Circuit Split: First Circuit Highlights Division On Whether Autopsy Reports Are Testimonial Under The Confrontation Clause

On federal habeas review, First Circuit finds there was no error in admitting the testimony of a chief medical examiner concerning the autopsy results of a non-testifying medical examiner, who was unavailable to testify at trial, under the Confrontation Clause, since the challenged state court ruling was not "contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States"; the opinion notes diverging case law on the issue whether an autopsy report is "testimonial" under the Sixth Amendment, in Hensley v. Roden, _ F.3d _ (1st Cir. June 20, 2014) (No. 13-1147)

Over the past few years, the Federal Evidence Blog has noted the division in the lower courts on whether an autopsy report is testimonial under the Confrontation Clause. See generally Circuit Split: Are Autopsy Reports Nontestimonial Under The Confrontation Clause? The First Circuit recently reviewed this issue and noted the continuing uncertainty among the courts.

Prior State Trial Court Proceedings And Federal Habeas Review

Defendant Hensley was prosecuted in state court for first degree murder of his wife after they were divorced and he no longer could visit their children. At the state trial, the chief medical examiner (Dr. Mark Flomenbaum) testified since the medical examiner (Dr. William Zane) who had performed the autopsy was unavailable:

[A]fter speaking to his credentials and explaining the autopsy process in general, [Chief Medical Examiner Flomenbaum] turned to [murder victim] Nancy's autopsy. He explained that he had reviewed the autopsy report, supporting materials, and photographs. Dr. Flomenbaum went on to opine that the cause of Nancy's death was "ligature strangulation," the mechanism being "blood starvation to the brain." He also testified regarding some of [medical examiner] Dr. Zane's findings, including the length of the struggle, which was put at two to ten minutes, and the nature of the struggle, e.g., the fact that it appeared that the abrasions on Nancy's neck were caused by her trying to pull the ligature off during strangulation. The autopsy report itself was not admitted into evidence; however, Dr. Flomenbaum had the report with him on the witness stand to refer to as needed.

Hensley, _ F.3d at _. The state jury convicted the defendant of first degree murder. He was sentenced to life in prison. The Massachusetts Supreme Judicial Court affirmed his conviction.

The defendant petitioned for federal habeas review contending that his rights under the Confrontation Clause were violated by the admission of the autopsy testimony. He argued that the state court decision was "contrary to governing Supreme Court precedent," under 28 U.S.C. § 2254(d)(1), citing Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527 (2009). The U.S. District Court denied his petition.

First Circuit Federal Habeas Review: Noting Uncertainty Under "Clearly Established Federal law" Standard

The First Circuit initially noted the review standard of the federal habeas claim. Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), federal habeas relief may only be granted if the state court ruling "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The petitioner had failed to meet this standard.

The "threshold question" was whether the testimony concerning the autopsy was testimonial. Hensley, _ F.3d at _ (citing United States v. Figueroa-Cartagena, 612 F.3d 69, 85 (1st Cir. 2010) ("If it is not, the Confrontation Clause 'has no application.'") (quoting Whorton v. Bockting, 549 U.S. 406, 420 (2007)). The First Circuit concluded that Melendez-Diaz v. Massachusetts failed to resolve this issue for testimony based on autopsy reports:

Melendez-Diaz did not say one way or the other whether autopsy reports should be considered testimonial. Indeed, the only allusion to autopsy reports in the majority opinion is in a footnote. There, in response to the dissent's suggestion that the Confrontation Clause is not designed to detect errors in scientific tests, and that other methods such as a new test might better serve that purpose, the majority provided autopsies as an example of a forensic test that cannot be repeated. See Melendez-Diaz, 557 U.S. at 318 & n.5; see also id. at 337 (Kennedy, J., dissenting). The Court in no way - explicitly or implicitly - indicated that autopsy reports are testimonial in nature. It simply used autopsies as an example of a forensic test where do-overs are not possible.

Hensley, _ F.3d at _.

Pre-Melendez-Diaz Cases

The circuit noted that the cases before Melendez-Diaz were against the petitioner's argument for federal habeas review:

  • First Circuit: United States v. De La Cruz, 514 F.3d 121, 133 (1st Cir. 2008) (an autopsy report is a non-testimonial business record)
  • Second Circuit: United States v. Feliz, 467 F.3d 227, 236 (2d Cir. 2006) (an autopsy report is a non-testimonial business record); see also Vega v. Walsh, 669 F.3d 123, 128 (2d Cir. 2012) (per curiam) (in denying federal habeas review, holding that the state court's decision was not contrary to Crawford as reasonable jurists could disagree as to whether autopsy reports came within Crawford's formulations)
  • Sixth Circuit: Mitchell v. Kelly, 520 F. App'x 329, 331 (6th Cir. 2013) (per curiam) (in denying federal habeas review, holding that the state court did not unreasonably apply Crawford "given the lack of Supreme Court precedent establishing that an autopsy report is testimonial"), cert. denied, 134 S.Ct. 312 (2013)
  • Ninth Circuit: McNeiece v. Lattimore, 501 F. App'x 634, 636 (9th Cir. 2012) (in denying federal habeas review, holding that because Crawford did not clearly establish that autopsy reports are testimonial, the state court's decision that portions of an autopsy report were admissible was not contrary to Supreme Court precedent), cert. denied, 133 S.Ct. 2357 (2013)

