Yesterday the Supreme Court declined to hear a capital case raising the issue of whether autopsy reports are "testimonial" under the Confrontation Clause, in Medina v. Arizona (No. 13-735); the division on this issue remains in the lower courts; from a broader view, uncertainty continues concerning the application of the Confrontation Clause following the decision in Williams v. Illinois, 567 U.S. _, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012), and what constitutes "testimonial" statements
"Whether an autopsy report created as part of a homicide investigation, and asserting that the death was indeed caused by homicide, is 'testimonial' under the Confrontation Clause framework established in Crawford v. Washington, 541 U.S. 36 (2004)."
See generally Supreme Court Docket Medina v. Arizona (No. 13-735). As is the custom, no reason was given for the denial.
As previously reported in the Federal Evidence Blog, this issue has divided the lower courts. See Supreme Court Watch: Are Autopsy Reports Admissible Under The Confrontation Clause? (noting division and providing case briefs); Prospective: Ten Key 2013 Evidence Issues: Circuit Split: Are Autopsy Reports Nontestimonial Under The Confrontation Clause?.
The issue goes to the scope of what are "testimonial" statements under the Confrontation Clause. Ten years ago, when the Crawford decision was issued, the Court explicitly left “for another day any effort to spell out a comprehensive definition of testimonial” even recognizing that the Court’s “refusal to articulate a comprehensive definition in this case will cause interim uncertainty.” Crawford, 541 U.S. at 68 & n.10. The Medina case is one among other cases demonstrating continued uncertainty on this central question.
The most recent plurality decision of the Supreme Court in Williams v. Illinois, 567 U.S. _, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012), also contributes to the uncertainty in applying the Confrontation Clause. In Williams a plurality concluded that challenged expert testimony was not "testimonial". In fact, in Medina, the Arizona Supreme Court majority applied Williams in concluding the autopsy report in the case was not testimonial under the Confrontation Clause.
While the Supreme Court declined to hear the Medina case, as recently noted in the Federal Evidence Blog, there are other cases which may provide a chance for clarification:
It is not a matter of "if" but "when" the Supreme Court will reconsider the application of the Confrontation Clause to expert testimony that is based on statements of others who do not testify.
Supreme Court Watch: Is The Application Of The Confrontation Clause To Expert Testimony Issue Ripening For Review? In the meantime, the Federal Evidence Blog will continue to monitor developments.
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