Sixth Amendment of theUnited States Constitution: In all criminal prosecutions, the accused shallenjoy the right . . . to be confronted with the witnesses against him.45The

35 Id.36 Id. at 53.37 TrialsII, supra note12, 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 TrialsII, supra note12.43 See id;Matthew Yanovitch, Comment, Dissecting the Constitutional Admissibility of

Autopsy Reports After Crawford, 57CATH.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 SeePeople v. Dungo, 286 P.3d 442, 44849 (Cal. 2012); State v. Kennedy, 735 S.E.2d 905,

917 (W. Va. 2012).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


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rule bars hearsayout-of-court statements offered to prove the truth of thematter asserted46from being offered by the prosecution against thedefendant when the declarant is unavailable to testify in court.47 It is

therefore a rule of exclusion.48

However, the Confrontation Clause differsfrom hearsay rules because even if a statement falls within one of the manypossible hearsay exceptions49 it will still be barred from trial if thatstatement is testimonialin nature.50This is true unless the defendant hadthe opportunity to confront the witness at a prior proceeding.51The clausesprimary objective is to ensure that the makers of accusatory statements willbe subject to cross-examination, thus promoting the procedural fairness ofa criminal prosecution.52

A. Crawford v. Washingtonand Introduction of the TestimonialStatement Requirement

Over the last decade, the Supreme Court has significantly shifted

Confrontation Clause jurisprudence, creating a labyrinth of new case law.53Prior to 2004, most hearsay statements survived Confrontation Clauseanalysis under the test established by Ohio v. Roberts: the statement wouldbe admitted if the prosecution could show that the declarant was trulyunavailable and the out-of-court statement bore adequate indicia ofreliability.54A statement would be deemed reliable if it was firmly rootedin a hearsay exception, or if there was a showing of particularizedguarantees of trustworthiness.55Functionally, the Roberts test was simply

(1965).46 MCCORMICK,supranote41;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).48 Id. at 325.49 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 note47,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.53 See infra Part II.A-B.

54 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


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a marriage between the hearsay rules and the Confrontation Clause,ensuring that most statements that met a hearsay exception wereadmitted.56

Under Crawford, the Court substituted the Roberts test for a newtestimonialrequirement.57The defendant, on trial for assault, attemptedto exclude statements made by his wife during a police interrogation thatwould have undermined his claim of self-defense.58The wife did not testifyat trial; however, the trial court admitted the statements under the hearsayexception for statements against a partys penal interest.59 The SupremeCourt held that the statements should not have been admitted because theyviolated the defendants Sixth Amendment right to confront the witnessesagainst him.60

Justice Scalia, writing for the Court, reasoned that the ConfrontationClauses actual concern is to prevent testimonial statementsthoseuntested by cross-examinationfrom being offered at criminal trials.61

Scalia criticized the Roberts test because it was concerned only withsubstantive reliability; he concluded that the Confrontation Clause isprimarily concerned with procedural reliability: the method by which thestatements are tested in court.62Focusing on the meaning of witness inthe Confrontation Clause, he argued that not all witnesses are equal;instead, the clause is concerned with those who bear testimony,definingtestimony as [a] solemn declaration or affirmation made for the purposesof establishing or proving some fact.63

Justice Scalia identified a core class of testimonial statements: expartein-court testimony or its functional equivalentthat is, material suchas affidavits, custodial examinations, prior testimony that the defendantwas 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).60 Crawford, 541 U.S. at 68.61 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.).63 Id. at 51 (quoting 2 N.WEBSTER,AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE

(n.p.1828)).


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would reasonably expect to be used prosecutorially.64 Also included in thiscore class were any formalized materials such as affidavits,depositions, prior testimony, or confessions.65Despite this earth-shaking

ruling, the Court left for another day any effort to spell out acomprehensive definition of testimonial.66

B. Introduction of the Primary Purpose Test

Crawford was a watershed moment for Confrontation Clausejurisprudence, but because of the Courts minimal guidance, it brought awave of uncertainty as to what statements ranked as testimonial.67 Onesuch ambiguity was police interrogations resulting from emergency 911calls, traditionally admitted at trial under either the present senseimpression or excited utterance exception.68Two consolidated cases on thisissue brought about the Supreme Courts introduction of the primarypurposetest.69

In Davis v. Washington, the declarant made statements to a 911dispatcher describing the events of a domestic disturbance involving herformer boyfriend as they were actually happening.70 The Courtconcluded the statements were nontestimonial because the circumstancesobjectively indicated that the primary purpose of the interrogation [was]to enable police assistance to meet an ongoing emergency.71In Hammon v.Indiana, by contrast, the police responded to a domestic disturbance calland interviewed the victim who signed a battery affidavit while theperpetrator was in another room.72 The Court held that those statementswere testimonial because the emergency had dissipated when the policearrived and, in obtaining the statement, the officers were trying to ascertainwhat happened as opposed to what is happening.73 Therefore, the

64 Id. (emphasis added).65 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.).68 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 groundsby Davis v. Washington, 547

U.S. 813, 834 (2006); seeFED.R.EVID.803(1)(2).69 See Davis v. Washington, 547 U.S. 813, 81722 (2006).70 Id. at 827.

