Monday, October 15, 2012

Three decisions from the California Supreme Court on forensic reports

The California Supreme Court issued three decisions today on the Confrontation Clause and forensic reports.  Two of them divided the court and show how bad things can get in light of the confusion sown by the US Supreme Court's decision in Williams v. Illinois

The lead case, People v. Lopez, involves a lab report of blood alcohol content.   Seems familiar, doesn't it?  But a majority of the court says that the analyst doesn't have to show up because this report was not sufficiently formal, given where the analyst's signature was on the report.  Maybe a subsequent reading will make this appear less bizarre than it appears to me at the moment, but two quick reactions:  (1) The majority engages in a fine-tuned analysis of the placement of signatures and notations that I think utterly loses sight of the fundamental right at stake of an accused to be confronted with those who provide evidence against him.  (2) The decision, if it stands, provides a recipe for avoiding the confrontation right with respect to forensic reports, something that many labs and prosecutors have been eager to accomplish (one of the concurring opinions is pretty explicit on this).  This recipe will denigrate the quality of evidence presented.

The second case, People v. Dungo, involved an autopsy report in a murder case.  The majority decision says this was not testimonial because it was not made with the primary purpose of creating evidence for trial.  My reaction to this is on the order of "Give me a break."  I understand that there are all sorts of reasons why a medical examiner might do an autopsy.  But by the time the examiner is ready to write a report saying that death was by strangulation, he knows exactly what he is doing -- creating prosecution evidence in a murder case.  I am not a fan of the "primary purpose" test, but if this autopsy report doesn't meet it then the test has become farcial.

The third case, People v. Rutterschmidt, was decided on harmless error grounds, without dissent.  But it's worth mentioning, because it's not every day that a pair of elderly ladies is charged with having taken out multiple insurance policies on the lives of two men, in incidents six years apart, and then murdered them by running over them while they were in compromised condition.


Anonymous said...

I assume you have heard about the mess going on in Massachusetts - the home of Melendez-Diaz? If not, just Google "dookhan." Perhaps if analysts had been subject to confrontation sooner, some of the mess could have been avoided.

Greg Jones said...

There's a recent decision from the Michigan Supreme Court, holding that the certificate from the Secretary of State, notifying a driver that his or her license is suspended, is not "testimonial" with respect to its admission in a subsequent prosecution for driving after knowing the driver's license had been suspended. I thought that one was bad enough, but it's nothing compared to the California cases you're talkig about.

Richard Friedman said...

Oh -- I tried to respond to the first comment yesterday, but I guess it didn't go through. Yes, I think M-D might help in cases like this, though I'm not sure about the timing; I think she's saying, "M-D stressed me out and drove me to it"!

I don't have any great problem with the certificate notifying a driver of suspension being non-testimonial. That is a notice, saying, "Don't drive!" The crime has not yet been committed.

pv said...

The Confrontation Clause does not apply to the hearsay in the California Supreme Court Cases for a simple reason that has nothing to do with formality: The government was not attempting to create statements (designed to criminally implicate a particular person) by suggestive and/or coercive methods that would necessarily undermine the reliability of the resulting statements.

This is the historical evil that the Confrontation Clause was designed to remedy. Nothing more. Nothing less.

Four Supreme Court justices recognize this historical fact. A fifth vote will have to await the retirement of Scalia and/or Ginsburg and the appointment of a justice who will base his/her decision on a more accurate historical analysis.

Anonymous said...

The Illinois Supreme Court issued an opinion today holding that autopsy reports are not testimonial. The case is People v. Curtis Leach. Public domain cite is: 2012 IL 111534. The slip opinion is available on the Illinois Supreme Court's website.

Richard Friedman said...

Thanks. I've been very rushed; I'm hoping to comment soon on that decision and one issued the other day and looking the other way from West vVirginia

Anonymous said...

In Leach, the Illinois Supreme Court asserts that the autopsy report was non-testimonial under the reasoning of both the plurality and dissent in Williams; however, the court's analysis seems to track only Alito's targeted individual test. The argument that autopsy are often, if not usually, done for purposes other than creating evidnece for use in a criminal prosecution seems to miss the point. Shouldn't the question be "What was the purpose of the autopsy in this particular case," and not "Why are autopsies done in other situations?"

Also, while the court claimed it wasn't holding that an autopsy report can never be testimonial, the situations where that would be the case are extremely limited.

Think SCOTUS will take one of the recent autopsy cases?

pv said...

A pathologist who makes statements in an autopsy report regarding the cause of death is not a "witness" for purpose of the Confrontation Clause for a simple reason: His/her statements are not created in a setting that remotely resembles that which accompanied Cobham's statements accusing Raleigh of a crime.

A pathologist is under no coercion or pressure to provide the government with a particular answer to the question "What caused the decedent's death?"

There is no solid Founding Era historical evidence that a CC "witness" was intended to include declarants who are not subjected by the government to coercion, pressure or suggestion similar to that which Cobham suffered at the hands of the Crown.

As Justice Breyer and others have recognized, absent this historical support, there are many practical reasons not to interpret the term "witness against" too broadly.

The Court (or at least four members) is slowly, but surely, limiting the reach of Crawford's testimonial approach so that it more closely aligns with history and does not unduly infringe on states rights regarding the admissibility of hearsay evidence in criminal trials.

Anonymous said...

The N.Y. Court of Appeals recently held, in People v. Pealer (available here:, that certifications of breathalyzer machines are nontestimonial and, hence, that the defendant has no right to examine the person who prepared the certifications. Is this in accord with your view of the Confrontation Clause, Prof. Friedman?

Rich Friedman said...

I'm of two minds. On the one hand, obviously these statements are created for use in prosecutions. On the other, they're usually not prepared for use in a given prosecution, or with respect to a given defendant, so they're distinguishable from the usual testimonial statement, and maybe the definition of testimonial should require such a focus. So this isn't one I'm up on my hind legs about.

Anonymous said...

Anyone know if cert petitions have been, or are going to be, filed in any of the recent autopsy cases?

Anonymous said...

There is a new autopsy report case out of the Second Circuit, United States. v. James. Here's a link: The Court concluded that autopsy reports are non-testimonial and held that "a statement triggers the protections of the Confrontation Clause when it is made with the primary purpose of creating a record for use at a later criminal trial."

Judge Eaton of the Court of International Trade concurred in the result, based on plain error review, but disagreed with the majority's conclusion that autopsy reports are non-testimonial. He concluded that "a testimonial statement is one having an evidentiary purpose, declared in a solemn manner, and made under circumstances that would lead a reasonable declarant to understany that it would be available for use prosecutorially."

One of the reports admitted into evidence and held to be non-testimonial was created by an unknown Guyanese toxicologist. If such a report is not testimonial, and is not subject to the rigors of the Confrontation Clause, I don't know why any report should be.

Richard Friedman said...

I'm sure not going to defend this decision, and parts of it seem inexplicable. But a critical part of the majority's decision with respect to the autopsy, as I read it, was its perception that the autopsy was performed before the authorities had reason to believe that the death was a homicide.

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