Dissecting the constitutional admissibility of autopsy reports after Crawford

Catholic University Law Review

Volumn 57, Issue 1, 2007, Pages 269-291

  Yanovitch, Matthew ^a  

^a NONE

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EID: 42149123823     PISSN: 00088390     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (328)

1. U.S. CONST, amend. VI.
2. See FED. R. EVID. 801. The Advisory Committee Notes to Article VIII of the Federal Rules of Evidence explain that, "[t]he pattern which emerges from the earlier cases invoking the clause is substantially that of the hearsay rule, applied to criminal cases: an accused is entitled to have the witnesses against him testify under oath, in the presence of himself and trier, subject to cross examination . . . ."
3. Id. art. VIII advisory committee's notes.
4. See U.S. CONST, amend. VI.
5. See, e.g., People v. Durio, 794 N.Y.S.2d 863, 869 (N.Y. Sup. Ct. 2005) ("Years may pass between the performance of the autopsy and the apprehension of the perpetrator. This passage of time can easily lead to the unavailability of the examiner who prepared the autopsy report. . . . Unlike other forensic tests, an autopsy cannot be replicated by another pathologist. Certainly it would be against society's interests to permit the unavailability of the medical examiner who prepared the report to preclude the prosecution of a homicide case.").
6. 541 U.S. 36 (2004).
7. See Ohio v. Roberts, 448 U.S. 56, 65-66 (1980);
8. see also Paul Gianelli, Admissibility of Lab Reports: The Right of Confrontation Post-Crawford, 19 CRIM. JUST. 26, 28 (2004)
9. (citing cases decided prior to Crawford allowing the admissibility of autopsy reports).
10. Roberts, 448 U.S. at 65-66;
11. see also United States v. Rosa, 11 F.3d 315, 333 (2d Cir. 1993) (admitting an autopsy report under a Roberts analysis).
12. Roberts, 448 U.S. at 74-75.
13. Exceptions to the requirement that the prosecution make a good faith effort to produce the declarant were subsequently announced by the Court in United States v. Inadi, 475 U.S. 387, 399-400 (1986) (excepting out-of-court statements by co-conspirators),
14. and White v. Illinois, 502 U.S. 346, 348-49 (1992) (excepting out-of-court spontaneous declarations and statements made for purposes of medical diagnosis or treatment).
15. See Roberts, 448 U.S. at 65-66;
16. see also PAUL C. GIANNELLI, U NDERSTANDING EVIDENCE 548 (2d ed. 2006) (explaining the two-pronged Roberts test).
17. Crawford, 541 U.S. at 60-69.
18. Id. at 61 ("Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment's protection ... to amorphous notions of 'reliability.'").
19. Id. at 50-53.
20. Id. at 50 ("[T]he principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.").
21. Id. at 56.
22. E.g., Rollins v. State, 897 A.2d 821, 831-35 (Md. 2006);
23. People v. Durio, 794 N.Y.S.2d 863, 867-69 (N.Y. Sup. Ct. 2005).
24. See supra note 8.
25. In Roberts, Herschel Roberts was arrested for forging a check. Roberts, 448 U.S. at 58. At a preliminary hearing, Roberts' lawyer called the victim's daughter as a defense witness in an attempt to solicit an admission that she gave Roberts permission to use the checks.
26. Id. The witness denied having given the checks to Roberts, but despite five subpoenas for her appearance at trial, she did not appear.
27. Id. at 58-59. The State moved to admit the transcripts of the testimony "relying on [an Ohio statute] which permits the use of preliminary examination testimony of a witness who 'cannot for any reason be produced at the trial.'"
28. Id. at 59
29. (quoting OHIO REV. CODE ANN. § 2945.49(A)(2) (Lexis Nexis 2006)). Although Roberts objected to the admission of the transcript on the grounds that it violated his Confrontation Clause rights, the trial court admitted it into evidence.
30. Id. at 59-60.
31. GIANNELLI, supra note 9, at 528.
32. See Roberts, 448 U.S. at 65-66;
33. see also GIANNELLI, supra note 9, at 528 (describing the test as "two-pronged").
34. CLIFFORD S. FISHMAN, A STUDENT'S GUIDE TO HEARSAY 92 (3d ed. 2007) (using the term "declarant prong" to label the first Roberts requirement).