71 Id. at 822.72 Id. at 81920.73 Id. at 830.


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primary purpose of the interrogation [was] to establish or prove pastevents potentially relevant to later criminal prosecutions.74

Michigan v. Bryant expanded the scope of the primary purpose test

beyond cases involving ongoing emergencies.75In Bryantthe police, whileat the scene of a fatal shooting, interrogated the victim who identified theshooter and where he lived.76 The Court held that the statements werenontestimonial because the purpose of the interrogation was to catch an at-large shooter.77 In reaching this conclusion, the Court indicated that anongoing emergency was only one factor in determining the statementsprimary 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 testimonialrequirement would not prevent courtsfrom admitting business or public records that were not prepared by lawenforcement.79The Supreme Court first confronted this issue in the contextof forensic reports in Melendez-Diaz v. Massachusetts.80 The defendant inMelendez-Diaz had been convicted of distributing and trafficking cocaine. 81After the defendants arrest, the police seized substances found on him andsent them to a state laboratory for testing.82The test came back positive forcocaine.83 At trial, the prosecution introduced into evidence threecertificates of analysispertaining to the test, but did not call the analystwho conducted the test to testify.84

The Supreme Court held that the certificates were analogous to a

74 Id. at 822.75 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 excep t 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, at16,18;see also Pamela R.

Metzger, Cheating the Constitution, 59 VAND.L.REV.475,476(2006).80 557 U.S. 305, 307 (2009).81 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).83 Melendez-Diaz, 557 U.S. at 308.84 Id.


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witness, and therefore are testimonial.85 The certificates were almostidentical to an affidavit, thus falling within the core classof testimonialstatements.86 Writing for the Court, Justice Scalia reasoned that the

certificates were identical to live, in-court testimony, doing preciselywhat a witness does on direct examination. 87 The Court rejected theargument that the statements were not accusatory because they weremerely inculpatory but did not directly accuse the defendant. 88This wouldhave been a rigid formulation of the Confrontation Clause, and would havecreated a whole class of witnesses who were helpful to the prosecution yetimmune from confrontation.89By rejecting the States arguments and thedissenting opinions, the Court expanded the clauses reach, declaring thatthe witness does not actually have to observe the crime and that thestatements do not have to be made as part of a police interrogation.90

The Court went on to state that requiring cross-examination of labanalysts is also solid public policy, as the prospect of confrontationwill

prevent fraudulent and incompetent analysis.91

The analysts competence,honesty, proficiency, and methodology can be tested by cross-examinationensuring a fair trial.92

2. Bullcoming v. New Mexico

In Bullcoming v. New Mexico, the Supreme Court further refined the rulefrom Melendez-Diaz and held that a surrogate lab technician could nottestify in place of the lab technician who conducted the original tests andwrote the forensic report.93There, the defendant was charged with drivingwhile intoxicated (DWI), and the principle piece of evidence against himwas a certificate prepared by a forensic analyst that stated that thedefendants blood-alcohol level was above the legal limit.94 At trial, the

prosecution did not call the lab technician who prepared the report, butinstead called a surrogate lab technician who neither observed nor

85 Id. at 311.86 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 specificreport in this case was entitled Report of Blood Alcohol Analysis. Id.

94 Id.


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reviewed the actual blood analysis.95 Nevertheless, the New MexicoSupreme Court upheld the defendants conviction, stating that thesurrogate 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 themachine that simply spat out numbers.97 Instead, the Court determinedthat operating the machines required specialized skill and knowledge,requiring the lab technician to verify the integrity and validity of the testsin the report.98These representations, relating to past events and humanactions not revealed in raw, machine-generated data,were ripe for cross-examination.99Also significant was the fact that the original lab technicianhad been placed on unpaid leave: cross-examination could have revealedissues relating to competency.100

Adding one other wrinkle, the plurality opinion expanded the

primary purposetest to forensic reports, citing the test in footnote six asthe main test to determine whether a statement is testimonial. 101However,Justice Clarence Thomas, though concurring in judgment, did not concur inthe footnote, leaving the expansion of the primary purposetest one voteshy of a Supreme Court majority.102

3. Williams v. Illinois

In 2011, the Court was confronted with whether the contents of a DNAreport could be disclosed at trial for the limited purpose of evaluating thebasis of an expert witnesss testimony.103Under Federal Rule of Evidence703, otherwise inadmissible hearsay can be disclosed at trial for the limited

95 Id. at 2712.96 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).102 Id. at 2709.103 Williams v. Illinois, 132 S. Ct. 2221, 2227 (2012).


