Second Circuit Highlights Breadth Of Uncertainty In Applying The Confrontation Clause In The Wake Of Williams v. United States

In considering admission of an autopsy report under the Confrontation Clause, Second Circuit notes that the latest Supreme Court guidance is "intractable" and "fragmented" since "[n]o single rationale disposing of the Williams case enjoys the support of a majority of the Justices"; in upholding the admission of the autopsy reports authored by non-testifying witnesses and surrogate testimony about the conclusions in the report, the circuit notes a division in the courts on the admissibility of autopsy reports under the Confrontation Clause, in United States v. James, 712 F.3d 79 (2d Cir. March 28, 2013) (Nos. 09-2732-cr, 09-2804-cr)

Earlier this month, the Federal Evidence Blog noted the continuing uncertainty concerning the application of the Confrontation Clause to expert testimony based on last year's plurality decision in Williams v. Illinois, 567 U.S. _, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012). See Seventh Circuit Applies The Divided Williams v. Illinois Opinion To Expert Testimony. The Second Circuit has now joined the Seventh Circuit in noting the confusion sown by the Williams decision. These cases show that the Supreme Court will need to resolve the uncertainty at some point. Perhaps the latest case may provide a vehicle to do so.

Summary Trial Facts

The case involved a racketeering prosecution based on a conspiracy to fraudulently obtain life insurance and to commit murders to collect on the policies. Autopsy and toxicology reports and related expert testimony were presented concerning the cause of death, which were challenged under the Confrontation Clause since the defendants were not permitted a chance to cross-examine the non-testifying authors about the conclusions in the report. Two experts testified based on the reports of other unavailable witnesses, one who “had died between his performance of the test and the time of trial” and another who was no longer employed in the office. After their jury trial convictions, the defendants avoided the death penalty but were sentenced to life imprisonment. On appeal, they challenged the admission of the reports and expert testimony.

Second Circuit Analysis

The Second Circuit noted that it had previously upheld the admission of autopsy reports as a business or public record under the Confrontation Clause. See United States v. Feliz, 467 F.3d 227, 237 (2d Cir. 2006) (autopsy reports as business reports were “not subject to the strictures of the Confrontation Clause”). However, the defendants contended that subsequent Supreme Court cases called into question the Feliz decision, including under Bullcoming v. New Mexico, 564 U.S. __, 131 S.Ct. 2705 (2011) and Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527 (2009). The circuit held:

[E]ven if these cases cast doubt on any categorical designation of certain forensic reports as admissible in all cases, the autopsy reports in this case are nevertheless not testimonial — and therefore do not implicate the Confrontation Clause — because they were not created "for the purpose of establishing or proving some fact at trial." Melendez-Diaz, 557 U.S. at 324; see also Bullcoming, 131 S. Ct. at 2719-20 (Sotomayor, J., concurring) ("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.'" (quoting [Michigan v. ]Bryant, [562 U.S. _,] 131 S.Ct. [1143,] at 1155 [(2011)]).
James, 712 F.3d at 88.

Uncertainty Following Williams

The circuit reviewed the recent Supreme Court cases including the decision from last Term in Williams v. Illinois, 132 S.Ct. 2221 (2012), involving expert testimony that "a DNA profile produced by an outside laboratory, Cellmark, matched a profile produced by the state police lab using a sample of petitioner's blood." Id. at 2227. The circuit noted that no clear guidance was provided based on “a plurality opinion, two concurrences, and a dissent,” and highlighted the dissent of Justice Kagan:

What comes out of four Justices' desire to limit Melendez-Diaz and Bullcoming in whatever way possible, combined with one Justice's one-justice view of those holdings, is — to be frank — who knows what. Those decisions apparently no longer mean all that they say. Yet no one can tell in what way or to what extent they are altered because no proposed limitation commands the support of a majority.
James, 712 F.3d at 94 (quoting Williams, 132 S.Ct. at 2227). As the circuit noted:

We are confronted in this case with the puzzle Justice Kagan described: Which of the foregoing principles enunciated by various members of the Supreme Court controls here? ... We agree with Justice Kagan that this problem is intractable. No single rationale disposing of the Williams case enjoys the support of a majority of the Justices. Ordinarily, "[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as the position taken by those members who concurred in the judgments on the narrowest grounds." Marks v. United States, 430 U.S. 188, 193 (1977) (internal quotation marks omitted). But what is the narrowest ground in the disposition in Williams? ... Williams does not, as far as we can determine, using the Marks analytic approach, yield a single, useful holding relevant to the case before us. It is therefore for our purposes confined to the particular set of facts presented in that case. We think it sufficient to conclude that we 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.
James, 712 F.3d at 95-96 (citations and footnote omitted).

Application

In applying pre-Williams precedent, the Second Circuit affirmed the admission of the challenged autopsy report and a toxicology report without the testimony of the authors who prepared the reports after concluded they were “not testimonial” as they were not made with the primary purpose of creating a record for use at a criminal trial. The surrogate testimony for tests performed by others who were no longer available was also not testimonial since the reports were "not prepared primarily to create a record for use at a criminal trial.” James, 712 F.3d at 99.

Circuit Split Highlighted

The Second Circuit noted a split between federal and state courts on the admissibility of autopsy reports under the Confrontation Clause, citing:

  • United States v. Moore, 651 F.3d 30, 73 (D.C. Cir. 2011) (concluding that Chief Medical Examiner’s surrogate testimony on autopsy reports prepared by others violated the Confrontation Clause where law enforcement officers observed the autopsies and participated in the creation of the reports -- circumstances that “would have signaled to the medical examiner that the autopsy might bear on a criminal investigation”)
  • State v. Locklear, 363 N.C. 438, 452, 681 S.E.2d 293, 305 (2009) (“Thus, when the State seeks to introduce [autopsy reports], absent a showing that the analysts are unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them such evidence is inadmissible under Crawford.”) (quotation marks, citation, and brackets omitted)
The Federal Evidence Blog earlier noted a split on the admissibility of autopsy reports, including in our annual "Prospective: Ten Key 2013 Evidence Issues" in January. See, e.g., Circuit Split: Are Autopsy Reports Nontestimonial Under The Confrontation Clause? (collecting cases); Admission Of Autopsy Reports Violated Confrontation Clause.

Concurring Opinion

Court of International Trade Judge Richard K. Eaton concurred, noting that there was no plain error in admitting the autopsy report for which no objection was lodged but he “respectfully part[ed] company with the majority, however, on its conclusion that the autopsy report was ‘not testimonial’ for purposes of the Confrontation Clause.”

Summary

In one month, the Second and Seventh Circuits have highlighted the challenges in admitting expert testimony under the Confrontation Clause following the plurality decision in Williams. Other courts are likely to follow as the plurality decision is nearly incapable of discerning guiding principles under the Confrontation Clause. Until the Court steps in to address this uncertainty, the lower courts will continue to wrestles with the contours of expert testimony under the Confrontation Clause.

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