35. Roberts, 448 U.S. at 74-75. The Roberts court explained: The law does not require the doing of a futile act. Thus, if no possibility of procuring the witness exists (as, for example, the witness' intervening death), "good faith" demands nothing of the prosecution. But if there is the possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation. "The lengths to which the prosecution must go ... is a question of reasonableness."
36. Roberts, 448 U.S. at 74
37. (quoting California v. Green, 399 U.S. 148, 189 n.22 (1970)) (alteration in original).
38. Roberts, 448 U.S. at 66;
39. see also FISHMAN, supra note 19, at 92 (using the term "'reliability' prong" to label the second Roberts requirement).
40. 475 U.S. 387, 391-96 (1986).
41. Id. at 399-400;
42. see also FED. R. EVID. 801(d)(2)(E).
43. FISHMAN, supra note 19, at 92. Professor Fishman uses the term "independent evidentiary significance" to describe those hearsay exceptions under which "the prosecutor need not call the declarant."
44. Id. The Inadi court described a statement admitted under the former testimony exception to the hearsay rule (under which the declarant must be produced) as "seldom ha[ving] independent evidentiary significance of its own."
45. Inadi, 475 U.S. at 394 (emphasis added).
46. Inadi, 475 U.S. at 394-95.
47. White v. Illinois, 502 U.S. 346, 348-49 (1992).
48. Id. at 356-57. The White court uses the term "substantial probative value" instead of "independent evidentiary significance."
49. Id.
50. Manocchio v. Moran, 919 F.2d 770, 773-76 (1st Cir. 1990).
51. Id. at 771-72.
52. Id. at 782.
53. Id. at 772.
54. Id. at 772, 776;
55. see also R.I. GEN. LAWS § 23-4-3 (Lexis Nexis 2001) ("The office of state medical examiners shall be responsible for: (1) The investigation of deaths within the state that in its judgment might reasonably be expected to involve causes of death enumerated in this chapter [including homicide].").
56. Manocchio, 919 F.2d at 772.
57. Id. at 772.
58. Id.
59. Id. at 772-73. Dr. Burns, the Medical Examiner called to testify, was one of three signatories to the autopsy report performed by Dr. Zirking.
60. Id. at 772.
61. Id. at 773.
62. Id. at 771-72.
63. State v. Manocchio, 497 A.2d 1, 8 (R.I. 1985) ("We conclude that the right of confrontation of defendant[] was not violated. This conclusion is based on the trial justice's finding that the circumstances surrounding the preparation of the autopsy report were trustworthy. We conclude that admission of the autopsy report was not error.").
64. Manocchio, 919 F.2d at 771.
65. Id.
66. Id. at 773-74.
67. See id. at 774.
68. See id.
69. Id. at 774-75.
70. See id. at 776.
71. See id.
72. See FED. R. EVID. 803(6) (excepting business records from the hearsay rule);
73. id. 803(8) (excepting certain public records from the hearsay rule).
74. Manocchio, 919 F.2d at 776-77 ("[T]hese cases fall short of establishing that autopsy reports, as such, are a firmly rooted hearsay exception. Because such reports may contain the examiner's views as to such matters as whether death was caused by homicide and may incorporate information from outside the medical examiner's office, problems are raised going beyond a simple application of the mentioned exceptions.").
75. Id. at 777.
76. Id. at 778.
77. Id. at 778-79.
78. Id. at 778, 779.
79. See id. at 779, 782-83.
80. Id.
81. Id. at 783.
82. Id. at 783-84.
83. Id. at 784-85.
84. Crawford v. Washington, 541 U.S. 36, 68 (2004).
85. Id. at 38, 40.
86. Id. at 40.
87. Id. at 38-39.
88. Id. at 38-40.
89. Id.
90. (citing WASH. REV. CODE § 5.60.060(1) (1994)).
91. Id. The State successfully argued that Sylvia's admission that she led Crawford to the victim's apartment constituted a statement against penal interest, because by facilitating the assault, Sylvia was culpable for the crime.
92. See id.
93. Id. at 40-41.
94. State v. Crawford, 54 P.3d 656, 662-64 (Wash. 2002),
95. rev'd, 541 U.S. 36 (2004).