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purpose of evaluating the credibility of an expert witness s opinion.104Under the language of the federal version of the rule, a court can onlyallow disclosure of hearsay statements if the statements probative value

substantially outweighs their prejudicial effect.105

However, somecommentators argue that it is legal fiction to assert that these statementsare not being offered for their truth, noting, the jury must make apreliminary judgment about whether [the out-of-court statement] istrue.106 Prior to Williams, there was concern among some commentatorsthat this exceptionallowed courts to circumvent Crawfords reach; if thereport was not admitted for its truth, then it could be classified astestimonial.107

In Williams, a key piece of the prosecutions evidence was a bloodsample that was tested to determine whether it matched DNA taken fromthe victims vaginal swab sample.108The expert who testified did not workat Cellmark, the lab that conducted the test, yet testified as to his

conclusion that there was a DNA match.109

A plurality of four concludedthat the experts references to the Cellmark report did not violate theConfrontation Clause because the report was not offered for its truth.110Even assuming the report was offered for its truth, the plurality still foundno Sixth Amendment problem because Cellmark did not know the name ofthe accused and thus the report did not pertain to a targetedindividual.111

Justice Thomas concurred in the result, making five votes, but did notjoin in the reasoning.112Justice Thomas concluded that in order to evaluatethe experts opinion, one must first assess whether the disclosed hearsay istrue.113However he joined in the outcome, stating that the Cellmark reportwas not formalized enough, as it was neither sworn nor a certified

104 FED.R.EVID.703.105 Id.106 DAVID H.KAYE ET AL.,THE NEW WIGMORE:ATREATISE ON EVIDENCE:EXPERT EVIDENCE

4.10.1 (Richard D. Friedman ed., 2d ed. 2011).107 SeeJeffery L. Fisher, The Truth About the Not for Truth Exception 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, 80FORDHAM L.REV.959,1001(2011).108 Williams, 132 S. Ct. at 2227.109 Id. at 222930.110 Id. at 223335 (plurality opinion).

111 Id. at 2243.112 Id. at 2255 (Thomas, J., concurring in judgment).113 Id. at 2257.


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declaration of fact.114Justice Kagan dissented, viewing the case as open-and-shut.115She recognized that the pluralitys approach would swallowthe rule from Melendez-Diaz: If the Confrontation Clause prevents the

State from getting its evidence in through the front door, then the Statecould sneak it in through the back.116 She also rejected the targetedindividual argument because many cross-examination concerns relate tocareless or incompetent work, rather than personal vendettas.117With noreasoning representing a majority, Williams maintains the status of theConfrontation Clause as in flux, to the certain disappointment of those whowished 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 onshifting sand, and the issue of whether the Confrontation Clause applies toautopsy reports is even more uncertain: There is currently a split in boththe federal courts, though some of the cases are pre-Melendez-Diaz,119and inthe highest state courts.120 The debate has intensified in recent statesupreme court decisions as they attempt to reconcile with Williams.121

In the pre-Melendez-Diaz world, some argued that autopsy reports were

114 Williams, 132 S. Ct. at 2260.115 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/

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), andPeople v. Leach, 980 N.E.2d 570, 590 (Ill. 2012) (holdingthat autopsy reports are not testimonial).

121 See infra Part III.B.


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admissible, despite Confrontation Clause challenges, under either thebusiness record or public record exceptions to hearsay, like many other labreports.122For instance, the First Circuit noted that an autopsy report is a

business record because it is made in the ordinary course of business by amedical examiner that is required by law to memorialize what he or shesaw or did during an autopsy.123 Autopsy reports had also beenconsidered nontestimonial because pathologists are not adversegovernment agents and the reports are not prepared in response to policeinterrogation.124

Alternatively, a public policy rationale existed in many circles: theconcern that constitutionally requiring the original pathologist to testify attrial inhibits prosecuting cold cases.125 Cold cases are those where theinvestigative trail is exhausted but the case is reopened years later after thediscovery of new evidence, which renders prosecution feasible. 126 Theconcern is that the passage of time may render the original pathologist

unavailable for trial.127

Further, even if the original pathologist is availableto testify, he or she may have difficulty remembering the autopsy, andunlike many forensic reports, autopsies cannot simply be replicated.128

On the other side of the debate lie the rationales behind Melendez-Diaz.129The constitutional value of requiring that forensic lab technicians beavailable for cross-examination extends easily to autopsy reports.130Supporters of higher Confrontation Clause scrutiny note that autopsyreports are identical to the core class of testimonial statements

122 SeeYanovitch, supra note43,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).123 United States v. De La Cruz, 514 F.3d 121, 133 (1st Cir. 2008).124 Zabrycki, supra note20,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 note20,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.OFJUST. (July 15, 2008),

http://www.nij.gov/journals/260/what-is-cold-case.htm.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)).128 Id.

129 SeeMetzger, supra note 79 (discussing the constitutional need to have effective cross-examination of forensic testimony).

