Confronting the coroner
It's one of life's great historical ironies that generations from now, Antonin Scalia will be remembered for being a staunch advocate for the rights of criminal defendants. His opinion in Blakely v. Washington revolutionized the concept of jury trial, and his opinion in Crawford v. Washington did the same for the right of confrontation.
Last week, the Ohio Supreme Court in State v. Maxwell tackled one of the many questions left open by Crawford, and doing so underlined the inherent conflict in Crawford.
Just the facts, ma'am. Charles Maxwell and Nichole McCorkle had a turbulent relationship over the years, which produced one child. After he pistol-whipped her one night -- he admitted to a friend he'd done it -- Nichole made a police complaint against him for domestic violence. When Maxwell learned about it, he went to her house and shot her to death, in front of several other people. He later confessed to the police that he'd killed her.
The problem. The medical examiner who'd done the autopsy on Nichole was no longer available at the time of trial, so the court allowed another examiner to testify as to the report, and the conclusions he made from it.
Can you do that? Here's the law you need to know:
- In 2006, the Supremes hold in Crawford that a testimonial statement -- roughly, an out-of-court statement made the purpose or anticipation it would be used in the prosecution of the defendant -- could not be admitted, regardless of the hearsay rules, unless the declarant testified at trial.
- Later that year, the Ohio Supreme Court ruled in State v. Craig that a coroner's report could be admitted at trial without the testimony of the examiner who conducted the autopsy. The court rejected the argument that this violated Crawford, deciding that this was a business record, and thus wasn't testimonial.
- Three years later, The Supremes hand down Melendez-Diaz v. Massachusetts, holding that a state law which allowed the prosecution to introduce a certificate from the analyst as to the quantity of drug without the analyst appearing at trial violated the defendant's right to confrontation. It rejected Massachusetts' contention that the certificate could come in under the business records exception.
Melendez-Diaz abolished the clear line drawn in Craig and left a blurred one: some business records are testimonial, and some are not. How do you decide where a particular record falls?
Maxwell first discusses the post-Melendiaz-Diaz decisions by SCOTUS, and correctly concludes that their focus is on the purpose for which the document was prepared. The court's facing two problems here. First, the same year that Melendez-Diaz came out, the Ohio Seven held that one DNA analyst could testify as to the testing done by another. That went up to SCOTUS, which vacated the decision and sent it back, whereupon it got punted down to the trial court, and there are probably several people who could tell you what happened it, but I'm not one of them. The second is that two years after that, the Potomac Nine held in Bullcoming v. New Mexico that one analyst couldn't testify as to breath/alcohol results taken by another one.
The only argument left to the majority was that the coroner's report wasn't prepared for the purpose of prosecution. Relying heavily on state statutes as to the coroner's function, the majority did just that. The coroner's report isn't prepared for purposes of making a statement that would be available at trial, it's prepared pursuant to a statutory duty.
As Justice French acerbically noted in a partial dissent, this is a bit of a stretch:
Here, police responded to a shooting. The coroner received the body of a victim who had been shot twice in the head. Common sense tells us that the coroner was not investigating a mysterious public-health epidemic. He was investigating a homicide and would have clearly expected his report to be used in a subsequent murder trial.
The major objection by French and Pfeifer and O'Neill, who also dissented on this point, was the majority's holding that coroner's reports are per se non-testimonial. They argue that the question should be decided on a case by case basis. They nonetheless joined in the affirmance of the conviction (Pfeifer dissented from the affirmance of the death sentence) because they found the error to be harmless.
And that goes back to a problem with Crawford. Hearsay rules are based on reliability: we let in excited utterances, or statements made to a doctor, because we deem it highly unlikely that one will lie without having time to think about, or when seeking medical treatment. Crawford doesn't consider reliability, only whether the defendant was given his right to confrontation; Scalia's famous phrase is that dispensing with confrontation because the evidence is reliable is like dispensing with a jury trial because the defendant is obviously guilty.
But just how far do you go in doing that? There's a reason all the justices found that the admission of the coroner's report would have been harmless error: it was. There was no issue with the coroner's report. Nobody disputed that the reason that Nichole died was because Maxwell shot her twice in the head. Including Maxwell. (That lends added support for the dissenters' view that there shouldn't be blanket ruling. For example, if the claim was that the defendant had poisoned the victim, I think you can make a better case for having the right to cross-examine the person who actually made that conclusion.)
I wouldn't be surprised to see Maxwell wind up in DC; there's substantial dispute among the courts as to Crawford's effect on the admissibility of coroner's reports. Although Crawford was a unanimous opinion, later decisions have shown increasing discomfiture among several justices with Crawford's absolutist view. Sooner or later, the Court's going to have to resolve that.