AD4: Autopsy report "does not for the most part constitute testimonial evidence"

People v Bryant, __ AD3d __ [available here]

In a decision handed down today, the Fourth Department has ruled that an autopsy report is only to be considered "testimonial" hearsay to the extent the report contains "the opinions of the pathologist." (People v Bryant, __ AD3d __ [4th Dept 2006].) Otherwise, according to the Court, an "autopsy report . . .does not for the most part constitute testimonial evidence." (Id. at __.) I have previously posted on this case here. I cannot disagree strongly enough with the Fourth Department's analysis. There is simply no rational basis for distinguishing between the factual findings of a pathologist contained in an autopsy report and the pathologist's ultimate opinion concerning the cause and manner of death. In a murder case, the entire autopsy report--both the factual findings and the opinion content--is prepared with the reasonable expectation that the report will be used prosecutorially and will be available for use at a later trial. At a murder trial, the factual findings of an autopsy report--i.e. information about the type and extent of a victim's injuries--are relied on by the testifying medical examiner as a basis for any opinion testimony. It seems if the right of confrontation demands the opportunity to cross-examine a pathologist concerning the ultimate opinion as to the cause of death, the confrontation right must also provide the opportunity to test the factual underpinnings of that opinion by cross-examination. The distinction drawn by the Fourth Department seems rather arbitrary, and unfortunately the three sentences devoted to explaining the Court's reasoning do not provide much illumination.

It is also difficult to square the Fourth Department's decision with the recent Court of Appeals decision in People v Goldstein (__ NY3d __ [previously discussed here]). In Goldstein, the Court of Appeals found that statements made by witnesses to the People's expert psychiatrist were "testimonial" under Crawford because the witnesses "should reasonably have expected their statements to be used prosecutorially or to be available for use at a later trial." (People v Goldstein, __ NY3d __.) Certainly the Court of Appeals drew no distinction between purely fact-based statements and opinions--rather, the only relevant question is whether a witness should expect the statement to be used by the prosecution at a subsequent trial. Under that simple test, an autopsy report--both the factual portion and any opinion content--is testimonial. The Fourth Department's decision in Bryant does not address Goldstein or otherwise attempt to justify its reasoning.

The Fourth Department also found that statements made by the victim in response to police questioning and reduced to a written deposition by the interviewing police officer were not "testimonial" because "[t]hose statements were made by the victim outside the context of any 'structured police questioning', and thus those statements did not constitute testimonial evidence." (Bryant, __ AD3d at __ [quoting Crawford].) It is not clear how much more "structured" the questioning would have to be before the Fourth Department would hold such responses testimonial. But again the Court of Appeals' decision in Goldstein seems at odds with the Fourth Department's decision--a crime victim who is responding to questions from a police officer and who signs a deposition written out for her by the police officer based on her responses should "reasonably have expected their statements to be used prosecutorially." (Goldstein, __ NY3d at __.) Again, the Fourth Department's decision does not deal with Goldstein.

Also puzzling is the Fourth Department's holding in Bryant that a statement given by an assault victim, some 9 hours after the alleged assault and where it can be inferred that the victim was sleeping for all or most of that time, was nonetheless an "excited utterance" for hearsay purposes. (See Appellant's Brief (on file with the Fourth Department) at 18-22; Respondent's Brief at 22.) The test for an excited utterance is whether the statement is made "while the nervous excitement may be supposed to still dominate the reflective powers." (People v Brown, 70 NY2d 513, 518 [1987].) I would think the fact that the victim was able to fall asleep is evidence that whatever "nervous excitement" may have been caused by the assault had dissipated. The Fourth Department does not address the fact that the victim was asleep or that over 9 hours passed between the assault and the statement; nor does the Fourth Department discuss the Court of Appeal's recent holding that there is no "injury" or pain exception to the hearsay rule. (See People v Johnson, 1 NY3d 302, 307 [2003].)