130 See Burke, supra note21,at1920.


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contemplated in Crawford: An autopsy report almost always contains bothwell-documented observations (e.g., the victim suffered blunt force traumato 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 fromthe deceaseds body).131 Further, the purpose of many autopsies is todetermine whether to prosecute, and pathologists often work hand-in-hand with police.132 Realistically, autopsy reports will always beconsidered to be prepared for prosecutorial (or litigation) purposes.133

B. Recent State Supreme Court Decisions

Autopsy reports have received plenty of attention from state supremecourts since Williams.134 One of the most high profile cases is People v.Dungo in California.135 There, the court held that there was noConfrontation Clause violation when the pathologist testified aboutfindings contained in the autopsy report, even though the preparer of the

report did not testify.136 At the defendants homicide trial, the defendantdid not dispute that he had strangled the victim to death, but the partiesdisagreed as to whether or not the strangling lasted two minutes and wastherefore with malice.137 At a pre-trial evidentiary hearing, the defensecounsel uncovered that the original pathologist had been fired from aformer coroners position, resigned from another, and that prosecutors hadpreviously refused to use him for trial because of his supposedincompetence.138 Over objection, testimony pertaining to findings in theautopsy report was admitted, and the defendant was convicted of second-degree murder.139

The court held that the testifying pathologist s statements describingconditions of the body and summarizing the former pathologists

conclusions on cause of death did not violate the Confrontation Clause.140

The court rejected the defendants arguments that the statements were

131 Id. at 18;see also Washington v. Crawford, 541 U.S. 36, 52 (2004).132 Burke, supra note21,at 19.133 Steven N. Yermish, Melendez-Diazand the Application of Crawfordin 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. at44246.138 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.


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testimonial because a detective was present during the autopsy, theautopsy was mandated by statute, and the original pathologist wasrequired to notify law enforcement about suspicious causes of death. 141

Regarding primary purpose,the court noted there are reasons to performan autopsy not limited to criminal investigation,including insurance orto comfort a grieving family.142As such, the court seemed to have appliedan exclusive purpose, rather than a primary purposetest.143

Similarly, the Illinois Supreme Court found no Confrontation Clauseviolation in a surrogate pathologists testimony.144Following Williams, thecourt reasoned that because the pathologist acts in the interest of publichealth, and not as an accusatory agent, the person has no incentive toproduce anything other than a scientifically sound and reliable profile. 145Like in Dungo, the court said that the reports primary purpose is not foruse in a criminal trial, but for other civilreasons.146Also, the court citedthe 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. Kennedyrecently held that autopsy reports are testimonial statements.148 Thedefendant argued that he had not murdered the victim by running her overwith a car, but instead that his wife killed her with a rock. 149The autopsyreport stated that the cause of death was multiple blunt force trauma tothe head.150However at trial, a different pathologist testified that basedon opinions contained in the report and personal observations of autopsyphotos, the victims injuries were notconsistent with being struck by a rockand it was more likely that she was run over by a car.151

Years later on appeal, the State argued that based on Williams, thepathologist could use the non-admissible autopsy report as the basis for his

opinion.152

The court split the difference: the pathologists testimony about

141 Id.142 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.


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being run over (indicating tire markings on the victims clothes) was hisindependent opinion based on observing the autopsy photos; however histestimony regarding the contents of the autopsy report was held in error

because the pathologist merely reiterated the contents of the autopsyreport.153The court held that autopsy reports are categorically testimonialunder the primary purpose test because MEs, by state statute, areresponsible for [t]heformulation of conclusions, opinions or other testimony injudicial proceedings.154 Applying the statute, the court determined thatunder the primary purpose test, there is no question that the report istestimonial.155

Similarly, the New Mexico Supreme Court in State v. Navarettegrantedthe defendant a new trial after holding that a surrogate pathologiststestimony about conclusions contained in an autopsy report violated theConfrontation Clause.156The disputed factual issue was whether the fatalshots came from the passenger seat (where the defendant was sitting) or

from the drivers seat.157

The autopsy report was not submitted intoevidence, but the surrogate pathologist testified that, based on conclusionscontained in the report, the fatal gunshots came from the passenger seat.158In holding that the conclusions from the autopsy report were testimonial,the court referenced many rationales from the Melendez-Diaz progeny ofcases: Inquiry into [the pathologists] training, the equipment used toarrive at [the] subjective conclusion, whether the evidence of soot orstippling might have been masked by blood, or any other variables thatwould influence [the] decision should have been tested in the crucible ofcross-examination.159

ANALYSIS

IV. Autopsy Reports Embody the Core Aspects of a TestimonialStatement and Should Be Subject to the Confrontation Clause.

The remainder of this Note will argue that autopsy reports aretestimonial and should categorically be subject to the ConfrontationClause160because they are part of the core class of testimonial statements

153 Id. at 922.154 Kennedy, 735 S.E.2d at 917 (emphasis supplied)(citing W.VA.CODE 61-12-3(d) (2010)).155 Id.156 State v. Navarette, 294 P.3d 435, 44043 (N.M. 2013).157 Id. at 43637; see supra notes 27 and accompanying text.

