The Confrontation Clause and coroner's reports
Last Friday, I discussed the Supreme Court's recent decision in Bullcoming v. New Mexico, in which the Court held that the testimony of one lab analyst about the tests performed by a different one violated the defendant's right of confrontation, and I posed the following scenario:
Say, for example, a "cold case" of rape or homicide, a dormant prosecution triggered by a match of defendant's DNA through a database. Except that the person who took the defendant's DNA, or the coroner who performed the autopsy, is long gone, and the state can't produce them as witnesses.
And the day before, the 8th District came down with its decision in State v. Monroe, which featured this assignment of error:
Defendant was denied his constitutional right of confrontation when the court allowed a non-examining coroner to testify as [to] the cause of death.
The 8th decided there was no problem with that. Were they right?
In rejecting the claim, the 8th relied almost solely upon State v. Craig, a 2006 decision which had addressed the exact issue raised in Monroe: one coroner had testified to the results obtained in an autopsy conducted by a different pathologist. The Supreme Court had held that "autopsy records are admissible as non-testimonial business records," and therefore there was no confrontation violation. End of story.
The problem is that Craig was decided in 2006. That was after Crawford, but then in 2009 the Court decided Melendez-Diaz v. Massachusetts, where they struck down a Massachusetts law which allowed a lab analyst's certificate to be introduced as proof of the type and weight of a drug in a narcotics prosecution. So we need to take a closer look at Craig, and see how it was affected by Melendez-Diaz and Bullcoming.
Craig's analysis of the Confrontation Clause issue begins with its observation that "the defense had the opportunity to question Dr. Kohler about the procedures that were performed, the test results, and her expert opinion about the time and cause of death," and that this was sufficient to satisfy the Clause; in other words, that as long as the defense got to cross-examine someone, even if he wasn't the person who performed the test, the defendant's right to confrontation wasn't violated. Bullcoming makes this argument untenable.
The court then moved to the autopsy report itself, holding that it was admissible as a business record under EvidR 803(6). It noted that "although the court [in Crawford] did not provide a comprehensive definition of testimonial statements, it indicated that business records are, 'by their nature,' not testimonial," and concluded that
An autopsy report, prepared by a medical examiner and documenting objective findings, is the 'quintessential business record.' The essence of the business record hearsay exception contemplated in Crawford is that such records or statements are not testimonial in nature because they are prepared in the ordinary course of regularly conducted business and are 'by their nature' not prepared for litigation.
The problem with this approach, though, is that it inverts the analytical process: it holds that since the autopsy report was a business record, it was non-testimonial. That's not the way it works, though, as explained in Melendez-Diaz:
As we stated in Crawford: "Most of the hearsay exceptions covered statements that by their nature were not testimonial -- for example, business records or statements in furtherance of a conspiracy." Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because -- having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial -- they are not testimonial. Whether or not they qualify as business or official records, the analysts' statements here -- prepared specifically for use at petitioner's trial -- were testimony against petitioner, and the analysts were subject to confrontation under the Sixth Amendment.
In other words, if the document was prepared for use at trial, it doesn't matter whether it qualifies as a business record: it's testimonial, and the defendant is entitled to cross-examine the person who conducted the autopsy.
In deciding whether the document was prepared for use at trial, the 8th District in Monroe makes a distinction that the court in Craig did not: that the autopsy report, unlike the lab certificate at issue in Melendez-Diaz, was not prepared solely for use at trial. There's simply no basis in the case law for holding that something must be prepared solely for use at trial to be considered testimonial; there's nothing which justifies limiting it that narrowly.
Finally, the court in Craig relied upon decisions from other jurisdictions which had upheld the admission of the testimony of someone other than the coroner who'd actually performed the autopsy, principally a Maryland case which had held that "the findings in an autopsy report of the physical condition of a decedent, which are routine, descriptive and not analytical, which are objectively ascertained and generally reliable and enjoy a generic indicium of reliability, may be received into evidence without the testimony of the examiner." This gets into the exact argument rejected in both Melendez-Diaz and Bullcoming: that the evidence is so reliable that cross-examination is unnecessary. In fact, that argument was rejected in Crawford itself, which made clear that reliability isn't the key factor, confrontation is. As the Court explained in Bullcoming, the "'obvious reliab[ility]' of a testimonial statement does not dispense with the Confrontation Clause," because the Clause "commands, not that evidence be reliable, but that reliability be assessed in aparticular manner: by testing in the crucible of cross-examination." What's more, all of the cases relied on in Craig were decided before Melendez-Diaz; as this Oklahoma case notes, the landscape has changed substantially since then, with numerous appellate courts holding that autopsy results don't come in if the person who performed the autopsy doesn't testify.
There is one post-Melendez case, the 4th District's decision in State v. Hardin, which holds to the contrary, finding that "the coroner's report in this case may still be admissible without infringing on Hardin's constitutional rights so long as it was not prepared for the purpose of litigation." This goes along with the distinction that Monroe finds, that the document was not prepared solely for litigation. (Although Monroe goes a bit farther -- "solely" as compared to "for the purpose of.") But Craig never really analyzed the issue of whether the report was in fact prepared for litigation; as explained above, it made an a priori determination that the report was a business record, and therefore "by its nature" was not prepared for litigation. This analysis doesn't survive Melendez-Diaz and Bullcoming, or even Crawford; an autopsy report isn't prepared "for the administration of an entity's affairs," but for "the purpose of establishing or proving some fact at trial."
That doesn't conclude the matter; there's still the question of harmless error. (In Bullcoming, the case was remanded to the New Mexico Supreme Court for consideration of that issue.) The Monroe court flirts with that, noting that
In this case the defendant was not contesting the conclusions or opinions of the autopsy report and the findings were not central to the determination of the criminal agency. No one disputed that David Bober's death was a homicide caused by a fatal gunshot wound or that he was intoxicated on the night in question; which was essentially the substance of the coroner's testimony in this case.
The latter point is especially significant; it may well be that the defense benefited from the toxicology reports showing the victim's drunkenness. And it's pretty much inarguable that the case turned not on whether the victim had been shot and killed, but on who did it.
Still, there will be cases where the autopsy is critical, and I don't think that Monroe's analysis of whether a substitute coroner's testimony is going to survive closer scrutiny.