The New Mexico Court of Appeals recently held in State v. Gonzales that the State can call a forensic pathologist as a medical expert to testify about circumstances of death even if that expert took no part in the autopsy performed on the victim. This is true even if the autopsy is ruled inadmissible and the expert relies on the autopsy to reach his or her conclusions regarding the cause of death.
State v. Gonzales involved an interlocutory appeal from a district court. An interlocutory appeal is one where the appeal is ruled on before the trial ends. The Defendant was charged with second-degree murder. A forensic pathology fellow at the Office of Medical Investigator (OMI) performed the autopsy on the victim, but by the time of the trial had moved to Washington. The prosecution decided to avoid expenses and logistical difficulties by electing not to bring him back to New Mexico to testify at Defendant's trial.
At trial, the prosecution did not introduce the autopsy report into evidence, but included another forensic pathologist from OMI on its witness list. Defendant moved to exclude the forensic pathologist as a witness on the grounds that it violated his Sixth Amendment right to confrontation of witnesses. The lower court granted the motion. This appeal followed and the New Mexico Court of Appeals held that the lower court erred in completely excluding the witness and ordered a new trial.
Both the Confrontation Clause of the Sixth Amendment of the U.S. Constitution and the New Mexico Constitution guarantee the right of a criminal defendant to confront witnesses. To this end, testimonial evidence is inadmissible in court against a defendant unless the defendant has a chance to cross-examine the witness giving the testimony. An autopsy report is considered testimonial when it is performed as part of a police investigation and therefore is inadmissible unless the person who prepared the report is available in court for cross-examination by the defense. Additionally, another individual cannot simply attest to or confirm the findings of an autopsy report prepared by another person as a way to admit the report into evidence if it is otherwise inadmissible as testimonial hearsay.
In this case, the autopsy report was not introduced into evidence, but the state's expert witness would rely on the report to give an opinion on the victim's cause of death. The Court found that expert testimony would be admissible if (1) the report itself is not admitted into evidence (2) the expert's testimony will be offered through their role as an expert and not a surrogate to introduce the inadmissible report, and (3) the expert will not repeat the findings of the report's author but will reach her own opinions and conclusions as to the cause of death.
Further, the expert would be able to rely on the data and other information found in the autopsy report, even though it is inadmissible if experts customarily rely on that type of evidence in the practice of their profession. In this case, forensic pathologists often rely on the raw data, pictures, and tests found in an autopsy report to determine cause of death. The Court found that the expert could therefore rely on the information found in the autopsy report but that the reviewing court would have to be vigilant as to the degree to which the expert repeats the findings of the report.
This recent holding may seems to open the door for prosecutors to try to include otherwise inadmissible evidence. It seems to go against the grain of recent decisions such as Bullcoming and Melendez Diaz. Courts and criminal defense attorneys must be vigilant of prosecutors attempting to use witnesses as surrogates for inadmissible hearsay. It takes little imagination to envision abusive and unconstitutional tactics in attempts to circumvent 6th Amendment Rights.
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