Tuesday, May 30, 2017

An issue to be resolved: The treatment of autopsy reports

This blog has remained dormant for some time, it part because I have been distracted by other work and in part because there haven't been all that many developments that I have thought are worth reporting on.  But I will try to begin posting again more frequently.

There is one set of issues in particular that I think is headed for resolution by the Supreme Court, the treatment of autopsy reports in murder cases, and I expect to be writing several posts on it.  There are two basic issues, one specific to autopsy reports and the other common to other types of forensic reports.

First is the question of whether, or when, an autopsy report is testimonial.  Let's bear in mind how this issue comes up.  Almost always, it is the prosecution in a murder case that wants to use the report without producing as a live witness the medical examiner who made the report.  And the report provides some information -- often the cause of death, and sometimes the time as well -- that is helpful to the prosecution.  Almost always it is clear that, at least as of the time the examiner wrote the report, he or she believed that the death was probably a homicide.  And that means that the examiner must have known that he or she was creating evidence for use in a criminal case.  In such a case, I think it is clear that the report (and especially the statements of use to the prosecution) is testimonial in nature.  If it were not, that is akin to saying to the medical examiner, "Write up your report, and send it in to the police and the prosecutor.  You know, and everyone else knows, that you are doing so with the anticipation that it will be used as evidence or the prosecution in a homicide case, but there will be no need for you to take an oath, or appear in court or before the accused, or be subjected to cross-examination."  That goes against the very core of the confrontation right, and it utterly lacks historical foundation.

Some courts have seen it this way.  Others, though, have regarded autopsy reports as non-testimonial, principally on the basis of the proposition that autopsies are frequently performed for public health purposes having nothing to do with prosecution.  That proposition is true but immaterial.  The question should not be resolved by taking a survey of such a large body of reports -- the question in any given case is whether this report is testimonial.  And even if one did think that the question should be resolved by looking at a category of cases, "autopsies" is too broad -- a more appropriate category would be "forensic autopsies" or "medico-legal autopsies", both of which are well-known in the field.  Even assuming we are to look at the "primary purpose" of the statement (I don't think that should be the test, and perhaps the autopsy case will finally cause the Supreme Court to abandon it), and even assuming that there can be only one "primary purpose" of a statement (an unresolved matter), the primary purpose of a forensic autopsy report is to provide information for the criminal justice system leading to the conviction of the perpetrator of a homicide.

It also should not matter whether the autopsy report is directed at a targeted individual -- five justices rejected that idea in Williams v. Illinois, and for reasons I have explained before and won't bother with now, they were right in doing so.

Nor does it matter that autopsy reports are sometimes performed in cold cases, and prosecution may not follow for some years to come.  It is not a general principle of law that when time passes the prosecution can be excused from presenting its witnesses, absent proof that the accused forfeited the confrontation right, and there is no reason to create such a principle with respect to medical examiners.  And indeed, in this context (unlike that of a crucial eyewitness) the state can protect itself to a great degree by ensuring (as is standard practice in at least some jurisdictions) that at least two people competent to testify about what happened in the autopsy are present (and preferably one of them rather young!).  The state could also protect itself to a great degree by taking a continuous film of the autopsy, including the patient's face.

Finally, it does not mater whether the medical examiner is independent of the police or prosecutor. We do not have a system in which the confrontation right applies only to witnesses who have an affiliation with the criminal justice system.

Second is the question of whether one expert witness can offer an "independent" opinion based on factual assertions made by another expert in a testimonial statement.  This issue is not peculiar to autopsy reports; it arises with respect to many types of forensic lab reports, and was present in Williams.  Five justices properly answered the question in the negative, but because of the unusual result in that case -- the four prevailing because Justice Thomas joined them on other grounds -- the matter is still in contention.  I've addressed this matter before, especially in discussing Williams, and may come back to it later, but won't say more here.

There is a case pending before the Pennsylvania Supreme Court, Commonwealth v. Brown, that presents both issues (although with respect to the second it may be that only state-law issues are involved).  The Superior Court opinion, 139 A.3d 208 (Pa. Super. Ct. 2016), held that the autopsy report was testimonial and introduction of it was a Confrontation Clause violation -- but that the error was harmless because another examiner testified to her "independent" opinion (even though that opinion was based in part on facts asserted in the autopsy report).  So the court got one right and one wrong.  Both parties have appealed.  Here is Brown's initial brief; here is the state's initial brief; here is Brown's second brief (reply brief on his appeal, and appellee's brief with respect to the state's appeal).  The state will presumably file a reply brief on its appeal.

More to come on this set of issues.