158 Navarette, 294 P.3d at 43637.159 Id.at 443; Melendez-Diaz v. Massachusetts, 557 U.S. 305, 317 (2009).160 Contra Reid Allison, Student Article, Confronting the Dead: The Testimonial Status of


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contemplated by the Court in Crawford,161and their primary purpose is toestablish facts that can be used by the prosecution at a future judicialproceeding.162It goes without saying that the Court has not provided clear

guidance on the Confrontation Clause.163

With this in mind, autopsyreports are a prime vehicle to reaffirm the principles of Crawford,Melendez-Diaz,and their progeny, as there is a growing demand that the Court hearthe issue.164Yet considering how the Court has previously ruled in thesecases, [u]nder our Confrontation Clause precedents, this is an open-and-shut case.165

A. The Rationale of Melendez-Diazand its Progeny Apply to AutopsyReports.

The Supreme Court should hold that, like other forensic reports,autopsy reports are part of the core class of testimonial statements166because they have an evidentiary purpose and are prepared under

circumstances which would lead an objective witness reasonably to believethat [they] would be available for use at a later trial.167Whether a report ordocument has been created and prepared for trial is the most substantialfactor in determining whether a statement is testimonial.168 As such,Melendez-Diaz has put to rest any argument that written forensic reportscannot be subject to the Confrontation Clause.169 These reports are oftenprepared with an eye toward trial, and thus cannot fall under the businessrecord 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 theSupreme 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 Cross-

Examination: Reconciling the Supreme Courts Recent Edicts on the Sixth Amendments

Confrontation Clause, 65 BAYLOR L.REV.255,288(2013).169 See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 321 (2009).

170 Id. The lab reports inMelendez-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)).


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happened,then the Confrontation Clause must apply.171The same is trueof autopsy reports,172 which memorialize in writing key issues such ascause 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 forensicevidence introduced at trial.175Testimony pertaining to autopsy reports isno exception.176 Like the cross-examination of a DNA analyst, the cross-examination of a pathologists credentials of methodology for conducting atest is beneficial to the truth-seeking process.177 One case is particularlyillustrative of the great weight juries place on a pathologist s testimony: In2007, the Mississippi Supreme Court reversed Tyler Edmondss murderconviction after concluding that the pathologists testimony was based onmere 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 afterhis new attorney took a closer look at a key autopsy report.180The Stateskey 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

171 Id. at 317.172 See infra Part IV.B.173 LYLE,supra note10.174 See infra text accompanying notes179181.175 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 isnot 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 12.176 See, e.g.,Joneil Adriano, Pathologists Work Raises Questions, AC360BLOGS (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)).177 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).178 Edmonds v. State, 955 So. 2d 787, 792 (Miss. 2007).

179 KAREN HOUPPERT, CHASING GIDEON: THE ELUSIVE QUEST FOR POOR PEOPLES JUSTICE

105, 164 (2013).180 Id. at 16367.


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he examined the body.181 The original pathologist told the new attorneythat this meant that the victim had been killed between 5:00 a.m. and 8:00a.m.182This inconsistency was a key factor in the cases reconsideration and

eventual dismissal years later.183

Cases like these showcase the powerfuleffect that a pathologists autopsy report can have on a casesimilar to theeffect of a DNA or drug lab test.184

People v. Dungo, discussed above, demonstrates the importance ofcross-examining the pathologist who actually conducted the autopsy.185Recall that questions arose about the pathologists competence: He lied onhis rsum about work done in another county; he was subsequently let gounder a cloud of suspicion; numerous news articles questioned hisincompetence; and some prosecutors had refused to call him to testify as aresult.186 The rationale of Melendez-Diaz accounts for the value of cross-examining the preparer of the report on his or her skillsets: Confrontationis designed to weed out not only the fraudulent analyst, but the

incompetent one as well.187

In Dungo, the prosecution wanted to avoidsuch weeding out,and the Court accepted this despite its inconsistencywith the rationales supporting confrontation.188This presents a significantproblem and circumvents the Constitution: By not offering a report intoevidence, but instead having another person testify about its contents, theprosecutor could choose the analyst-witness of his [or her] dreams.189 If

181 Id. at 164.182 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.3d30, 73 (D.C. Cir. 2011).185 See supra notes13540 and accompanying text.186 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 . . . .).187 Melendez-Diaz v. Massachusetts, 557 U.S. 305, 319 (2009).188 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 45455.189 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 . . . ?).


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the right to confront the witnesses against you means anything, should it atleast mean the opportunity to test the competency of your accuser throughcross-examination?190 The answer should be yes when human judgment

and skill [are] involved,as you cannot trust the reports reliability withoutthe preparers availability for confrontation.191

Some of the biggest objections to holding that autopsy reports aretestimonial are the practical concerns it may raise: What about prosecutionsbrought years later?192 Is it cost efficient or worth the time to flypathologists around the country to trials and thus interrupt their work?Furthermore, what if the original pathologist has since died? 193Cold casesbrought years later impose the largest public policy hurdle because if theoriginal pathologist has died, an autopsy on a decomposed body would beimpractical.194Often times though, objective markers195 such as autopsyphotos and other raw data may be available for a new, surrogatepathologist to conduct independent analysis.196Also, more resources can be

appropriated to ME offices to account for the frequent flyer miles they mayincur.197

Some would argue that it is not worth having the original pathologisttestify because he or she may not even remember a particular autopsyperformed years ago.198 Accepting this argument would allow theprosecution 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 note55(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. SeeFORENSIC AUTOPSY PERFORMANCE STANDARDS, supra

note28,at 10.192 See Yanovitch, supra note43,at 269.193 Zabrycki, supra note20,at 1114.194 See id.195 State v. Navarette, 294 P.3d 435, 443 (N.M. 2013).196 SeeJesse J. Norris, Who Can Testify About Lab Reports After Melendez-Diazand

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, 75U.S.L.W. 3438 (U.S. Feb. 20, 2007) (NO. 06-8777), 120 HARV.L.REV.1707,1713(2007).

