Evidence - admission of autopsy reports and surrogate testimony of medical examiners does not violate Confrontation Clause - United States v. James.

• Author: Scannell, John

Evidence--Admission of Autopsy Reports and Surrogate Testimony of Medical Examiners Does Not Violate Confrontation Clause--United States v. James, 712 F.3d 79 (2d Cir. 2013)

The Sixth Amendment to the U.S. Constitution provides criminal defendants with one of the country's most basic criminal law principles--the right to confront one's accusers--by prohibiting prosecutors from using a witness's adverse testimony against the accused without prior opportunity for cross-examination. (1) Determining what types of witness statements require the opportunity for confrontation has undergone dramatic change in recent years. (2) In United States v. James, (3) the Second Circuit considered these changes and held that the Confrontation Clause is not violated when autopsy and toxicology reports are admitted against a defendant, and medical examiners are allowed to testify about them despite not authoring the reports themselves. (4)

Richard James was convicted for his involvement in a conspiracy to fraudulently obtain and collect on life insurance policies by arranging for the murder of the insured individuals, Hardeo Sewnanan and Basdeo Somaipersuad. (5) On January 23, 1998, Somaipersuad was found dead in a New York City park. (6) New York City's medical examiner, Dr. Heda Jindrak, conducted an autopsy and determined Somaipersuad died of an overdose of alcohol and the drug Thorazine. (7) At trial, the prosecution introduced the autopsy report into evidence as well as testimony by a medical examiner who did not conduct the autopsy or author the report, Dr. Corinne Ambrosi. (8) James did not object to the introduction of the autopsy report or to Dr. Ambrosi's testimony. (9)

On January 8, 1999, Sewnanan died of what was later determined to be ammonia poisoning. (10) At trial, James filed a motion to preclude from evidence a toxicology report written by a medical examiner who would not be testifying. (11) James argued admitting it would violate his right to cross-examine the author of the report. (12) The district court denied James' motion stating that the report was not testimonial for purposes of the Confrontation Clause. (13) On appeal to the Second Circuit, James argued that the introduction of the autopsy and toxicology reports as well as the accompanying testimony by medical examiners who did not conduct the tests or author the reports violated his Sixth Amendment right to confrontation. (14)

The Supreme Court's decision in Crawford v. Washington marked a significant change in the Court's Confrontation Clause jurisprudence by unanimously holding the Confrontation Clause allows the admission of testimonial statements "only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." (15) Missing from the opinion was a definition of what qualifies as "testimonial" for purposes of the Confrontation Clause. (16) In Melendez-Diaz v. Massachusetts, the Court held forensic drug certifications were "testimonial" because they were created solely for use in a criminal trial, and therefore, required live witnesses to testify to the truth of the statements asserted in the report. (17)

Similarly, in Bullcoming v. New Mexico, the Supreme Court held that a certified blood-alcohol analysis subsequent to a Driving Under the Influence (DUI) arrest could not be introduced into evidence through the testimony of a laboratory analyst who did not sign the certification, personally perform, or personally observe the testing. (18) In a concurring opinion, Justice Sotomayor cited her opinion in Michigan v. Bryant stating that

[t]o determine if a statement is testimonial, [the Court] must decide whether it has "a primary purpose of creating an out-of-court substitute for trial testimony." When the "primary purpose" of a statement is "not to create a record for trial," the admissibility of [the] statement is the concern of state and federal rules of evidence, not the Confrontation Clause. (19) Because the Court did not develop a working definition of what constitutes a "testimonial" statement for purposes of the Confrontation Clause, lower state and federal courts were left to reach their own conclusions regarding autopsy reports. (20)

The Court again had the opportunity to define what types of statements qualify as "testimonial" for the purposes of the Confrontation Clause in Williams v. Illinois (21) In Williams, the Court considered whether a state police lab worker could testify in a rape case to a match between the defendant's blood sample kept in a police database and a vaginal swab analyzed by an outside laboratory. (22) In a fractured opinion, the Court did not agree on a definition of "testimonial," issuing a plurality opinion featuring two concurrences and a dissent. (23) One reason the plurality cited for finding no Confrontation Clause violation was that the "report was sought not for the purpose of obtaining evidence to be used against [the] petitioner" but rather to "fin[d] a rapist who was on the loose." (24) Writing in dissent, Justice Kagan noted five of the Justices expressly rejected the plurality's reasoning and commented that after the Court's unanimous decision in Crawford the five members of the plurality who agreed in the judgment "agree on very little ... [leaving] significant confusion in their wake." (25) The decision in Williams left lower courts with little guidance in determining when a forensic report is testimonial. (26)

In light of the uncertainty surrounding the admissibility of forensic reports, the Second Circuit in United States v. James revisited the issue of whether autopsy reports are testimonial. (27) In a previous decision, the Second Circuit found autopsy reports to be nontestimonial business records. (28) However, the Second Circuit noted the more recent Supreme Court cases of Melendez-Diaz and Bullcoming call that conclusion into doubt because the records at issue in both of those cases were "in some sense, business records--all were made in the course of the regular business that the laboratory conducts: forensic testing." (29) The James court went on to note the Supreme Court found the reports in both cases, having been prepared for the sole purpose of being used at trial, to be testimonial whether or not they also qualified as business records. (30)

The Second Circuit next addressed the Williams decision by noting that it "does not ... yield a single useful holding relevant to the case before us" and as a result the court "must rely on Supreme Court precedent before Williams to the effect that a statement triggers the protections of the Confrontation Clause when it is made with the primary purpose of creating a record for use at a later criminal trial." (31) Relying on pre-Williams precedent, the...