96. Id. at 662.
97. Crawford, 541 U.S. at 40-41 ("Sylvia was not shifting blame but rather corroborating her husband's story that he acted in self-defense ... ; she had direct knowledge as an eyewitness; she was describing recent events; and she was being questioned by a 'neutral' law enforcement officer.").
98. See id. at 42-50.
99. Id. at 50.
100. Id.
101. Id. at 53-54.
102. Id. at 51
103. (quoting 2 N. WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828)).
104. For an argument that Justice Scalia has misread the historical record, see generally Thomas Y. Davies, What Did The Framers Know and When Did They Know It? Fictional Originalism in Crawford v. Washington, 71 BROOK. L. REV. 105 (2005), stating that "[t]he historical claims regarding the original meaning of the Confrontation Clause in [Crawford] provide the latest installment of fictional originalism."
105. Crawford, 541 U.S. at 68 ("We leave for another day any effort to spell out a comprehensive definition of 'testimonial.'"). The Court has handed down only one decision since Crawford that further fleshes out the meaning of "testimonial."
106. The consolidated cases of Davis v. Washington and Hammon v. Indiana involved the admissibility of statements made to government officials in the context of domestic violence situations. Davis v. Washington, 126 S.Ct. 2266, 2270, 2272 (2006).
107. In Davis, Adrian Davis's former girlfriend, Michelle McCottry, called 911 during a domestic disturbance. Id. at 2270-71. She told the 911 operator that Davis was beating her again, and whenever McCottry began to talk, the operator cut her off with questions regarding Davis' appearance, age, and other descriptive information.
108. Id. at 2271. Two police officers arrived several minutes later and found a shaken McCottry, but Davis had left the scene.
109. Id. Davis was subsequently arrested and charged with "felony violation of a domestic no-contact order."
110. Id.
111. McCottry did not testify at Davis's trial, Id. The two responding police officers were the prosecution's only witnesses, but neither could testify that Davis had injured McCottry. Id. The trial court allowed the prosecutor to play the 911 tape as evidence to establish Davis as the assailant, and Davis was convicted.
112. Id.
113. The Court, with Justice Scalia writing for the majority (as he did in Crawford), held that McCottry's statements to the 911 operator were not testimonial. Id. at 2277. The Court's test focused on the purpose of the interrogation: "Statements are non-testimonial 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."
114. Id. at 2273. By contrast, "[statements] are testimonial when the circumstances objectively indicate that . . . the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution."
115. Id. at 2273-74. The Court distinguished McCottry's 911 call from the interrogation of Sylvia Crawford in Crawford: "McCottry was speaking about events as they were actually happening," whereas Sylvia's interrogation "took place hours after the events she described had occurred."
116. Id. at 2276. Moreover, "McCottry (unlike Sylvia Crawford) was facing an ongoing emergency. Although one might call 911 to provide a narrative report of a crime absent any imminent danger, McCottry's call was plainly a call for help against bona fide physical threat."
117. Id.
118. According to the Court, determining the testimonial nature of statements made in response to police interrogation in the Hammon case was a "much easier task." Id. at 2278. There, the police responded to a report of a domestic disturbance at the home of Hershel and Amy Hammon, finding Amy alone on the porch.
119. Id. at 2272. Amy allowed the police into the home, where the officers noticed broken glass on the floor near a furnace.
120. Id. Hershel was in the kitchen at the time.
121. Id.
122. One officer remained in the kitchen with Hershel while the other went into the living room with Amy to ask her what happened. Id. Amy told the officer about Hershel's violent behavior, and the officer had her fill out a battery affidavit.
123. Id.
124. The Court found the statements within the affidavit to be "not much different from the statements we found to be testimonial in Crawford. " Id. at 2278. Notably, at the time the statements were given, there was no longer an ongoing argument between Amy and Hershel, Amy had told the officers that everything was fine, and the officer was seeking to determine what had already happened rather than what was going on at that moment.
125. Id. The Court found that, "[o]bjectively viewed, the . . . sole[] purpose of the interrogation was to investigate a possible [past] crime."
126. Id. As such, Amy's responses were considered testimonial.
127. Id.
128. Crawford, 541 U.S. at 51-52.
129. Id. at 51-52
130. (quoting Brief for Petitioner at 23, Crawford, 541 U.S. 36 (No. 02-9410)) (explaining that such testimony includes, "affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially").
