Crawford Error Was Not Plain Error

Seventh Circuit concludes that even assuming the admission of a medical examiner’s findings (listing the case of death) violated the Confrontation Clause, the constitutional error was not plain error and the conviction for distributing heroin resulting in death was affirmed; case also notes distinction between waiver and forfeiture of an issue on appeal, in United States v. Doyle, _ F.3d _ (7th Cir. Sept. 11, 2012) (No. 11-3077)

The Seventh Circuit recently considered a case in which any error in admitting a medical form under the Confrontation Clause, which was not objected to at trial, did not compel reversal of the conviction since no plain error was shown.

In the case, defendant Doyle was prosecuted for distributing heroin resulting in death. At trial, on the issue whether the heroin he supplied caused the death, the government introduced the medical examiner’s findings (listing the case of death as “Acute heroin and cocaine intoxication” with the words “and cocaine intoxication” crossed out). Defense counsel responded that to “help [move] things along,” he did not object “to any of the Government’s medical reports coming in as evidence.” Doyle, _ F.3d at _. The medical author of the report was not cross-examined at trial. Other medical witnesses testified. After the defendant’s conviction, on appeal he claimed for the first time that the admission of the medical findings violated the Confrontation Clause.

Waiver Or Forfeiture?
The Seventh Circuit affirmed the conviction. Initially, the circuit confronted the government’s argument that the constitutional challenge was waived. As the circuit explained:

The difference between waiver and forfeiture is that waiver precludes review, whereas forfeiture permits us to correct an error under a plain error standard. United States v. Olano, 507 U.S. 725, 732-34 (1993). Forfeiture occurs by accident, neglect, or inadvertent failure to timely assert a right. Id.; United States v. Cooper, 243 F.3d 411, 415-16 (7th Cir. 2001). Waiver occurs when a defendant or his attorney manifests an intention, or expressly declines, to assert a right. Cooper, 243 F.3d at 415-16.

Doyle’s counsel voluntarily and affirmatively stated that he had no objection to any Government exhibits being entered into evidence. Though that suggests waiver, the record indicates that Doyle’s failure to object may have been actually an oversight. Doyle believed that all of the Government’s exhibits being entered into evidence, including the findings form, were created by Dr. Burch, who was available to provide live testimony. It was not until Doyle’s counsel had the opportunity to cross-examine Dr. Burch that Doyle learned that Dr. Burch was not the author of the findings form. By then it was too late; the Government’s evidence was in. So we will assume that there was only a forfeiture and review for plain error. See United States v. Curtis, 280 F.3d 798, 801 (7th Cir. 2002).

Doyle, _ F.3d at _.

Plain Error Review
Under plain error review, the defendant held the burden to show: “(1) that there was in fact an error; (2) that the error was plain; and (3) that the error ‘affects substantial rights’,” and (4) persuade the circuit to exercise its “discretion to correct the error but only if it ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’” Doyle, _ F.3d at _ (quoting Unites States v. Van Allen, 524 F.3d 814, 819 (citations omitted))

The circuit assumed that the first three elements had been met, that is, “that the Medical Examiner’s findings form [wa]s testimonial, and that its admission was an error, and a plain one at that.” Doyle, _ F.3d at _. The defendant could not show that his substantial rights were affected.

The circuit rejected the defense claim that the constitutional violation alone was sufficient for reversal of the conviction:

Doyle provides no evidence, much less an argument, to make that showing; instead he relies simply on a Crawford violation to prove that his substantial rights were affected. But the mere presence of a Crawford violation does not mean that the outcome of the trial probably would have been different; indeed, we find that, in this case, the error had no effect on the outcome.

Doyle, _ F.3d at _.

The evidence that the victim died from heroin provided by the defendant was overwhelming. The evidence included a toxicologist report, a doctor who made a determination on the cause of death after attending the autopsy and reviewing other reports. Another doctor testified about his forensic investigation, telling the jury that the victim “had taken a lethal dose of heroin and that cocaine did not contribute to his death.” The toxicology report of the second testifying doctor was introduced. Based on this evidence, any constitutional error did not affect the outcome of the trial.

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Federal Rules of Evidence
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