What happens if autopsy reports are found testimonial? The next steps to ensure the admissibility of these critical documents in criminal trials.

• Author: Amato, Dana

The Sixth Amendment guarantees a criminal defendant the right to confront the witnesses against her. This right to confrontation, known as the Confrontation Clause, applies to hearsay testimony. Therefore, even if a hearsay statement is admissible pursuant to the Federal Rules of Evidence, the Sixth Amendment may prohibit its admission. Whether hearsay runs afoul of the Confrontation Clause depends on whether that hearsay is "testimonial" in nature. However, the Supreme Court has refused to define "testimonial." Furthermore, what little guidance the Court has released about the correct interpretation of "testimonial" is fractured, conflicting, and confusing. This is especially troubling with respect to forensic hearsay documents because of their importance in criminal trials as well as their ubiquity and variety. Chief among these problematic documents is the autopsy report--an integral and controversial incarnation of forensic hearsay. Due to splits at the state and federal levels regarding the correct interpretation of this rule with respect to autopsy reports, as well as the high-stakes nature of its answer, this Comment argues that it is likely the Court will eventually consider the issue. Furthermore, it predicts that the outcome will be pose problems for prosecutors of murder cases. Therefore, this Comment proposes a solution that might ensure the admissibility of these critical documents in criminal cases even if the Court's ultimate ruling is problematic.

TABLE OF CONTENTS INTRODUCTION 294 I. BACKGROUND 296 A. What the Supreme Court Said 296 B. What the Federal Circuit Courts Heard 304 C. What the States Heard 307 II. PREDICTIONS & SOLUTIONS 309 A. The Supreme Court May Find Autopsy Reports Testimonial 309 1. Why The Supreme Court Will Likely Hear the Issue 310 2. Autopsy Reports May Be Found Testimonial 310 i. Justices Ginsberg, Kagan, and Sotomayor 310 ii. Justice Thomas 314 iii. Justices Kennedy, Breyer, and Alito 315 iv. Chief Justice Roberts 317 v. The Empty Chair 318 B. An Interdisciplinary Solution 319 Conclusion 322 INTRODUCTION

The Sixth Amendment of the Constitution provides that a criminal defendant has the right to be "confronted with the witnesses against him." (1) This provision is commonly referred to as the "Confrontation Clause." The U.S. Supreme Court radically changed its view of the Confrontation Clause in 2004 with Crawford v. Washington, (2) a case which imposed a new fulcrum for Confrontation Clause cases: testimonial status. (3) Under the old precedent, hearsay statements were admissible when the declarant was unavailable for trial but the statements contained sufficient "indicia of reliability" or "particularized guarantees of trustworthiness." (4) However, Crawford changed the inquiry: if a hearsay statement is offered against the defendant in a criminal trial and its declarant does not testify, the statemenl is inadmissible for its truth if the statement is "testimonial" in nature, without any question about the statement's independent reliability.' Although the word "testimonial" is found nowhere in the text of the Confrontation Clause, the word testimonial became the central point upor which all post-Crawford cases turned. (6) The Supreme Court has openly refused to define the word and has not produced coherent guidance to the lower courts on how to implement this precedent. (7)

One of the more severe consequences of Crawford and its progeny is the lack of clarity surrounding a certain type of hearsay integral to many murder trials across the country: autopsy reports. Although the Court has heard some cases regarding the admissibility of other types of forensic hearsay in the event of declarant unavailability, it has flatly refused to take up a case concerning the testimonial status of autopsy reports, despite a recent opportunity to do so. (8)

This Comment will make three main arguments about this issue. First, confusion in lower courts, the significant circuit and state splits on the issue, and the sheer importance of autopsy reports to the criminal justice system all make it more likely that the Supreme Court will grant certiorari on this issue. Moreover, whether autopsy reports are admissible in "declarant-unavailable" situations9 is a clear question that warrants a clear answer. Second, it is likely, based on existing precedent and the opinions authored by multiple justices on this topic, that the Court could find autopsy reports testimonial for the purpose of the Confrontation Clause. Lastly, this Comment explains the problem that results from this finding--namely, barring the admission of an autopsy report where its creator is unavailable for trial--and proposes an interdisciplinary solution to that problem. This Comment proposes that the medical community should enact a national standard for conducting autopsy reports. This standard should mandate preservation of the autopsy procedure with the explicit intent that future experts will be able to look at the report to draw independent conclusions without having to rely on the testimonial opinions of the original medical examiner.

