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.
