Crawford and autopsy reports

I'm currently working on a brief where the medical examiner who performed the autopsy and prepared the victim's autopsy report did not testify at trial, and was at no prior point subject to cross-examination about the contents of the autopsy report. Another medical examiner testified instead. The victim's autopsy report was admitted as a business record, and the testifying medical examiner--who neither participated in the autopsy nor assisted in any way in the preparation of the report--was allowed to testify to the factual contents of the autopsy report. I am arguing that the autopsy report was testimonial under Crawford, and should not have been admitted into evidence absent the required cross-examination of the medical examiner who performed the autopsy and prepared the document. Despite an autopsy reports seeming fit into the factors set forth in Crawford describing a testimonial statement, the majority of courts that have reached the issue have held an autopsy report is not testimonial in nature and admissible under the business records exception to the hearsay rule. (See People v Durio, 2005 NY Slip Op 25085 [NY Sup Ct Kings County 2005]; Denoso v State, 156 SW3d 166 [Texas Crt App 2005]; Rollins v State, 866 A2d 926 [Maryland Crt Special App 2005]; State v Leonard, --- So.2d ---, 2005 WL 1039635 [Louisiana Crt. App 1st Cir 2005]; People v Miller, 2004 WL 2534367 [Michigan Crt App 2004].) I think that the reasoning employed by these courts is flawed and circular, for the reasons stated below.

The reasoning underpinning those decisions holding an autopsy report to be non-testimonial can be simply summarized: 1) an autopsy report has traditionally been considered a "business record" for hearsay purposes, 2) Justice Scalia noted in Crawford (when discussing those hearsay exceptions that existed at the time of the 6th Amendment's creation) that "[m]ost of the hearsay exceptions covered statements that by their nature were not testimonial--for example, business records or statements in furtherance of a conspiracy; thus 3) since Crawford states business records are "by their nature . . . not testimonial", and because autopsy reports are treated as business records, therefore autopsy reports are not testimonial. (See, e.g., Rollins v State, 866 AD2d 926, 945 [Maryland 2005]; Crawford, 541 US at 56 [emphasis added].)

This reasoning, while somewhat appealing for its superficial logic, ignores the core concerns of Crawford and, by accepting as given that autopsy reports are "business records" and working towards a conclusion from that point, avoids asking the very question that Crawford and the 6th Amendment requires--whether an autopsy report, by the nature of its content and purpose, is testimonial. Almost any document can be made into a "business record", because the foundational requirements for establishing a "business record" have nothing whatsoever to do with the actual content or purpose of the document, but rather on the manner in which the document is generated and kept. (See CPLR 4518 [allowing business record to proof of act recorded if "it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter."]) Police reports containing the results of custodial interrogation can easily meet the technical "business records" requirement if they are prepared and kept in a manner meeting CPLR 4518's foundational requirements; however, these statements nevertheless fall squarely within the definition of "testimonial" under Crawford and excluded absent an opportunity to cross-examine the declarant. (See Practice Commentaries to CPLR 4518 [2005 Electronic Update] ["Are business records within the universe of testimonial statements? At one point in Crawford, the Court cited ‘business records [and] statements in the furtherance of a conspiracy' as examples of nontestimonial hearsay that the Framers would have exempted from the confrontation requirement. On the other hand, police reports prepared in anticipation of a criminal prosecution, even if technically within the business records exception, would seem to fall within the first and third of the Court's alternative definitions of testimonial statements."].)

The idea that the analysis can begin and end with the observation that autopsy reports have traditionally been admissible hearsay under the "business records" exception ignores the broader implication of Crawford that guts the rationale for treating "business records" as admissible hearsay if the person preparing the document is not subject to cross. "The justification for the admission of regularly kept business records is based upon grounds similar to all of the hearsay exceptions, namely, that such records bear a great degree of reliability." (People v Selassie, 140 Misc.2d 616, 619 [NY Sup Ct Bronx County 1988].) But Crawford expressly held that the 6th Amendment "commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination . . . [d]ispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes." (Crawford, 541 US at 62.) Thus, Justice Scalia's observation that most "business records" are not testimonial in nature should not be taken as a blanket rule that any document that would have been treated as a "business record" under a pre-Crawford analysis is therefore not testimonial, because to do so would short-circuit the analysis that Crawford and the 6th Amendment requires.

