First Circuit Identifies And Discusses Crawford Confrontation Clause Open Issues On Expert Medical Testimony And Autospy Reports

On federal habeas review of a state first-degree murder conviction, Confrontation Clause was not violated by the admission of expert medical testimony concerning the cause of the victim’s death which was based in part on an autopsy report written by a non-testifying witness, because it is at the time of the defendant's conviction, as well as unclear today, how the Supreme Court would resolve whether autopsy reports were testimonial hearsay, in Nardi v. Pepe, 662 F.3d 107 (1st Cir. Nov. 22, 2011) (No. 11-1247)

Many expert witnesses under FRE 703 rely on information supplied by others who are not present to testify. This is problematic in terms of the Sixth Amendment Confrontation Clause. While "[s]everal circuits ... have said that the Confrontation Clause does not limit experts offering their own opinion regardless of the independent admissibility of the material relied upon," the First Circuit has recently noted that "[t]he Supreme Court is now considering whether the expert may disclose that material to explain the opinion's foundation" and that the answer is surely "uncertain." Nardi, 662 F.3d at 112 (citing People v. Williams, 238 Ill.2d 125, 345 Ill.Dec. 425, 939 N.E.2d 268 (July 15, 2010), cert. granted, _ U.S. _, 131 S.Ct. 3090 (U.S. June 28, 2011) (No. 10–8505)).

In the case, defendant Nardi was charged in state court with murdering his mother. During his trial, a doctor testified for the prosecution regarding the cause of the victim's death as revealed by an autopsy performed by another doctor who had since become unavailable to testify at the trial. The witness who did testify was a doctor:

who had extensive experience as a medical examiner but no involvement in [the victim]'s autopsy. Before testifying, [the expert witness] Dr. McDonough reviewed Dr. Weiner's autopsy report, as well as autopsy photographs, tissue slides and a toxicology report, and formed what he described as his own opinion about the cause of [victim]'s death.

Dr. McDonough testified during [defendant] Nardi's trial that in his expert opinion, the cause of [victim]'s death was consistent with asphyxia by suffocation. He also testified to several facts derived from the autopsy report, and revealed that Dr. Weiner [who performed the autopsy but was now unavailable to appear] had also concluded [victim] was suffocated.
Nardi, 662 F.3d at 109.


The defendant's theory was that the victim died of heart attack and that the defendant failed to report it because of panic. The defendant "offered his own medical expert to interpret the autopsy findings" and the defense expert opined that the cause of death was the victim's heart disease. Defense counsel also mounted a defense in which he focused on the prosecution expert witnessed, cross-examining him about the victim's "heart condition, the lack of certain injuries consistent with some forms of suffocation, and possible inconsistencies between findings in the [autopsy] report." The jury convicted the defendant and he appealed, contending that prosecution presentation of the victim's autopsy violated the defendant's confrontation right because he could not cross-examine the expert who performed the autopsy.

The First Circuit rejected the defense argument. After reviewing the development of Confrontation Clause jurisprudence since Crawford, which had become applicable at the time of the defendant's trial, the state court's application of Crawford was consistent with "clearly established Federal law," (e.g., “Supreme Court precedent in effect at the time of the state court adjudication"). As a result, the circuit affirmed the district court's denial of a writ of habeas corpus.

The circuit reasoned that application of the doctrines of Crawford was "uncertain" and that the state of Confrontation Clause jurisprudence "did not 'clearly establish' that either the autopsy report or [testifying expert] Dr. McDonough's opinion in partial reliance upon it were inadmissible under the Confrontation Clause." Nardi, 662 F.3d at 110-11. Specifically, the circuit rejected that subsequent decisions of the Supreme Court (e.g., Melendez–Diaz v. Massachusetts, 129 S.Ct. 2527, 2531, 2542 (2009) or Bullcoming v. New Mexico, ––– U.S. ––––, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011), provided a clear answer to the issue.

The issue of the admissibility of the autopsy report and testimony based on the autopsy report was unclear. As explained by the circuit:

Abstractly, an autopsy report can be distinguished from, or assimilated to, the sworn documents in Melendez–Diaz and Bullcoming, and it is uncertain how the Court would resolve the question. We treated such reports as not covered by the Confrontation Clause, United States v. De La Cruz, 514 F.3d 121, 133–34 (1st Cir. 2008), cert. denied, _ U.S. _, 129 S.Ct. 2858 (2009), but the law has continued to evolve and no one can be certain just what the Supreme Court would say about that issue today. However, our concern here is with “clearly established” law when the [state appellate court] acted.
Nardi, 662 F.3d at 111-12.


The circuit explained the uncertainties in Confrontation Clause jurisprudence:

That close decisions in the later Supreme Court cases extended Crawford to new situations hardly shows the outcomes were clearly preordained. And, even now it is uncertain whether, under its primary purpose test, the Supreme Court would classify autopsy reports as testimonial.

It is also unclear whether, even if the [U.S. Supreme] Court were to so classify them, the admissibility of in-court expert testimony that relied in some measure on such a report would be affected. In such a case, a witness exists who can be cross-examined; and a long tradition exists of allowing experts to rely on hearsay where it is common practice in the profession to rely upon such evidence. E.g., Fed. R. Evid. 703; 2 Broun et al., McCormick on Evidence § 324.3, at 417–19 (6th ed. 2006). One of the common examples is a testifying doctor who relies in part on medical tests or specialist reports.
Nardi, 662 F.3d at 112.

Nardi is also an interesting decision in light of the circuit's general history of the past eight years of Supreme Court case law on the Sixth Amendment. In a short three paragraphs the First Circuit attempts to isolate and analyze the recent changes in the configuration of the Confrontation Clause.

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Federal Rules of Evidence
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