1. BACKGROUND

   In order to fully appreciate the complexity of this evidentiary issue, some background on the evolution of the law is necessary. The Supreme Court's jurisprudence on what counts as "testimonial" under the Confrontation Clause is at best unclear and at worst irreconcilable. (10) The Court has a tendency to push off the difficult task of providing a concrete definition for "testimonial" evidence in favor of embracing a fact-specific analysis of the evidence in each case." As a result, the current law has been interpreted in varying (often contradictory) ways by federal circuit and state courts alike. (12)

   1. WHAT THE SUPREME COURT SAID

      Justice Scalia, writing for the Court in Crawford, abrogated previous Confrontation Clause precedent from the 1980s. (13) Crawford is now considered the landmark decision of current Confrontation Clause jurisprudence. (14) The defendant in Crawford was tried for assault and attempted murder. (15) The state offered into evidence an incriminating, previously recorded statement made to the police by the defendant's wife, who did not testify at his trial. (16) The defendant argued that admission of this evidence violated his Sixth Amendment right to be "confronted with witnesses against him." (17) The Washington trial court had originally admitted the statement under the Ohio v. Roberts (18) standard, namely because the statement had sufficient indicia of reliability. (19) Still, under the Roberts standard, the appellate court of Washington reversed the trial court's decision on the ground that parts of the statement were sufficiently reliable, but others were not. (20) Finally, the Supreme Court of Washington reversed the appellate court decision, finding the statements sufficiently reliable and therefore admissible because the statement "sufficiently interlocked" with the defendant's own statements, thereby meeting the Roberts standard. (21)

      The Supreme Court, however, agreed with the defendant's arguments. (22) In doing so, the Supreme Court established a new rule: any evidence that is "testimonial"--even if such evidence does not come from a live witness--triggers the defendant's rights under the Confrontation Clause. (23) In declaring this new rule, Justice Scalia reasoned, "the [Confrontation] Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination." (24) The Court refused to further explain its new understanding of the Confrontation Clause. Sidestepping the issue of exactly what "testimonial evidence" looks like, the Court declared "[w]e leave for another day any effort to spell out a comprehensive definition of 'testimonial.'" (25) It did provide a list of examples, however, including but not limited to "prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and . .. police interrogations." (26) The Supreme Court's justification for classifying the aforementioned evidence as categorically testimonial lies with the documents' "clos[e] kinship to the abuses at which the Confrontation Clause was [originally] directed." (27)

      Chief Justice Rehnquist presciently asserted that by unnecessarily overturning Roberts, the decision in Crawford "casts a mantle of uncertainty over future criminal trials in both federal and state courts ... ." (28) This concurrence shows that the trouble Crawford would cause was recognized at the inception of the doctrine. (29)

      The next key case regarding the testimonial nature of certain hearsay evidence was Davis v. Washington, (30) a 9-0 decision in favor of the respondent, the State of Indiana. (31) In that case, the Supreme Court clarified that:

      Without attempting to produce an exhaustive classification of all conceivable statements--or even all conceivable statements in response to police interrogation--as either testimonial or nontestimonial, it suffices to decide the present cases to hold as follows: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. In other words, if the primary purpose of the hearsay statement was to aid Police during an emergency--for example, "The man who shot her turned left down the street!"--the hearsay statement is nontestimonial. This is because the statement, when said, was not intended to accuse anyone of wrongdoing (as...