Undoubtedly, most business records will not be testimonial, simply because most businesses do not keep records with an eye towards prosecuting criminals. The phone company keeps billing records in order to be paid and to have a record of payment; the shopkeeper keeps inventory records to better run his business; but a medical examiner who prepares an autopsy report does so primarily to "collect[...] and document[...] evidence collection for legal proceedings." Under any definition suggested by Crawford, the overriding intent, purpose and substance of an autopsy report places it squarely within the Supreme Court's concept of "testimonial," because autopsy reports are created primarily to facilitate the prosecution of alleged murderers. (Crawford, 541 US at 51-52.) To argue around this conclusion because autopsy reports were admissible as "business records" pre-Crawford is to exploit a loophole that a plain reading the entire Crawford decision neither supports nor intends.

The problem courts seem to be having is recognizing that Crawford fundamentally changed the game--no longer is the "reliability" of the statement (as roughly measured by the various hearsay "exceptions") the focus--rather, the first question to answer is whether a statement is testimonial or not. If not testimonial, a statement is probably subject to the old hearsay rules and can be admitted if covered by a hearsay exception or otherwise reliable (although Crawford does not expressly decide that question). But if a statement is testimonial, "the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination"--regardless of whether the statement falls within a classic hearsay exception or is otherwise "reliable." (Id. at 68.) As Justice Scalia put it in Crawford, the confrontation clause "commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The Clause thus reflects a judgment not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined." (Crawford v Washington, 541 US 36, 61 [2004].)


The problem is that Crawford does not define the term "testimonial", or otherwise set forth a bright-line test for determining whether a statement is "testimonial" or not. (Id. at 68 ["We leave for another day any effort to spell out a comprehensive definition of ‘testimonial.'"].) In general, Justice Scalia observed, "[t]estimony [...] is typically ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.' An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.'" (Id. at 51.) Beyond this general definition, Justice Scalia noted three possible "formulations of this core class of ‘testimonial' statements: 1) "‘ex parte in-court testimony or its functional equivalent--that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially," 2) statements contained in "formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions," and 3) statements "that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." (Id. at 51-52.) Common to all three of these potential standards is one factor--whether a reasonable, objective declarant would expect the statement to be used by the prosecution at trial.

Under Justice Scalia's general definition of ‘testimonial' or any of the three potential "formulations" set forth in Crawford, an autopsy report is testimonial. A report detailing autopsy findings, prepared by a medical doctor employed by the government, is by its nature a "‘solemn declaration or affirmation made for the purpose of establishing or proving some fact,'" and far removed from the hypothetical non-testimonial "casual remark to an acquaintance." (Id. 541 US at 51.) An autopsy report is nothing more than a written record of a medical examiner's findings during autopsy related to manner and cause of death, and is in every important way simply a written version of a medical examiner's testimony at trial. Thus, it is hard to see how an autopsy report is anything but the "functional equivalent" of a medical examiner's expected "in-court testimony", and thus testimonial under at least one of Crawford's proposed "formulations" of the term. (See Crawford, 541 US at 51-52.) That an autopsy report is not technically in the form of an affidavit (specifically mentioned in Crawford) should not change the otherwise testimonial nature of an autopsy report. Indeed, in most cases, the testifying medical examiner (if he or she did not prepare the autopsy report and did not participate in any way in the autopsy of the victim) do little more at trial than vocalize the contents of the autopsy report for the jury.

As to the remaining Crawford factors, there can be little question that a medical examiner prepares an autopsy report with the reasonable expectation that such a report will "be used prosecutorially" and will "be available for use at a later trial." (Crawford, 541 US at 51-52.) In fact, the Monroe County Medical Examiner's office acknowledges this primary focus of an autopsy report, explaining on their web page that the "autopsy section specifically . . . [c]ollects and documents evidence collection for legal proceedings." To pretend that autopsy reports are not generated in large part with an eye towards prosecuting murder defendants is to indulge a fiction.

Crawford in the Fourth

It has been over a year since the United States Supreme Court set the law of "hearsay" on its head with Justice Scalia's decision in Crawford v Washington (541 US 36 [2004]). For those unfamiliar with Crawford, go here for a minute and come up to speed. Pretty radical shift, eh? In the year since it was decided, Crawford has been cited over 2000 times in cases and articles around the country. I am researching a Crawford point for a brief I am working on, and was curious to see how Crawford has been received in the Fourth Department. To my surprise, Crawford has only been cited in three Fourth Department cases, and has not received extensive treatment in any of those opinions. In People v Lewis (11 AD3d 954), the Fourth held a co-defendant's statement was testimonial under Crawford, but ruled the statement nonetheless admissible because it was "not offered for the truth of the facts asserted therein." (Id.) In People v Bradley (15 AD3d 840), defendant's Crawford issue was found to be unpreserved. And in People v Sampel (16 AD3d 1023), Crawford was cited in a concurring opinion by Judge Hurlbutt to point out the flaw in the majority's reasoning. Perhaps it will just take some time for cases raising Crawford-type confrontation points to percolate up to the Fourth. Given the Fourth's focus on preservation issues, it is my suspicion that any cases with trial dates pre-dating Crawford will suffer from preservation problems, i.e. the Fourth will refuse to reach the Crawford issues based on trial counsel's failure to frame the issue in specific 6th amendment terms. But it will be interesting to see what the Fourth Department will do with a full-blown, well-preserved Crawford point when confronted with one.