198 SeeZabrycki, supra note20,at 1116.


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when he or she reviews the report for trial.199 Further, cross-examinationhas the benefit of testing the pathologists general competency andtraining.200Without 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 theConstitution provides a clear command, weighty societal costs areunimportant when enforcing a constitutional directive.203The Constitutioncontains a set of principles that are intended to shield the Court from thepressure of current trends.204The balancing has already been done, and theright to confront witnesses is a clear command that the judiciary should notoverturn without sound, constitutional supportnot merely because itinconveniences the governments case.205

There is also the argument that pathologists are not actual accusersfor constitutional purposes because they do not know the identity of the

accused at the time of the autopsydrawing an analogy from the Williamsplurality that held that DNA tests are not testimonial because they do nottarget a specific individual.206Such an argument appears to shoot straight,but in fact misses the target; human skill, judgment, and competency, notthe off chance that the pathologist might have it out for the named accused,are the primary concerns behind confrontation.207Also, questions about the

199 Burke, supra note21,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).200 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 note55,at 1030(arguing that the right to confront witnesses should

not be compromised in this new age of balancing).203 See Burke, supra note21,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 note55,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 anyonesguess. Id. at 2273 (Kagan, J., dissenting).

207 See supra notes 17591 and accompanying text.


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cause or manner of death, though maybe not directly inculpating, areessential to proving guilt in a murder case.208The argument is essentiallythat 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 Crawfordspecifically overruled.209

B. The Primary Purpose of Forensic Autopsy Reports Is to Establish aFact Relevant to a Future Judicial Proceeding.

Not only do autopsy reports qualify as core testimonial statementsunder Crawford, but they also satisfy the primary purpose test.210Whether this is now the controlling test remains an open question as onlyfour Justices signed onto footnote six of Justice Ginsburg s opinion inBullcoming.211Nevertheless, courts have applied and relied on the primarypurpose test when faced with autopsy reports.212 These reports shouldcategorically satisfy the test because they are highly relevant to criminal

proceedings; pathologists are well aware that they might be used at trial;213and state statutes and actual practice demonstrate how closely linked MEoffices are to law enforcement and the investigative process.214

First, there is no doubt that autopsies can provide a relevant fact fortrial: In fact, as some of the cases previously discussed indicate, they canprovide the most relevant fact for trial (cause or manner of death).215Thusthere is growing pressure on defense attorneys to more thoroughly cross-examine the preparers of such reports.216

Next, pathologists are fully aware that their reports may be used bylaw enforcement as part of an investigation, and thus they may reasonablybelieve that the reports may be used later at trial.217Pathologists typicallyconduct a forensic autopsy report because of suspicious circumstances

208 See LYLE,supra note10;Trials, supra note8.209 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).211 See Bullcoming v. New Mexico, 131 S. Ct. 2705, 2714 n.6 (2011).212 SeeState v. Kennedy, 735 S.E.2d 905, 917 (W. Va. 2012).213 See infra text accompanying notes21516.214 See infra text accompanying notes22224.215 Trials, supra note8;see LYLE,supra note10.216 See Trials II, supra note12, 4; cf. Garrett & Neufeld, supra note175,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 theirown).

217 Yermish, supra note133.


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surrounding a death, and pathologists typically go to the scene to gatherinformation on whether a homicide potentially occurred.218 Often, lawenforcement requests the autopsy.219 Some have observed that [t]he

medical investigators job is to assist the police detectives in gatheringevidence around the body and to collect medicolegal evidence on thebody.220Any objective onlooker may conclude that the MEs office is justanother investigative arm of law enforcement.221

State statutes pertaining to MEs also demonstrate that forensic autopsyreports have the primary purpose of establishing facts relevant at trial. 222The West Virginia Supreme Court in State v. Kennedy and the EleventhCircuit in United States v. Ignasiak relied on state statutes for guidance.223For instance, the court in Ignasiak found it essential that the MEs officeexists within the Department of Law Enforcementby statute in Florida.224The Medical Examiners Commission itself must include one state attorney,one public defender, and one sheriff.225The court in State v. Kennedylooked

to West Virginias state statute, which stated that the purposesof the MEincluded the performance of death investigationsand the formulation ofconclusions, opinions or testimony in judicial proceedings.226 Even wherethe purpose is not explicit, other states require MEs to cooperate with lawenforcement investigations.227For example, Iowa requires the state ME toprovide assistance, consultation, and training to county medicalexaminers and law enforcement officials.228Conversely, law enforcementin Massachusetts is required to cooperate at the behest of the ME in the

218 Id. See Burke, supra note21,at 19(observing that MEs often work hand-in-hand with

the police).219 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 note12, 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 theMelendez-Diaz dichotomy).222 See infra text accompanying notes22325.223 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).225 Ignasiak, 667 F.3d at 1231; 406.02(Westlaw).226 W. VA.CODE 61-12-3(d) (West, Westlaw through 2013 legislation) (emphasis added);