131. White v. Illinois, 502 U.S. 346, 365 (1992) (Thomas, J., concurring in part and concurring in judgment),
132. quoted in Crawford, 541 U.S. at 51-52.
133. Brief of the National Association of Criminal Defense Lawyers et al. as Amici Curiae in Support of Petitioner at 3, Crawford, 541 U.S. 36 (No. 02-9410), available at http://www.nacdl.org/public.nsf/newsissues/ amicus_attachments/$FILE/crawford.pdf,
134. quoted in Crawford, 541 U.S. at 51.
135. Crawford, 541 U.S. at 56.
136. See id. at 52 ("Statements taken by police officers in the course of interrogations are also testimonial under even a narrow standard.");
137. id. at 61 ("Sylvia Crawford's statement is testimonial under any definition.").
138. Id. at 60-69.
139. Id. at 60-61.
140. Id. at 62, 65-66 (condemning the Roberts test for "allowing] a jury to hear evidence, untested by the adversary process, based on a mere judicial determination of reliability").
141. Id. at 63.
142. Id. at 61.
143. Smith v. State, 898 So.2d 907, 909 (Ala. Crim. App. 2004);
144. State v. Lackey, 120 P.3d 332, 342 (Kan. 2005);
145. Rollins v. State, 897 A.2d 821, 853 (Md. 2006);
146. People v. Durio, 794 N.Y.S.2d 863, 864, 869 (N.Y.Sup. Ct. 2005);
147. Moreno Denoso v. State, 156 S.W.3d 166, 172 (Tex. Ct. App. 2005).
148. 156 S.W.3d at 180-83.
149. Id. at 171-72.
150. Id. at 172.
151. Id.
152. Id. at 172, 182.
153. Id. at 181.
154. Id. at 172,181.
155. Id. at 180-81. Denoso unsuccessfully argued that the law enforcement exclusionary clause of the public records exception should apply to medical examiners.
156. Id.
157. Id. at 181.
158. Id. at 181-82.
159. Id. at 182.
160. Id. (citation omitted)
161. Id. The court further noted that "the new rule articulated in Crawford is not applicable in this case."
162. Id.
163. Id. at 182-83.
164. 794 N.Y.S.2d 863, 867-69 (N.Y.Sup. Ct. 2005).
165. Id. at 864.
166. Id. at 864-65.
167. Id. at 865.
168. Id. at 864.
169. Id. at 867
170. (quoting Crawford v. Washington, 541 U.S. 36, 63 (2004)).
171. Id.
172. Id. at 868 ("A public agency such as the Office of the Chief Medical Examiner (OCME) constitutes a 'business' for the purposes of [the New York statute].");
173. see also N.Y. C.P.L.R. § 4518(a) (McKinney 2007) ("The term business includes a business, profession, occupation and calling of every kind.");
174. cf. People v. Foster, 261 N.E.2d 389, 391 (N.Y. 1970) (concluding that certain functions of the police department are business functions),
175. quoted in Durio, 794 N.Y.S.2d at 868.
176. Durio, 794 N.Y.S.2d at 868.
177. 780 N.Y.S.2d 393, 396-97 (N.Y. App, Div. 2004). There, the defendant was convicted of first degree rape and sodomy.
178. Id. at 394. Laboratory analysis of the victim's blood was admitted by the trial judge without the testimony of the scientist who performed the test.
179. Id. at 396-97. The victim's blood alcohol level "was especially significant here, as the victim's intoxication level [was] directly related to her capability to consent [to sex]."
180. Id. at 397.
181. The court concluded that the blood test was testimonial because it was conducted at the direction of the prosecution in anticipation of trial Id.
182. Id. at 397.
183. Durio, 794 N.Y.S.2d at 868-69.
184. Id. at 868;
185. see also N.Y. CITY, CHARTER ch. 22, § 557(g) (2004) ("The chief medical examiner shall keep full and complete records in such form as may be provided by law. The chief medical examiner shall promptly deliver to the appropriate district attorney copies of all records relating to every death as to which there is, in the judgment of the medical examiner in charge, any indication of criminality. Such records shall not be open to public inspection.").