The strange case of Wardlaw, cont.

The most interesting decision handed down by the Fourth this term is People v Wardlaw, where the Court held (apparently for the first time in New York) that "the deprivation of a defendant's right to counsel at a pretrial suppression hearing is subject to constitutional harmless error." (Wardlaw, KA 02-02295 at 5.) In my first post on Wardlaw on the day it was handed down, I noted that it appeared the Fourth Department was getting a little ahead of itself, as there existed Court of Appeals precedent that ruled a violation of the right to counsel is not subject to any type of harmless error analysis, regardless of what stage that deprivation occurs. Upon further review, it seems even more clear that Wardlaw makes new law in direct contrast with existing Court of Appeals precedent.

The problematic case for the Fourth Department here is People v Hilliard (73 NY2d 584). In Hilliard, the facts were summarized by the Court of Appeals as follows:

Defendant was arrested August 7, 1985 and arraigned later that day by the local Town Justice. While being arraigned, defendant continually failed to comply with the Judge's orders to quiet down. As a result, he was found in contempt of court and the Judge ordered his counsel not to have contact with him for a period of 30 days following arraignment.

(Hilliard, 73 NY2d at 586.)

After noting a previous decision (People v Felder) where the Court refused to apply any type of harmless error analysis to "the denial of the constitutional right to counsel", the Court in Hilliard likewise refused to apply a harmless error analysis to the deprivation of the right to counsel suffered by Hilliard. (Id.) The Court of Appeals refused to apply the harmless error doctrine even though the denial of right to counsel occurred at a pre pre-trial stage--defendant was represented at arraignment and at every other court proceeding before the lower court. In so holding, the Court of Appeals recognized that "there are some errors which are so serious that they operate to deny defendant's fundamental right to a fair trial. In such cases the reviewing court must reverse the conviction and grant a new trial, without evaluating whether the errors contributed to the defendant's conviction." (Id.)

The Fourth Department in Wardlaw correctly noted that the Court of Appeals has shown signs of revisiting Hilliard, but none of the cases cited in Wardlaw actually address whether the denial of the right to counsel can ever be harmless. The closest the Court of Appeals has come is People v Slaughter; from that decision:

The People also argue that the hearing court's failure to warn defendant about the dangers of proceeding pro se was harmless error. Again, we disagree. Assuming, without deciding that harmless error analysis applies here (cf. People v Hilliard, 73 NY2d 584, 587 [harmless error doctrine does not apply to an affirmative denial of the constitutional right to counsel]), we hold that defendant's ineffective waiver was not harmless.

Thus, while Slaughter certainly suggests that the Court of Appeals would entertain the type of reasoning used by the Fourth Department in Wardlaw, it is hard to escape the fact that Slaughter also expressly acknowledges that the current state of Court of Appeals precedent, as embodied in Hilliard, mandates that "harmless error doctrine does not apply to an affirmative denial of the constitutional right to counsel." (Slaughter, 78 NY2d 485, 492.) The Fourth Department frames its Wardlaw decision as addressing "the issues that the Court of Appeals declined to decide in People v Slaughter"--however, the Fourth is hardly writing on a blank slate here. As Slaughter itself expressly recognizes, the Court of Appeals has addressed this issue once before in Hilliard, and found "harmless error doctrine does not apply to an affirmative denial of the constitutional right to counsel." (Slaughter, 78 NY2d at 492.) Until the Court of Appeals sees fit to revisit and refine Hilliard, that is the law. The Fourth Department's decision in Wardlaw presumes to do what only the Court of Appeals has the authority to do--that is, revisit establish Court of Appeals precedent and change it.

