2d Cir.: Autopsy report not "testimonial" under Crawford v Washington

US v Erbo, 2006 WL 3021118 [2d Cir 2006]

In a disappointing decision, the Second Circuit has held that autopsy reports are not "testimonial" statements within the meaning of Crawford v Washington because the reports can be classified as business records. The Second Circuit Blog has a full analysis of the decision here, and they were kind enough to quote from my previous post on this issue (available here). The language quoted from me by the Second Circuit Blog was taken from a brief where I argued this issue before the Fourth Department; the result in that case was similarly disappointing. (See People v Bryant, 27 AD3d 1124 [available here] [previous post here].)

When it decided People v Goldstein earlier this year, the New York Court of Appeals at least hinted that it would give "testimonial" a broader definition that would seemingly cover autopsy reports . (See People v Goldstein, 6 NY3d 119 [2005] [see my previous post on Goldstein here].) It might be a good idea to start preserving Crawford-type issues in State Constitutional terms, just in case the Court of Appeals decides to afford New York citizens greater protections under the State Confrontation Clause than the Second Circuit has read into the federal clause.