Kennedy, 735 S.E.2d at 917.227 Yermish, supra note133.228 IOWA CODE ANN.691.6(West2010);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 allstate police laboratories for conducting tests.229 Thus, simple realities ofpractice and language from state statutes reaffirm the conclusion that,

categorically, the primary purpose of autopsy reports is to prove a relevantfact at a later judicial proceeding.230

One of the major arguments against classifying autopsy reports astestimonial under the primary purpose test is that they serve otherpurposes as well.231The court in People v. Dungo noted that despite a statestatute requiring MEs to report to law enforcement if they believe the deathis a homicide, autopsies have other purposes not related to criminalinvestigation.232Autopsies may be useful to investigate deaths unrelated tocriminal activity, such as those by alcoholism or contagious diseases, andcan be used for other purposes, such as by an insurance companyattempting to determine if a death is covered by its policy.233However, thisargument distorts the primary purpose testpreparation for potential

use at trial must be the primary purpose, not the only purpose.234

Just as astatement to the police can serve multiple purposes, so can an autopsy. 235Also, the courts analysis failed to distinguish between clinical (forprimarily medical research) and forensic (death investigation for legalpurposes) autopsies.236Only forensic autopsies are at issue, and based onthe close practical and statutory link between ME offices and lawenforcement, the primary purpose of forensic autopsies is to documentfacts with an eye toward trial.237

The second variation of the other purpose argument is that whileautopsy reports could be testimonial in some instances, there should be nocategorical rule because it would paint too broad a brush.238 Onefederal appeals court decision after Melendez-Diaz adopted such an

229 MASS.GEN.LAWS ch. 38, 5 (2010).230 See supra notes21724 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 note199,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).

236 See LYLE,supra note10.237 See supra notes21020 and accompanying text.238 Allison, supra note160.


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approach.239Supporters of this argument fear that researchers who conductautopsies to study disease, or for other purely scientific reasons, will besubject to confrontation when in fact their research was never

contemplated as a part of an investigation.240

But this argument fails toconsider that the distinction is already drawn between forensic and clinicalautopsies.241Clinical autopsies are only conducted for the study of diseaseand not for any legal purpose: Thus, the categorical reach only extends toall forensic autopsies.242 More primary purpose analysis should not benecessary.243 A case-by-case analysis would only be a repackaging of theother purpose argument; it would provide a court with too easy anavenue to take away a defendants right to confrontation.244

V. Surrogate Testimony Is Only Proper Under Bullcoming v. NewMexicoWhen the Surrogate Pathologist Reaches a Conclusion Based

on the MEs Own Independent Analysis.

Allowing a surrogate pathologist to testify about a conclusion based onhis or her own independent analysis of nontestimonial evidence can alsoalleviate concerns about the side effects of holding autopsy reports astestimonial.245 Though Bullcoming requires the person who actuallyconducted the test to be present at trial, it leaves the door open forsurrogates to testify when they reach conclusions based on their ownindependent 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 note160.241 See LYLE,supra note10.242 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 note133 (recognizing

that an MEs report should likely always be considered prepared for purposes of prosecution).244 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 non-testimonial data should be allowed).

246 See id.


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accompanying other types of evidence,247 there are limited circumstanceswhen this is an option, such as in State v. Kennedy.248There, the testifyingpathologist did not conduct the autopsy yet reached some conclusions

from observing photographs of the victims body, which was nottestimonial evidence.249Dr. Sabet unequivocally testified that these wereadditional opinions he derived from inspection of the clothing and autopsyphotographs; they are mentioned nowhere in the autopsy report itself.250

Contrast this with Navarette, where the surrogates testimony on thesoot and stippling was improper because such a conclusion could not bedetermined with the naked eye.251Instead, actual inspection of the bodywith scientific equipment was required: Unlike a simple observation ofphotographs, the autopsy findings do not involve objective markers thatany third party can examine to express an independent opinion as to theexistence or non-existence of soot or stippling.252Independent conclusionsare proper only when the pathologist can make conclusions based on his or

her own observations of autopsy photographs, and not when they simplyparrot the opinion or subjective statement of the pathologist who . . . tookthe photographs.253 Well-preserved photographs of the body maytherefore overcome constitutional obstacles, as opinions based on them willbe 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),

withZabrycki, supra note20,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).

248 State v. Kennedy, 735 S.E.2d 905, 921 (W. Va. 2012).

249 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).254 Cf. Norris, supra note196,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 Experts

Testimony Should Not Be Disclosed at Trial Pursuant to the Not-for-TruthException to Hearsay.