April Term: Unofficial Stats

Here are my unofficial stats for the Fourth Department's April term, based on the cases posted on the Court's website:

Total criminal cases decided: 66
Reversals or modifications: 6

Of these reversals, only one was based on a substantive lower court error (People v Alexander Hamilton, KA 03-01863 [suppressing written statements given after Miranda warnings where first pre-Miranda oral statement was in response to custodial interrogation, and "Defendant gave the second written statement after a break of 10-15 minutes, admitting that he participated in the crimes. We conclude that the written statements were given in 'a single continuous chain of events'"].) Hamilton's plea entered after the suppression denial was vacated and the matter sent back down. The only other notable decisions involved illegal sentences (People v Figuera (court vacated sentences as illegal where the "court imposed what it described as the 'mandatory minimum fines' on those counts [of misdemeanor DWI and reckless driving]. That description 'reflects the court's misapprehension that it had no ability to exercise its discretion concerning such fines"]) and a "harsh and excessive" reduction (People v Bailey (finding "the imposition of four consecutive terms of imprisonment" for defendant's three Sodomy 3rd and one Rape 3rd convictions "unduly harsh", and instead imposing two concurrent sentences]).

Note my exception.

It is no secret that the Fourth Department focuses intensely on preservation and harmless error issues when reviewing criminal cases. The criminal cases contained in the packet of decisions handed down this past Friday are no exception. In People v Torres (KA 02-01267), defendant-appellant (relying on the Court of Appeals decision in People v Williams [86 NY2d 236]) argued that the trial court, after hearing arguments from both the People and defense counsel, abused its discretion as a matter of law by fashioning a Sandoval ruling that failed to set forth any type of probative-prejudicial balancing, and merely recited the usual "Defendant has placed his own interests above those of society" factor in support of its ruling. Trial defense counsel asked the trial court to reconsider, arguing that the prejudicial effect of the trial court's decision (which allowed the prosecutor to inquire as to the nature of many of Mr. Torres' prior convictions) outweighed any probative value such convictions had on the question of credibility. The trial court adhered to its ruling.

On this record, the Fourth Department found "Defendant's contention with respect to the Sandoval ruling is not preserved for our review." (Torres at 1.) For this ruling, the Fourth Department cited to CPL 470.05[2], which provides in relevant part:

For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when . . . a party who without success has either expressly or impliedly sought or requested a particular ruling or instruction, is deemed to have thereby protested the court's ultimate disposition of the matter or failure to rule or instruct accordingly sufficiently to raise a question of law with respect to such disposition or failure regardless of whether any actual protest thereto was registered.

It is true that trial counsel in Torres did not make his argument precisely the same way as the issue was presented on appeal-- trial counsel did not cite to Williams, nor did defense counsel tell the trial court that its Sandoval ruling was so counter-intuitive and unsupported as to betray not only an abuse of discretion, but a failure to exercise any discretion at all. But defense counsel did set forth his position regarding the Sandoval issue on the record--that the prosecutor should not be allowed to identify Mr. Torres' prior crimes due to the resulting prejudice--and the trial court ruled in a manner contrary to defense counsel's argument. After the trial court set forth its Sandoval ruling, defense counsel asked to be heard and urged the trial court to reconsider. That should have been enough to preserve the Sandoval issue for appeal. However, it would seem that, under the Fourth (and other) Department's increasingly restrictive preservation requirements, trial counsel's failure to argue an issue precisely as counsel on appeal wishes to argue it will constitute a failure to preserve, even if the issue was raised in more general terms and defense counsel's position was known to the trial court. (See also, People v Combo, 291 AD2d 887 [4th Dept 2002] ["By failing 'to raise any objection to the court's ulimate [Sandoval] ruling,' defendant has failed to preserve that contention for our review"]; People v Englert, 285 AD2d 987 [4th Dept 2001] [same]; People v Villanueva, 289 AD2d 425 [2d Dept 2001] [same].)

The Court of Appeals has confronted this type of strict-preservation argument before, and swatted it down. ( See People v DeBour, 40 NY2d 210, 214-215 [1976] ["The mere emphasis of one prong of attack over another or a shift in theory on appeal, will not constitute a failure to preserve"].) And CPL 470.05 was changed to its current form to do away with overly ritualistic preservation requirements that served to bar appellate courts from hearing substantive issues on technicalities. (See Practice Commentary to CPL 470.05 [1994 Main Volume] ["The last sentence, moreover, dispenses with the necessity of any specific protest where a ruling or instruction is sought and not given as requested. In short, a defendant who, for example, fruitlessly requests the court to instruct the jury to disregard a certain item of evidence has, by the very request, adequately raised a question of law for appeals purposes regardless of whether he subsequently registers an exception or other protest to the court's failure to give the instruction."].) However, it seems the Departments are trying to undue what the Legislature and Court of Appeals have done, and force a reversion to the old hyper-technical "exception" requirements (or its functional equivalent).

Of course, under this type of super-strict, hyper-technical preservation doctrine, appellate counsel's job becomes simply a matter of copying trial defense counsel's arguments verbatim from the trial record into an appellate brief. Anything other than that will be ruled unpreserved for review.

