Friday, August 23, 2013
Cause of Death?: Marc Ginsberg Assesses Whether Forensic Autopsy Reports Implicate the Confrontation Clause
The forensic autopsy report is an important component of a criminal homicide prosecution. The report, which is used to memorialize the cause and manner of death, under the auspices of a coroner’s or medical examiner’s office, constitutes a significant phase of a death investigation which is used "to (hopefully) convict the guilty and exonerate the innocent."...
The classic forensic pathology testimony at a criminal homicide trial comes in one of two basic forms: (1) the examining pathologist - the pathologist who performed the forensic autopsy on the victim and prepared the autopsy report – is the in-court witness who refers to the autopsy report and explains its findings and conclusions. This witness is subject to cross-examination by the defendant; (2) the examining pathologist is not the in-court witness. Instead, the in-court witness is a “surrogate” pathologist from the office of the coroner or medical examiner. The surrogate pathologist relies on the examining pathologist’s autopsy report and offers professional opinions at trial, as an expert witness. Here, the defendant is unable to confront and cross- examine the examining pathologist. Marc Ginsberg, The Confrontation Clause And Forensic Autopsy Reports — A 'Testimonial' (forthcoming Louisiana Law Review).
Given this last point, the question becomes, pursuant to the Supreme Court's Confrontation Clause jurisprudence since Crawford v. Washington, whether forensic autopsy reports are "testimonial" and thus implicate the Clause. This is the topic taken up by Professor Ginsberg in his forthcoming article.
The issue is certainly timely given that federal circuit courts have split on the issue. For instance, the Second Circuit in United States v. James, 712 F.3d 79 (2nd Cir. 2013), held that, "[i]n short, [an] autopsy report was not testimonial because it was not prepared primarily to create a record for use at a criminal trial." Conversely, in United States v. Ignasiak, 667 F.3d 1217 (11th Cir. 2012), the Eleventh Circuit held that "the autopsy reports in this case were testimonial: 'made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.'"
So, which side has the better of the issue? According to Professor Ginsberg, it is courts deeming forensic autopsy reports "testimonial." He concludes that
The crux of the confrontation issue – the need to confront and cross-examine the attending forensic pathologist – is that forensic pathologists are physicians. Physicians exercise judgment and make mistakes, whether they treat living, breathing patients or perform forensic autopsies. Courts that have adopted the view that forensic autopsy reports simply memorialize objective data are misinformed. Neither forensic pathologists nor forensic autopsy reports are fungible. Forensic pathologists would not necessarily report the same findings if each were, hypothetically, able to perform the same autopsy.
This conclusion in turn explains the importance of a defendant being able to confront the forensic pathologist:
The only vehicle by which a criminal defendant may explore the subjectivity involved in the performance of the forensic autopsy – to question the judgment of the examining forensic pathologist – is cross-examination. The in-court testimony of the surrogate forensic pathologist who examines the autopsy report prepared by the examining pathologist is an inadequate substitute. The surrogate witness is not the physician who was required to be familiar with the facts and the autopsy protocol, to examine a victim’s body, to perform the autopsy procedure, to make and report findings, and report the cause and manner of death. The cross-examination of the surrogate yields very little. The surrogate can rely on the autopsy findings with impunity. There is simply little to be gained by the defendant in the effort to cross-examine the surrogate. Cross-examination is the great truth-seeking test490 but it is an empty exercise when the surrogate testifies at trial.