Monday, August 9, 2010
The Autopsy Business: Maine Supreme Judicial Court Holds Medical Examiner Autopsy Report Not Testimonial
Many thanks to Colin for inviting me to visit here. I'll start with a case from Maine in which a decades-old murder case was closed with DNA evidence.
The Supreme Judicial Court of Maine held in State v. Mitchell, --- A.2d ---, 2010 WL 3034607 (Me. Aug. 5, 2010), that use of an autopsy report did not deprive a murder defendant of his rights under the Confrontation Clause despite his inability to cross-examine the report's author.
Since the Supreme Court's decision in Crawford v. Washington, 541 U.S. 36 (2004), much debate has ensued about what statements are "testimonial" and therefore are inadmissible absent cross-examination. The Sixth Amendment's Confrontation Clause provides "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him," and the Crawford Court held “Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” 541 U.S. at 68-69.
Crawford abrogated decades of precedent under which evidence admitted pursuant to hearsay exceptions did not violate the Confrontation Clause, so long as the evidence fell within “firmly rooted hearsay exception” or bore “particularized guarantees of trustworthiness.” See Ohio v. Roberts, 448 U.S. 56, 66 (1980).
Because under Crawford the statement of an absent witness is inadmissible if "testimonial," courts have struggled to decide whether various categories of documents are testimonial. The Supreme Court's recent decision in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), holding that forensic evidence showing that material seized by police was cocaine could not be admitted unless the author was available for cross-examination, has further complicated the exercise. Here, the Maine court decided that use of an autopsy report (which other courts have held may be admitted as business records without offending Crawford, see, e.g., United States v. Feliz, 467 F.3d 227, 233-35 (2d Cir. 2006)) did not violate a defendant's rights.
The Maine court quoted Justice Thomas's concurrence in Melendez-Diaz, noting that because the decision holding the forensic evidence to be "testimonial" received only five votes, Justice Thomas's narrower interpretation of "testimonial" is controlling.
It is unclear whether the Court's holding in Melendez-Diaz should be applied so as to permit the State to offer an expert witness's testimony based on an autopsy report that the expert witness did not author. Justice Thomas stated in his concurring opinion that he “continue[s] to adhere to [his] position that the Confrontation Clause is implicated by extrajudicial statements only insofar as they are contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.” See id. at ----, 174 L.Ed.2d at 333 (Thomas, J., concurring) (quotation marks omitted). The opinion suggests that the rationale of Melendez-Diaz should be limited to trial-oriented documents and should not extend to documents, such as autopsy reports, that are produced during the investigation.
Mitchell, at ¶ 43. The opinion notes, however, that courts have diverged on how to treat autopsy reports, making the issue one to watch. Id. at ¶ 44.
To further support its conclusion, the Maine court noted a distinction between Mitchell and other cases concerning autopsy reports.
The present case is distinguishable from those cases that excluded autopsy reports because here, the State did not offer the autopsy report itself in evidence. Rather, the State offered the testimony of Greenwald to establish the cause of death and identify defensive wounds. Because Mitchell was able to cross-examine Greenwald [a different Medical Examiner] concerning her expert testimony, this case is also distinguishable from Melendez-Diaz, where no live witness was made available for cross-examination. See Lui, 221 P.3d at 955-56. Further, in light of Justice Thomas's concurrence in Melendez-Diaz, it appears unlikely that the majority of the Supreme Court intended to include autopsy information underlying expert testimony in the same category as evidence “prepared specifically for use at ... trial.” Melendez-Diaz, 557 U.S. at ----, 174 L.Ed.2d at 329; see also id. at ----, 174 L.Ed.2d at 333 (Thomas, J., concurring). For these reasons, the admission of Greenwald's testimony did not violate Mitchell's confrontation rights.
The Supreme Court may have to settle the questions of autopsy reports, including whether having a live witness opine on the basis of an absent witness's report satisfies the new Confrontation Clause jurisprudence. Requiring cross-examination of report authors could effectively create a statute of limitations for murder, for old cases will tend to have unavailable affiants. In Mitchell, for example, the autopsy occurred in 1983, and DNA evidence allowed the defendant's arrest only in 2006. (For a prescient student article raising this issue before Melendez-Diaz was decided, see Carolyn Zabrycki, Comment, Toward a Definition of "Testimonial": How Autopsy Reports Do Not Embody the Qualities of a Testimonial Statement, 96 Cal. L. Rev. 1093, 1115 (2008).)
Mitchell also presents an interesting question of whether the trial court erred or abused its discretion in excluding evidence of an alternative suspect, to which I will return in my next post.