186. Id. at 869;
187. see also People v. Foster, 261 N.E.2d 389, 391-92 (N.Y. 1970) ("While it is true that such records may later be used in litigation, such was not the sole purpose when they were made, and, therefore, they should not be excluded merely because this was a possible future use."),
188. quoted in Durio, 794 N.Y.S.2d at 868.
189. Durio, 794 N.Y.S.2d at 869.
190. Id.
191. Id.
192. See id.
193. 898 So.2d 907, 909 (Ala. Crim. App. 2004).
194. Id. at 908.
195. Id.
196. Id.
197. Id.
198. Id. at 908-09.
199. Id. at 909.
200. Id.
201. Id. ("The State's theory of the case was that Stumler was not killed by the blows to his head but was asphyxiated when Smith secured the plastic bag over his head. Smith admitted that he killed Stumler, but he claimed that he did so in self-defense.").
202. Id. at 915.
203. Id. Dr. Herrmann had left her job with the County and had entered private practice. Id.
204. Id.
205. Id. at 908.
206. Id. at 916.
207. Id.
208. (citing Adams v. State, 955 So.2d 1037, 1073 (Ala. Crim. App. 2003),
209. rev'd on other grounds 955 So.2d 1106 (Ala. 2005)).
210. Id. at 916-17.
211. Id. at 916
212. (citing California v. Green, 399 U.S. 149, 155-56 (1970)).
213. Id. at 917.
214. Id. at 918 ("The jury in this case rejected the prosecution's assertion that Smith committed murder; it instead found him guilty of manslaughter. . . . [W]e find that the evidence presented was sufficient to support the jury's finding that Smith was guilty of manslaughter. . . . The facts overwhelmingly support the manslaughter conviction, even without consideration of the autopsy report.").
215. In concurrence, Judge Shaw agreed that admission of the autopsy report was harmless error, if it was error, but questioned the majority's confrontation clause analysis. Id. at 920-23 (Shaw, J., concurring). Judge Shaw noted that although Crawford suggested that business records are not testimonial, the Court "did not specifically address statements made by a medical examiner in an autopsy report prepared in anticipation of a criminal prosecution."
216. Id. at 921. Additionally, Judge Shaw stated that Crawford had not expressly overturned Illinois v. White, and therefore cautioned that any finding of a Statement as non-testimonial ought nevertheless also satisfy the White requirement of independent evidentiary significance.
217. Id. at 923 ("[White holds] that a statement that qualifies for admission under a 'firmly rooted' hearsay exception is so trustworthy that adversarial testing can be expected to add little to its reliability.");
218. see also supra notes 29-30 and accompanying text.
219. State v. Lackey, 120 P.3d 332, 348 (Kan. 2005).
220. Id. at 341. The facts of the case are grisly. Robert Henry Lackey, a drifter using the alias "Bob Moore," found a place to stay and worked as a cook at the Salina Gospel Mission.
221. Id. at 340. His victim, "S.B.," was a 22-year-old college student volunteering at the mission.
222. Id. The two became friends, but Lackey wanted more, and became angry when S.B. rejected his advances.
223. Id.
224. On December 11, 1982, Lackey spent the afternoon drinking by himself at a local bar; at around 6 p.m., he took a cab from the bar to a convenience store within walking distance of S.B.'s mobile home. Id. at 340-41. Four to five hours later, he took a cab from the same convenience store back the mission.
225. Id. at 341. At 7:30 a.m. the next morning, clergy at the mission discovered that Lackey was gone, along with all of his belongings and S.B. was never heard from again.
226. See id.
227. S.B.'s boyfriend returned to Salina from out of town, and was unable to locate her. See id. at 341. He even stayed a few nights in her trailer during the week of December 12 through 17, 1982.
228. Id. He concluded that she left town. He discovered S.B.'s body when he was moving his belongings out of the trailer.
229. Id. She had bruises on her neck and "was wearing socks and underwear and her jeans were pulled down around her ankles."
230. Id.
231. Id. at 341.
232. See id. at 342. The physical evidence from the initial investigation in 1982 was preserved; however, that investigation did not lead to an arrest.
233. See id. In 1996, the Kansas Bureau of Investigation and the Salina Police received a tip from Canadian authorities that a "Robert Moore" had taken part in a homicide in Salina in 1982.
