Thursday, June 11, 2009
Cause of Death: Virginia Case Reveals That The Commonwealth Has No Criminal Counterpart To Federal Rule Of Evidence 703
Federal Rule of Evidence 703 states that
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.
As the recent opinion of the Court of Appeals of Virginia in Jones v. Commonwealth, 2009 WL 1438264 (Va.App. 2009), makes clear, however, Virginia does not have a state counterpart to Federal Rule of Evidence 703, at least in criminal cases.
In Jones, Ronald Jerome Jones appealed from his conviction for second-degree murder. The prosecution secured Jones' conviction in large part through the testimony of Phillip Pope, who testified that James struck the victim several times on the head on the evening of August 19, 1983. After Jones' alleged attack on the victim, she was taken to the hospital and died eight days later, and another central element of the prosecution's case was the testimony of Dr. Marcella Fierro, who at the time of the trial was the Deputy Chief Medical Examiner for the Central District of Virginia. According to Dr. Fierro, the victim's death had resulted specifically from bronchial pneumonia or aspiration pneumonia, which developed as a complication of the victim's head injury.
According to Jones, however, this expert testimony was improperly rendered because Dr. Fierro reached her conclusion regarding cause of death by relying on University of Virginia medical records that were not admitted into evidence. His argument was partially correct. The court noted that in Simpson v. Commonwealth, 318 S.E.2d 386, 391 (Va. 1984), the Supreme Court of Virginia refused to apply the analysis of Federal Rule of Evidence 703 to Virginia trials, meaning that experts in criminal cases cannot rely upon inadmissible facts or data in reaching an expert opinion (Virginia Code Section 8.01-401.1 does, however, allow experts to do so in civil trials in Virginia).
The problem for Jones, however, was that Dr. Fierro's opinion regarding cause of death was not dependent on the medical records. Instead, Dr. Fierro also reached her conclusion based upon her personal examination of the victim's body during the autopsy, and she testified "that she could have determined Johnson's cause of death by relying solely on facts in evidence." Therefore, the Court of Appeals of Virginia found no problem with Dr. Fierro's testimony and affirmed Jones' conviction .