HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Friday, November 14, 2014

Guest Blogger Assistant Professor Marc D. Ginsberg: Admissibility of Forensic Autopsy Reports in Homicide Prosecutions

GinsbergLaw and medicine are center stage in a controversy percolating in the state and federal courts concerning the admissibility of forensic autopsy reports in homicide prosecutions when the examining pathologist (who performed the autopsy and prepared the report) is unable to testify at trial. At issue is the intersection of hearsay and the Confrontation Clause. Since Crawford v. Washington, 541 U.S. 36 (2004), the courts have been attempting to define “testimonial” hearsay, which, despite the application of a recognized exception to the hearsay rule, no longer trumps the Confrontation Clause. Crawford changed the standards announced in Ohio v. Roberts, 448 U.S. 56 (1980).

The circuit courts of appeals and the state courts are split on whether forensic autopsy reports are “testimonial” and, thus, inadmissible unless the defendant has had the opportunity to confront and cross-examine the examining pathologist-author of the report. In those jurisdictions and circuits which characterize the forensic autopsy report as “non-testimonial,” the defendant is only able to cross-examine a testifying surrogate forensic pathologist who has read the autopsy report and relies upon it for trial testimony.

Recently, I have suggested that forensic pathologists must anticipate that their forensic autopsy reports will be offered into evidence in a criminal homicide prosecution, and that the reports are “testimonial” under Crawford and implicate the Confrontation Clause. The Confrontation Clause and Forensic Autopsy Reports – A “Testimonial”, 74 Louisiana L. Rev. 117 (2013). I emphasized that forensic pathologists, as physicians, rely on their education, training, skill and judgment just as other physicians do and the only meaningful way to test the performance of the autopsy and accuracy of the report is by cross-examination at trial. In fact, the mistakes made by forensic pathologists have been reported in the medical literature many years ago. Alan R. Moritz, Classical Mistakes in Forensic Pathology, 26 Am. J. Clinical Pathology 1383 (1956). In my estimation, courts would do well to look to medicine in resolving this significant evidentiary problem. It is true that the classification of forensic autopsy reports as “testimonial” may derail some homicide prosecutions. However, this classification is necessary for the preservation of the defendant’s constitutional rights.

-Assistant Professor Marc D. Ginsberg

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