234. Id. Through the Canadian tip, investigators learned that their suspect's name was Robert Lackey.
235. Id. Witnesses from the 1982 investigation were re-interviewed and shown a 1979 picture of Lackey, whom they identified as Bob Moore.
236. Id. DNA testing was performed on fluid residue from underwear found under Lackey's bed at the mission; these fluids matched those found in the victim's rape kit.
237. Id. Lackey was tracked to Alabama where he was arrested.
238. Id. In March 2002, he was extradited to Kansas to stand trial.
239. Id.
240. Id. at 341.
241. Id. at 352. Although not specified in the opinion, the time of death appears critical to a possible alibi defense for Lackey, or to raise the possibility that S.B.'s boyfriend committed the crime.
242. See id.
243. Id. at 346, 352.
244. Id. at 341.
245. Id.
246. Id.
247. Id. at 342.
248. Id. at 346-48. The court noted that, at the time of S.B.'s death, there was a statutory requirement that coroners file autopsy reports with the district court.
249. Id. at 347-48. The court therefore concluded that "[s]ince a copy of the autopsy report was required to be filed with the clerk of the district court... it follows that the autopsy report would . . . qualify as a copy of an official record."
250. Id. at 348.
251. Id. at 348.
252. Id. at 349.
253. Id. While the coroner may have been required to perform an autopsy pursuant to Kansas statute, the defendant argued, all those situations where an autopsy is required are for the purposes of litigation.
254. Id. For example, the statute provides: When any person dies, or human body is found dead in the state, and the death is suspected to have been the result of violence, caused by unlawful means or by suicide, or by casualty, or suddenly when the decedent was in apparent health, or when decedent was not regularly attended by a licensed physician, or in any suspicious or unusual manner, or when in police custody, or when in a jail or correctional institution, ... or when the determination of the cause of a death is held to be in the public interest, the coroner ... shall be notified ....
255. KAN. STAT. ANN. §22a-231 (1995 & Supp. 2003),
256. quoted in Lackey, 120 P.3d at 349.
257. Therefore, to argue that the report was conducted in the regular course of business would not "analyze autopsy or coroner's reports by examining the reasonable expectation of how the reports will be used." Lackey, 120 P.3d at 349.
258. Lackey, 120 P.3d at 349.
259. Id. at 350-52
260. (citing Rollins v. State, 866 A.2d 926, 951-52 (Md. App. 2005),
261. off'd 897 A.2d 821 (Md. 2006)).
262. Id. at 351.
263. Id.
264. Id.
265. Id. at 351-52.
266. See id. at 352. The time of death, not the cause of death, was at issue, and Dr. Eckert did not speculate on the time of death in the report.
267. Id. The cause of death was not contested by the defendant, and the evidence of the cause of death was cumulative in light of the testimony of Dr. Mitchell and Dr. Clark.
268. Id.
269. See Rollins v. State, 897 A.2d 821, 833-34 (Md. 2006);
270. infra Part III.C.
271. Rollins, 897 A.2d at 823-24.
272. Id. at 824-25.
273. Id. at 825.
274. Id. at 826-27.
275. Id. at 827-28, 848. Dr. Pestaner had left the state of Maryland to practice in California.
276. Id. at 827 n.4. Interestingly, the trial judge "urged defense counsel to subpoena Dr. Pestaner" when the prosecution stated it might not do so.
277. Id. at 827 n.4.
278. Id. at 827. Throughout the trial, Rollins admitted to the burglary but maintained that he did not kill Ebberts.
279. Id. at 825. Instead, he argued that Ebberts died of natural causes.
280. Id. at 825, 827-28. But the jury disagreed, and convicted him of Ebberts' murder.
281. Id. at 823.
282. Id. at 828-35.
283. Id. at 835-38.
284. See id. at 845-46.
285. Id. at 841.
286. See id. at 845-46;
287. see also Rollins v. State, 866 A.2d 926, 952 n.12 (Md. Ct. Spec. App. 2005),
288. aff'd 897 A.2d 821 (Md. 2005) (explaining that the physical descriptions within the autopsy report were "objectively ascertained, generally reliable, and normally undisputed").
