Friday, March 09, 2018

Autopsy reports -- still waiting for clarification

Last May, I posted a discussion concerning the treatment of autopsy reports under the Confrontation Clause.  The principal issue is when, or whether, such reports should be considered testimonial.  A secondary issue, which arises in other contexts, is whether, assuming a report is testimonial, the prosecution can present secondary evidence concerning the contents of the report on the ground that it supports the opinion of an expert testifying live at trial.

I think the answers should be clear:  An autopsy report should clearly be considered testimonial when it concludes that the probable cause of death is homicide or otherwise provides evidence that a reasonable person in the position of the person writing the report would realize would likely be used in prosecution.  And if a report is testimonial, the Confrontation Clause is not satisfied by having an in-court witness rely on the report  for her opinion, whether or not that opinion is characterized as "independent," if the report only supports the opinion on the premise that the report is truthful.

But unfortunately there remains a great deal of confusion on these issues in the lower courts.  Some get them right, and others do not.  The Supreme Court indicated some interest in the problem last fall when it asked for a brief in opposition to the petition for certiorari (in which Jeff Fisher participated) in Garlick v. New York, but in the end it denied the petition.  Here are the petition (together with the motion for leave to proceed in forma pauperis) and the reply brief in support of the petition.

Meanwhile, Cody Reaves, who has since graduated from the University of Michigan Law School, did an independent study under my supervision on the Confrontation Clause issues related to the use of autopsy reports.  I believe his memo is a very useful resource for anyone doing research in this area, so I am posting it here.  It is Cody's work, not mine, and the conclusions are his; I certainly agree with some of his opinions, but not necessarily with all.


pv said...

The Court's upcoming opinion in Hughes regarding the Marks rule might have a big impact on the precedential value of Williams v. Illinois and, in turn, whether autopsy reports are testimonial.

Depending upon whether the opinion of the Williams plurality, concurrence or dissent can provide guidance to lower courts, that will impact the CC autopsy report question. And that depends on what the Court does in Hughes, if anything, regarding the Marks rule.

Steven Yermish said...

Here in Florida we have a real issue; two different intermediate appellate courts have come to opposite conclusions on the issue in the Banmah and Rosario opinions. While the Supreme Court, in dicta, has seemingly opined that an autopsy report is not testimonial, I do not believe there is anything binding. Thus, it all depends on where your client decides to commit the homicide. I just had a judge in a murder trial here in Miami rule against me on the issue, holding that the report is not testimonial based on Banmah (binding precedent in our circuit) although he openly acknowledged the Rosario decision made more sense and he would otherwise embrace that holding. So much for stare decisis supporting consistency!

pv said...

Steven, whether an autopsy report is testimonial depends upon whether a court applies the Williams plurality's "accusatory purpose" test, the concurring "formality" test, or the dissent's "evidentiary purpose" test.

That's why the Supreme Court's opinion in the upcoming Hughes case (determining the validity and scope of the Marks rule) is so important to determining what, if any, precedential weight should be accorded the fractured Williams case.

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Anonymous said...

Opinion last week from PA Supreme Court on this issue.

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