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United States v. Jose Erbo, Docket No. 02-1665-cr (2d Cir. Oct. 25, 2006) (Wesley, Hall, Trager): Yet another awful decision from the Circuit, this time badly misreading Crawford v. Washington, 541 U.S. 36 (2004), and holding via classic circular reasoning that "a statement properly admitted under Fed. R. Evid. 803(6) [or 803(8)] cannot be testimonial because a business [or public] record is fundamentally inconsistent with what the Supreme Court has suggested comprise the defining characteristics of testimonial evidence." Op.11. At issue specifically was whether the admission of autopsy reports prepared by the NYC Medical Examiner's Office -- which, unlike a hospital's pathology department, generally conducts autopsies only when a person has died "from criminal violence, by casualty, by suicide . . . or in any suspicious or unusual manner," NYC Charter § 557(f) -- without testimony from the doctors who performed the autopsy violated Erbo's Sixth Amendment Confrontation Right, in light of Crawford. The Court says no, principally because autopsy records are business records, which means that they were not prepared in anticipation of litigation, which in turn means that they are not testimonial under Crawford.

Because this Blog cannot say it any better, here is a critique from the Blog "Indignant Indigent" regarding the line of reasoning used in Erbo and how it flouts Crawford:

Despite an autopsy report's 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. (citing cases) . . . 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"; and 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. . . .

This reasoning . . . 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 Fed. R. Evid. 803(6)] . . . 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 [the Rule's] foundational requirements; however, these statements nevertheless fall squarely within the definition of "testimonial" under Crawford and [should be] excluded absent an opportunity to cross-examine the declarant. . . .

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 . . . Dispensing 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." Id. at 61.

[While] . . . Crawford does not define the term "testimonial" or otherwise set forth a bright-line test for determining whether a statement is "testimonial" or not, e.g., id. at 68 ("We leave for another day any effort to spell out a comprehensive definition of 'testimonial.'".), Justice Scalia observed generally that "[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. 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. . . . To pretend that autopsy reports are not generated in large part with an eye towards prosecuting murder defendants is to indulge a fiction.

(Click here for the full discussion).

We additionally note that Erbo (argued in July 2005) barely touches on the Davis / Hammon case decided earlier this summer, 126 S. Ct. 2266 (June 19, 2006), in which the Court focused on the "primary purpose" of the statements at issue to gauge whether they were testimonial. Davis/Hammon held that while statements made to police officers for the purpose of resolving an on-going emergency were non-testimonial, similar statements concerning events already expired and potentially relevant to a later criminal prosecution were indeed testimonial. As the Court explained, while statements "made . . . under circumstances objectively indicating that the[ir] primary purpose . . . is to enable police assistance to meet an ongoing emergency" are non-testimonial, statements "are testimonial when the circumstances objectively indicate that . . . the[ir] primary purpose . . . is to establish or prove past events potentially relevant to later criminal prosecutions." 126 S. Ct. at 2273-74; see id. at 2278 (non-testimonial statements concern "what is happening" while testimonial statements concern "what happened"). Autopsy reports, especially those made by the City's Medical Examiner's Office, are clearly closer to the latter than the former.

Finally, Crawford's own Jeff Fisher has recent sought cert. on a similar question -- whether a forensic lab report (concerning whether the residue found was marijuana) was admissible as non-testimonial under Crawford. Click here for the fine cert. petition in Pinks v. North Dakota.

Addendum: One final critique of this opinion, which repeatedly cites a New York State court decision -- cited by the opinion as "People v. Durio, 794 N.Y.S.2d 863, 867 (2005)," Op. 12 -- to support its conclusion. See Op. 12, 13, 15, 16 & 18. Based on the form of the Circuit's citation and its heavy reliance on Durio, we assumed that Durio was decided by the New York Court of Appeals (or, at least, one of the Appellate Divisions).

This turned out to false: Durio is a decision by a justice of the Kings County Supreme Court -- i.e., the basic felony trial court in Brooklyn -- and thus of very little precedential value even in New York courts. The correct Bluebook citation should be "People v. Durio, 794 N.Y.S.2d 863 (Sup. Ct. 2005) ", see Bluebook Rule 10.4(b), which would have properly informed the reader of the value of this authority.

We assume that the error was inadvertent (though, among the lawyer population, one would assume that freshly minted ones -- especially those fortunate enough to obtain a federal clerkship -- have Bluebook rules freshest in mind). But the error is nonetheless a critical one that hides the weakness of the opinion and its reliance on questionable authority.


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