Not only should autopsy reports categorically be held as testimonialstatements, but under Williams v. Illinois, a surrogate pathologist should notbe able to testify about the contents of an autopsy report that was notsubmitted into evidence but formed the basis for the pathologiststestimony.255 Such an exception would make little sense and leave theguarantee of confrontation meaningless: If the Confrontation Clauseprevents the State from getting its evidence in through the front door, thenthe State could sneak it in through the back.256Just as five Justices rejectedsuch a trickin Williams regarding DNA lab reports, so too should lowercourts bar autopsy reports from being brought in through the back door.257

Federal Rule of Evidence 703258and parallel state rules259have been aconcern since Crawford.260Under Rule 703, a court may allow the admission

of otherwise inadmissible hearsay for the limited purpose of evaluating thecredibility of an expert witnesss testimony, but there is a legal fiction thatit is not to be considered for its truth.261Since Crawford, lower courts havefrequently employed this approach to admit testimonial statements.262Thisnot-for-truth exception provides an improper end-run for theprosecution to admit into evidence hearsay that violates the ConfrontationClause.263 Generally, the prosecution intends for the jury to hear thehearsay statements for the truth of the matter asserted.264 Whenever thejury must assess the credibility of the expert who relies on an out-of-courtstatement, the jury must make a preliminary judgment about whether

255 Infra text accompanying notes 25672.256 Williams v. Illinois, 132 S. Ct. 2221, 2272 (2012) (Kagan, J., dissenting).257 SeeNavarette, 294 P.3d at 44344.258 FED.R.EVID.703.259 See, e.g., NMRARULE 11-703(parroting the federal rule).260 See Fisher, supra note107.261 KAYE ET AL.,supra note106, 4.10.1, at 19697.262 See Volek, supra note107,at 993.263 See Fisher, supra note107,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 note107 (arguing that Rule 703 should

not be a route to admit testimonial hearsay).264 See Fisher, supra note107,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 . . . .).


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[the out-of-court statement] is true.265

A majority of five Justices in Williamsconcluded that DNA reports arefunctionally admitted for their truth,266and two state courts have rightfully

embraced the same conclusion for autopsy reports.267The court in State v.Kennedy did not follow the pluralitys not-for-truth lead, and insteadsimply applied the primary purpose test to conclude that the report wastestimonial.268 Specifically addressing the not-for-truth exception, thecourt in State v. Navarettenoted that the exception could not apply in theConfrontation Clause challenge because a majority of the Supreme Courthad rejected that approach.269The trial record in that case revealed that thetrial judge never conducted a Rule 703 balancing test, but that the courtnevertheless endorsed a bright-line constitutional rule that requires theout-of-court declarant to be subjected to cross-examination . . . .270 Theconstitutional right to confront an opposing witness is best protected ifcourts in the future also recognize this bright-line rule and refuse to

accept the nuanced not-for-truthexception.271

Though a defendant can ask for a limiting instruction under FederalRule of Evidence 105,272such an instruction will do little to stop a jury fromconsidering hearsay for its truth.273 Limiting instructions are extremelyconfusing to both laypersons and jurists, and would not repair theprejudicial damage.274Some might also argue that Rule 703s balancing test

265 Williams, 132 S. Ct. at 2257 (Thomas, J., concurring) (quoting KAYE ET AL.,supra note106,

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 alsoState v. Kennedy, 735 S.E.2d 905,

917, 919 (W. Va. 2012).268 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).269 State v. Navarette, 294 P.3d 435, 442 (N.M. 2013).270 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.).271 See supra notes20203 and accompanying text.272 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 SeeFisher, supra note107,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]).


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is a safeguard;275 however, the Constitution supersedes anycongressionally enacted rule of evidence.276 Besides, we cannot possiblytrust judges to adequately protect a defendants clear constitutional right:

[The] balancing test is no substitute for a constitutional provision that hasalready struck the balance in favor of the accused.277

CONCLUSION

The Confrontation Clause of the Sixth Amendment embodies one ofthe core mechanisms for ensuring that a defendant is given every chance toprotect his or her liberty against accusations from the State. At thefoundation of a fair trial and the basic notions of justice lies a defendant sright to confront the witnesses against him or her. An autopsy reportencompasses conclusions about cause, mechanism, and manner of deathbased on the pathologists specialized knowledge, and sheds valuable lighton what happened at the time of a victims death. The scope can beprofound, as in the case against Arnoldo Navarette, where the autopsysupposedly revealed which car passenger fired the fatal shot. Or the case ofGreg Bright, who was exonerated after twenty-eight years in prison whenthe autopsy report revealed the true time of death and undercut thetestimony of the States primary witness. The dead body is therefore likethe victims last dying tale, which the pathologist translates into theautopsy reportreason enough to subject the preparer of such reports tocross-examination.

When the Supreme Court inevitably faces this issue, it should hold thatsuch reports are testimonial. The original conductor of the autopsy shouldbe the one to testify, unless another pathologist offers an independentanalysis not based on conclusions in the autopsy report. The Court shouldfirmly clarify Williams and hold that the State cannot make an end-runaround the Constitution. Such holdings would be entirely consistent withthe Courts recent precedents on the Confrontation Clause. They wouldgreatly protect the liberty of the accused and guarantee that no person isfound guilty in violation of a foundational constitutional right.

275 Williams v. Illinois, 132 S. Ct. 2221, 2241 (2012).276 See U.S. CONST.art. VI, cl. 2.277 Williams, 132 S. Ct. at 2259 (Thomas, J., concurring in judgment).

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