Crawford and coroner's reports
On Monday, I talked about State v. Conley, a 10th District case which mentioned in passing that the coroner who had peformed the autopsy wasn't available by the time of trial, and so another assistant testified in his place. Neither the court nor the parties raised the issue of whether this presented a Confrontation Clause issue under Crawford v. Washington, which had held that the 6th Amendment barred the admission of "testimonial statements" unless the declarant appeared at trial. That's perhaps not surprising, in light of the fact that four years ago, in State v. Craig, the Ohio Supreme Court held that autopsy reports are "business records," and thus aren't testimonial. Last week the 8th District, in State v. Jaime, held that police dispatch call logs were exempt from Crawford under the same reasoning, citing Craig.
But maybe it's time to take a second look at the validity of Craig and the "business records" exemption from Crawford in light of the US Supreme Court's subsequent decision in Melendez-Diaz v. Massachusetts.
Let's start with Craig, a death penalty case in which, like Conley, one coroner had testified about the autopsy performed by another. The court first cited a long line of cases which had held that autopsy reports were admissible as public or business records. It then examined the Crawford issue, noting dictum by Scalia in Crawford that "by their nature," business records aren't testimonial, and also that virtually all courts considering the issue had similarly held that admission of the report through testimony by someone who hadn't performed the autopsy didn't violate Crawford. Two years later, in State v. Crager, the court used that "business records" reasoning to allow a DNA report and analyst's testimony, despite the fact that the testifying analyst wasn't the one who prepared the report.
But Crawford hadn't really held that business records aren't testimonial. Without going into detail -- which would involve a yawn-inducing discussion of the hearsay exceptions that were available at the time of the framing of the Constitution -- Scalia's comment was directed at the fact that business records weren't normally prepared in anticipation of litigation. That's true; AT&T keeps records of cell phone calls so it can properly bill its customers, not to provide evidence at a criminal trial.
All that is clarified in Melendez-Diaz, which involved a Massachusetts statute permitting the state to prove a drug case by introducing an affidavit from an analyst stating the quantity and type of drug. The State made the very same argument that was accepted in Craig and Crager: that the "affidavits are admissible without confrontation because they are 'akin to the types of official and business records admissible at common law.'" And Scalia, who wrote for the 5-4 majority, wasn't buying:
But the affidavits do not qualify as traditional official or business records, and even if they did, their authors would be subject to confrontation nonetheless. Documents kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status. But that is not the case if the regularly conducted business activity is the production of evidence for use at trial.
In short, the question is not whether the document -- an autopsy report, a DNA analysis, a police log book -- is a business record, but whether it was made for use as evidence at trial. It's tough to argue that a coroner's report wouldn't qualify under that definition. While a coroner is charged with conducting autopsies in "suspicious deaths," which obviously includes non-criminal situations, when someone like the victim of Jim Croce's You Don't Mess Around with Jim -- "he was cut in 'bout a hundred places, and shot in a couple more" -- is wheeled into the autopsy room, it's hard to see how the coroner wouldn't "anticipate that his statement" -- the report" -- wouldn't be "available for use at later trial. And the contention in Crager, that the Ohio Bureau of Criminal Investigation didn't prepare the DNA report in anticipation that it would be used in litigation, is simply specious.
I think all this calls into serious question the result in Craig and Conley; an autopsy report, regardless of its status as a business record, is testimonial, and barred from admission unless the person who performed the autopsy testifies at trial. (This Federal court decision, while of no precedential value here, does a nice job of laying out the argument.)
What about the call logs in Jaime? Jaime had broken up with his girlfriend, and when she returned to her apartment just after midnight, found him there, supposedly retrieving his personal items. She made a 911 call to the police, who arrived and escorted him off the premises, telling him to not to return. Jaime returned at 3:00 AM, kicking in the front door, and not only got his stuff, but beat up the girlfriend for good measure. The police received a 911 call of "a male beating a female," returned, and arrested Jaime. At trial, the State introduced not only the 911 calls, but the police logs showing when they were made and what the response was.
On appeal, Jaime argued that the records shouldn't have come in because, under Evid.R. 803(8), police reports in criminal cases aren't admissible unless offered by the defendant; the State responded by arguing that they were business records. (No argument was made about the 911 calls themselves, since they were clearly non-testimonial under the "emergency" doctrine of Davis v. Washington, discussed here.) To its credit, the court raised the confrontation issue on its own. It never mentions Melendez-Diaz, though, instead relying on the Craig court's formulation of the business records/testimonial statements issue, and then draws a distinction between "opinion" and "factual" statements, finding the latter to be non-testimonial. The basis for that distinction is State v. Sims, and 8th District case from 2007 which held that a ballistics test showing that a firearm was operable could be introduced in evidence without the testimony of the person who performed it. The distinction between "fact" and "opinion" in that context is virtually meaningless; couldn't the same be argued with respect to the drug analyst's report in Melendez-Diaz? Perhaps the most disquieting aspect of Jaime is that the court cited Sims at all; if Melendez-Diaz prohibits the use of a drug lab analysis without corresponding testimony, it's hard to see how a ballistics report would be admissible without confrontation of the person who conducted it.
That's not to suggest that the court was wrong in Jaime; it properly found that, in light of the abundant other evidence, admission of log reports was harmless error anyway. Still, Jaime and Conley should serve as a reminder to defense counsel to look at Crawford and Melendez-Diaz more carefully. As defense attorneys, we rarely win cases by putting evidence in. We win them by either trashing the State's evidence, or keeping evidence out. Crawford and especially Melendez-Diaz offer a way of keeping some very damaging evidence out of a trial. You're a long way toward winning a murder case if you keep that autopsy report out because the assistant coroner who performed it has since retired and is now in some ashram in Nepal.