Academic journal article Harvard Law Review

Evidence - Confrontation Clause - Second Circuit Holds That Autopsy Reports Are Not Testimonial Evidence

Academic journal article Harvard Law Review

Evidence - Confrontation Clause - Second Circuit Holds That Autopsy Reports Are Not Testimonial Evidence

Article excerpt

EVIDENCE--CONFRONTATION CLAUSE--SECOND CIRCUIT HOLDS THAT AUTOPSY REPORTS ARE NOT TESTIMONIAL EVIDENCE. -- United States v. Feliz, 467 F.3d 227 (2d Cir. 2006), cert. denied, 75 U.S.L.W. 3438 (U.S. Feb. 20, 2007) (No. 06-8777).

The Supreme Court's decision in Crawford v. Washington (1) has required courts to reevaluate the circumstances under which admitting a hearsay statement at a criminal trial comports with the Confrontation Clause of the Sixth Amendment. (2) Prior to Crawford, under Ohio v. Roberts, (3) statements of an unavailable declarant were constitutionally admissible at trial only if they bore adequate "indicia of reliability." (4) In Crawford, the Court set aside the "indicia of reliability" standard and instead drew a distinction between testimonial and nontestimonial hearsay. (5) Testimonial hearsay is constitutionally admissible in a criminal trial only if the defendant had a prior opportunity to cross-examine the unavailable declarant. (6) Recently, in United States v. Feliz, (7) the Second Circuit held that autopsy reports are not testimonial under Crawford. (8) As a result, these reports may be admitted into evidence at trial without affording a defendant the right to confront and cross-examine the medical examiner who prepared the report. The Second Circuit's decision in Feliz is not unique; the few courts that have addressed the admissibility of autopsy reports post-Crawford have similarly held that they are nontestimonial hearsay. (9) The Feliz court's opinion also resembles those of other courts in that it appears to have been motivated more by concerns of hampering prosecutions than by the definition of "testimonial" set forth in Crawford and its progeny. However, because autopsy reports are prepared in anticipation of trial and because the practical consequences of finding autopsy reports to be testimonial are likely not as grave as some courts have anticipated, the Second Circuit should have held in Feliz that autopsy reports in homicide cases are testimonial evidence under Crawford.

On February 4, 1999, a federal grand jury in New York returned a seventeen-count indictment against Jose Erbo and other alleged cocaine distributors, including Miguel Feliz. (10) Among the charges were multiple counts of murder. (11) Erbo pleaded not guilty, and the case went to trial. (12) At trial, the government introduced into evidence nine autopsy reports to establish the cause of death in each of the charged homicides. (13) Instead of calling the physicians who had conducted the autopsies to testify, the government introduced the reports into evidence through a summary witness, Dr. James Gill, an employee of the Office of the Chief Medical Examiner of New York. (14) Dr. Gill had not conducted any of the autopsies described in the reports he presented. (15) Despite Erbo's objection that the presentation of the autopsies violated his Sixth Amendment confrontation right, the district court admitted them into evidence under the business records exception to the hearsay rule under the Federal Rules of Evidence. (16) At the conclusion of the trial, the jury found Erbo guilty of twelve counts listed in the indictment, including three counts of murder. (17)

Erbo appealed, alleging that the district court violated his rights under the Confrontation Clause by admitting the autopsy reports into evidence. (18) Erbo urged that admission of the reports was constitutionally defective because he was not provided a chance to cross-examine the preparing medical examiners. (19) He did not challenge the district court's classification of the autopsy reports as business records, but rather argued that the reports were testimonial under Crawford and thus inadmissible against him even if they fell under the business records exception to the hearsay rule. (20)

The Second Circuit affirmed Erbo's conviction. (21) Writing for the panel, Judge Hall (22) found no constitutional error in the district court's admission of the autopsy reports. …

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