Post-Melendez-Diaz Cases

The First Circuit concluded that several cases after Melendez-Diaz also did not support the petitioner:

  • First Circuit: Nardi v. Pepe, 662 F.3d 107, 111 (1st Cir. 2011) (noting that "an autopsy report can be distinguished from, or assimilated to, the sworn documents in Melendez-Diaz")
  • Second Circuit: United States v. James, 712 F.3d 79, 99 (2d Cir. 2013) (deciding that the autopsy report at issue "was not testimonial because it was not prepared primarily to create a record for use at a criminal trial"), cert. denied, 2014 WL 2178370 (May 27, 2014)
  • California: People v. Dungo, 55 Cal. 4th 608, 286 P.3d 442, 450, 147 Cal. Rptr. 3d 527 (Cal. 2012) (finding that even though California's statutory scheme required the reporting of suspicious autopsy findings to law enforcement, an autopsy serves several purposes and the "autopsy report itself was
    simply an official explanation of an unusual death, and such official records are ordinarily not testimonial")
  • Florida: Banmah v. State, 87 So. 3d 101, 103 (Fla. Dist. Ct. App. 2012) (concluding that autopsy reports are not testimonial because they are made pursuant to a statutory duty and not, in all instances, used in prosecutions)
  • Illinois: People v. Cortez, 931 N.E.2d 751, 756 (Ill. App. Ct. 2010) (finding that Melendez-Diaz did not upset the court's prior holdings that autopsy reports are business records without Crawford implications).

However, the circuit noted that there were some cases that concluded that autopsy reports may be testimonial, including:

  • Eleventh Circuit: United States v. Ignasiak, 667 F.3d 1217, 1231 (11th Cir. 2012) (holding that, applying the logic of Crawford, Melendez-Diaz, and Bullcoming, the autopsy reports at issue were testimonial)
  • Massachusetts: Commonwealth v. Avila, 912 N.E.2d 1014, 1029, 1030 n.20 (Mass. 2009) (finding that the medical examiner's autopsy report statements were testimonial)
  • Oklahoma: Cuesta-Rodriguez v. State, 241 P.3d 214, 228 (Okla. Crim. App. 2010) (holding that in light of Oklahoma's statutory scheme relative to the medical examiner's duty in the case of a suspicious death, an autopsy report in such cases would be testimonial)
  • Texas: Wood v. State, 299 S.W.3d 200, 209-10 (Tex. Ct. App. 2009) (holding that although not all autopsy reports are testimonial, given the suspect nature of the victim's death, the subject autopsy report was testimonial)

Given the division on the issue among the courts, the First Circuit noted that the focus was on the state of the law at the time of the challenged state court ruling, "even after Melendez-Diaz had been around a little longer, it was still uncertain where autopsy reports stood," which "strongly undercuts Hensley's claim that the testimonial nature of autopsy reports was clearly established." The "contrary to" standard could not be satisfied in this case. Therefore, the First Circuit affirmed the denial of federal habeas relief on this issue.

Conclusion

The Hensley case shows the continuing uncertainty in the lower courts whether medical expert testimony concerning an autopsy performed by non-testifying witnesses is testimonial under the Confrontation Clause. Earlier this year, the Federal Evidence Blog noted that this issue had been presented for review by the Supreme Court. See Supreme Court Watch: Are Autopsy Reports Admissible Under The Confrontation Clause? However, the Supreme Court denied the certiorari petition. See Supreme Court Watch: Supreme Court Declines To Hear Confrontation Clause Case Concerning Admissibility Of Autopsy Reports. Given the diverging case law, ultimately the Supreme Court may have to reconcile this split among the lower courts.

For other blog posts noting this issue, consider:

For two recent articles reviewing recent Supreme Court and other cases, and taking contrary positions, see Daniel J. Capra and Joseph Tartakovsky, Autopsy Reports and the Confrontation Clause: A Presumption Of Admissibility, 2 Virginia Journal of Criminal Law 62 (2014); Marc D. Ginsberg, The Confrontation Clause and Forensic Autopsy Reports — A “Testimonial”, 74 Louisiana L. Rev. 118 (Fall 2013)

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Photo Description: First Circuit Court of Appeals, John Joseph Moakley United States Courthouse, Boston, Massachusetts. Learn more about the courthouse.

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