289. Rollins, 897 A.2d at 841.
290. See infra Part III.
291. See People v. Durio, 794 N.Y.S.2d 863, 866-69 (N.Y.Sup. Ct. 2005).
292. See id. at 866.
293. See id. at 867-69;
294. see also Rollins, 897 A.2d at 831 ("Crawford's reference to . . . business records as non-testimonial statements has led other jurisdictions to hold that finding evidence to be a business record automatically excepts that document from Confrontation Clause scrutiny.").
295. See Durio, 794 N.Y.S.2d at 867 ("The rationale for the business record exception is grounded in both necessity and enhanced reliability.").
296. See supra notes 92-94 and accompanying text.
297. See Crawford v. Washington, 541 U.S. 36, 51-52 (2004). The closest the Durio court came to analyzing whether the autopsy report statements fit within one of the Crawford formulations was in its conclusion that [t]he autopsy report in the case was not manufactured for the benefit of the prosecution. Indeed, an autopsy is often conducted before a suspect is identified or even before a homicide is suspected. That it may be presented as evidence in a homicide trial does not mean that it was composed for that accusatory purpose or that its use by a prosecutor is the inevitable consequence of its composition.
298. Durio, 794 N.Y.S.2d at 868-69.
299. Moreno Denoso v. State, 156 S.W.3d 166, 182 (Tex. Ct. App. 2005) ("Based on our review, the autopsy report in this case does not fall within the categories of testimonial evidence described in Crawford.").
300. Id.
301. See Crawford, 541 U.S. at 51-52
302. Moreno Denoso, 156 S.W.3d at 182.
303. Crawford, 541 U.S. at 68 ("Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.").
304. See id. at 51-52;
305. Moreno Denoso, 156 S.W.3d at 182.
306. Crawford, 541 U.S. at 52
307. (quoting Brief of the National Association of Criminal Defense Lawyers et al. as Amici Curiae in Support of Petitioner, supra note 79, at 3).
308. See, e.g., ALA. CODE § 15-4-1 (Lexis Nexis 1995) ("When a coroner has been informed that a person has been killed or suddenly died under such circumstances as to afford a reasonable ground for belief that such death has been occasioned by the act of another by unlawful means, he must forthwith make inquiry of the facts and circumstances of such death by taking the sworn statement in writing of the witnesses having personal knowledge thereof and submit the same to a judge of a court of record or a district attorney.").
309. Moreno Denoso, 156 S.W.3d at 180 & n.8
310. (citing TEX. CODE CRIM. PROC ANN. Art. 49.25, §§ 6, 9, 11 (Vernon 2006)).
311. Giannelli, supra note 7, at 27.
312. State v. Lackey, 120 P.3d 332, 348-49 (Kan. 2005);
313. Rollins v. State, 897 A.2d 821, 838 (Md. 2006).
314. Rollins, 897 A.2d at 838.
315. See id. at 838-39 ("It is clear that there is a statutory duty to prepare such a report when a death has occurred in 'any suspicious or unusual manner.'"
316. (quoting MD. CODE ANN., HEALTH- GEN. § 5-309(b) (Lexis Nexis 2005))).
317. Crawford v. Washington, 541 U.S. 36, 52 (2004)
318. (quoting Brief of the National Association of Criminal Defense Lawyers et al. as Amici Curiae in Support of Petitioner, supra note 79, at 3).
319. Lackey, 120 P.3d at 349.
320. Id.
321. Id.
322. Lackey, 120 P.3d at 351-52;
323. Rollins, 897 A.2d at 839-41.
324. See, e.g., Rollins v. State, 866 A.2d 926, 954 (Md. Ct. Spec. App. 2005),
325. aff'd 897 A.2d 821 (Md. 2006) ("[Findings in an autopsy report of the physical condition of a decedent, . . . 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." (emphasis added)).
326. See supra Part III.A.
327. See supra notes 92-94 and accompanying text.
328. See Lackey, 120 P.3d at 351 ("We believe the reason why these cases have not adopted the arguments and reasoning set forth by the defendant is that it would have the effect of requiring the pathologist [who performed the autopsy] to testify in every criminal proceeding. If, as in this case, the medical examiner who performed the autopsy is deceased or otherwise unavailable, the State would be precluded from using the autopsy report in presenting its case, which could preclude the prosecution of a homicide case.").