Second Circuit reverses Monroe County murder conviction

I'm a few days late on this one, but the Second Circuit reversed John Howard's Monroe County murder conviction last week. Howard and two other men were accused of burglarizing an old lady's home. When the old lady was found dead the next day of a heart attack, the burglars were charged with her murder, accused of essentially scaring her to death. Statements were taken from all three men. One of the co-defendant's statements was damaging to Mr. Howard's case at trial, but (pursuant to the United States Supreme Court decision in Bruton v United States, 391 US 123 [1968]) the statement was ruled inadmissible.

The People at trial called an expert medical witness, who opined that the stress of the burglary caused the victim's heart attack and subsequent death. The expert's opinion was based in large part on her review of the co-defendant's statements regarding Howard's interaction with the victim during the burglary. The trial court allowed the expert's testimony, and also "established parameters for the defendant's cross-examination of [the expert]. It ruled that, if Howard attacked the basis for [the expert's] opinion through cross-examination, the State would be permitted to present to the jury all of the evidence [the expert] consider, including the [co-defendant's] statement." (Id. at *2.) The defense also indicated it wanted to call its own expert to testify that there was no way to tell for sure what caused the victim's heart attack; the trial court ruled that, if the defense put on its expert, the People could put the co-defendant's statements before the jury. (Id. at *3.)

In reversing Howard's murder conviction, the Second Circuit found that "the trial court's limitations on cross-examination of the State's expert witness and its denial of Howard's ability to call an expert witness were contrary to clearly established federal law and were not harmless." (Howard v Walker, 2005 WL 954884 [2d Cir 2005].) The Court further found that the trial court "offered Howard a constitutionally impermissible choice between his Sixth Amendment right to cross-examine [the People's expert], and his Sixth Amendment right to exclude the unreliable hearsay confession of a co-conspirator. The Supreme Court has recognized that a court may not subject a defendant to such a sacrifice." (Id. at *14.)

The Fourth Department had previously passed on Howard's legal claims, and gave them short shrift, noting only that the court had "considered the other contentions raised by defendant . . . and conclude that they are without merit.'" (Id., citing People v Howard, 661 NYS2d 386 [4th Dept 1997].)

The Second Circuit was not kind to the Fourth Department's treatment of the facts of Howard's trial. The Second Circuit noted that, in its decision affirming Mr. Howard's conviction, the Fourth Department reasoned that reversal was not necessary because the People's expert's testimony "would have been the same even without information obtained from the statement of one of the accomplices." (Howard, 241 AD2d at 921.) The Second Circuit disagreed with this conclusion, explaining in its decision:

[The People expert's] opinion regarding [the victim's] death consisted of two parts. The first, that [the victim's] death was caused by a cardiac arrythmia, was not seriously contested by the defendant. Howard did, however, contest the second part of [the People's expert's] opinion, that the cardiac arrythmia was caused by stress resulting from the burglary. In the course of voir dire, Howard's counsel questioned [the People's expert] regarding the impact of the three men's statements on her opinion:

[Howard's Counsel:] Is your opinion as to cause of death in this case contingent to some degree upon the representation in [the co-defendant's] statement being true?
[People's expert]: Yes.
Q: Okay. If those representations were not true, would that possibly change your opinion as to cause of death?
A: As to cause of death, I don't think so.

When pushed to specify to what she understood 'cause of death' to refer, however, [the People's expert] defined cause of death to mean 'cardiac arrythmia, due to arteriosclerosis.' The fact that the immediate cause of [the victim's] death was cardiac arrythmia was not contested. Asked, on the other hand, whether she could, without relying on the Bruton-infected statements, 'give an opinion to a reasonable degree of medical certainty as to whether, in fact, the house robbery brought about the cardiac arrythmia,' [the People's expert] testified that she could not do so.

There exists 'clear and convincing evidence', indeed it is indisputable, that [the People's expert's] testimony that the burglary caused [the victim's] death relied on the Bruton-infected statement. On the basis of that statement, [the People's expert] testified before the jury that the burglary 'was an important factor on [the victim's] death. The appellate division's ruling 'was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'

There is more good stuff to be found in the Second Circuit's opinion, and Mr. Howard is undoubtedly pleased with the outcome. Of course, he's been in jail or prison since 1991, so its a little disheartening that it took 14 years for a court to get the facts and law right.

The Rochester Democrat and Chronicle has an article about the Second Circuit's decision here. You can access the Howard decision at the Second Circuit's web site here (click "Decisions", "this month", and then scroll down).