HARMLESS ERROR TO ADMIT AUTOPSY REPORT AND CERTAIN EXPERT TESTIMONY
The Superior Court has decided the case of Commonwealth v. Brown, No. 1165 EDA of 2015 (May 10, 1996), holding that it was improper to admit the autopsy report and certain expert testimony relating to the opinions expressed in the autopsy report.
Brown was charged with murder and other offense after having shot and killed the victim during an argument.
At trial, Dr. Albert Chu, an assistant medical examiner testified as an expert witness as to the cause and manner of Morton’s death. Dr. Chu neither assisted nor was present at Morton’s autopsy, which was performed by Dr. Marlon Osbourne. Instead, Dr. Chu testified based upon his review of the autopsy report prepared by Dr. Osbourne and the accompanying autopsy photographs. The autopsy report was admitted into evidence at the conclusion of trial.
Brown was found guilty of third-degree murder,carrying a firearm without a license, carrying a firearm on the streets of Philadelphia, and possessing an instrument of crime. He was sentenced to an aggregate of 25 to 50 years’ imprisonment.
Whether the trial court erred by admitting the autopsy report and permitting Dr. Chu to testify as to Morton’s cause and manner of death?
The Superior Court held that the statutory framework in Pennsylvania contemplates using autopsies in criminal proceedings and it was improper to admit the autopsy report and certain expert testimony relating to the opinions expressed in the autopsy report.
However, the Court also concluded that the admission and testimony was harmless error and the Judgment of sentence was affirmed.
Brown argued that the admission of Dr. Chu’s testimony violated the Confrontation Clause of the Sixth Amendment to the United States Constitution as incorporated by the Fourteenth Amendment.
The Superior Court reasoned that the Sixth Amendment of the United States Constitution provides that, “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” This protection has been incorporated into the Fourteenth Amendment and thus is applicable in state court prosecutions. The Confrontation Clause, “applies to witnesses against the accused—in other words, those who bear testimony. Testimony, in turn, is typically a solemn declaration or affirmation made for the purpose of establishing or proving some fact.”
In order to determine if a document or statement created out-of-court is testimonial in nature, the PA Supreme Court looks at the primary purpose of the document or statement. A document or statement is testimonial if its primary purpose is “to establish or prove past events potentially relevant to later criminal prosecution.” A document or statement has such a primary purpose if it is created or given “under circumstances which would lead an objective witness reasonably to believe that the [document or] statement would be available for use at a later trial[.]” If a document or statement is testimonial, then the witness who prepared it must testify at trial, unless he or she is unavailable and the defendant had a prior opportunity for cross-examination.
In this case, the fact at issue was whether Morton died from the four gunshot wounds he sustained. The autopsy report admitted into evidence addressed this fact, i.e., it listed Morton’s cause of death as being multiple gunshot wounds and the manner of death as homicide. Thus, the autopsy report established past events that were potentially relevant to later criminal proceedings, and thus, was testimonial. Furthermore, an objective witness who prepared an autopsy report on an individual who sustained four gunshot wounds to the chest should reasonably believe that the report would be made available for use at a later trial.
The Superior Court next looked to the use of autopsy reports in Pennsylvania. Although not all autopsies in Pennsylvania are used in court proceedings, the statutory framework contemplates that the autopsy report will be used in a criminal trial when the circumstances suggest that the death was sudden, violent or suspicious or was the result of other than natural causes. Based upon the statutory framework in Pennsylvania and the circumstances surrounding Morton’s death, it is evident that the autopsy report in this case was testimonial in nature.
The Superior Court then examined how other courts have resolved this issue. Several state and federal courts that have recently considered the issue have likewise held that autopsy reports are testimonial.
The Commonwealth contended that the autopsy report in this case was nontestimonial because it was non-accusatorial. The Commonwealth also argued that autopsy reports were nontestimonial because the medical examiner is required to conduct autopsies in a variety of situations, most of which do not ultimately lead to criminal prosecutions. However, these arguments were all rejected by the Superior Court.
An autopsy report that is prepared because of a sudden, violent, or suspicious death or a death that is the result of other than natural causes, is testimonial. Such an autopsy report is prepared to prove a fact, i.e., the victim’s cause and manner of death, that an objective observer would reasonably believe could later be used in a criminal prosecution. As such autopsy reports are testimonial and the author of the autopsy report is required to testify at trial in order to satisfy the Confrontation Clause.
The appellate court in this case held that an autopsy report that is prepared because of a sudden, violent, or suspicious death or a death that is the result of other than natural causes, is testimonial. Such an autopsy report is prepared to prove a fact, i.e., the victim’s cause and manner of death, that an objective observer would reasonably believe could later be used in a criminal prosecution. As such autopsy reports are testimonial and the author of the autopsy report is required to testify at trial in order to satisfy the Confrontation Clause.
The Superior Court finally concluded that the Confrontation Clause was not violated when an expert expresses his or her independent conclusions based upon his or her review of inadmissible evidence. The PA Supreme Court held also that a medical expert may express his opinion on the cause of death based upon the report of a non-testifying physician who examined the body.
Because Morton’s death was sudden, violent, and the result of other than natural causes, the autopsy report in this case was testimonial and the trial court erred by admitting the autopsy report and Dr. Chu’s reference to the opinions expressed by Dr. Osbourne in the autopsy report. Nonetheless, Dr. Chu’s independent expert testimony regarding the cause of Morton’s death was admissible and sufficient to prove his cause of death beyond a reasonable doubt. Thus, the Confrontation Clause violation was harmless error.
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