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The Confrontation Clause And Forensic Autopsy Reports — A 'Testimonial'

104 Pages Posted: 18 Jul 2013 Last revised: 6 Sep 2013

Marc Ginsberg

The John Marshall Law School

Date Written: July 16, 2013


The forensic autopsy report is an important component of a criminal homicide prosecution. The report constitutes a significant phase of the death investigation. The trial testimony of the forensic pathologist and the reference to the forensic autopsy report implicate significant evidentiary issues. First, the forensic autopsy report is a document prepared subsequent to the autopsy, out of court, and is offered in court for the truth of the matter it asserts. The examining pathologist is the out-of-court declarant. Therefore, the forensic autopsy report is classic hearsay, which is inadmissible unless it fits within a recognized exception of the hearsay rule.

The second evidentiary issue involves the Confrontation Clause of the Sixth Amendment. The Confrontation Clause is implicated when the examining pathologist is not the in-court witness and instead, a surrogate pathologist from the medical examiner’s office is the in-court witness. The surrogate pathologist relies on the examining pathologist’s autopsy report and offers professional opinions at trial as an expert witness. The defendant is unable to confront and cross-examine the examining pathologist.

Prior to the opinion of the Supreme Court in Crawford v. Washington, the surrogate pathologist’s reference to the autopsy report authored by the examining pathologist, and the admissibility of the autopsy report, would have been governed by the Court’s opinion in Ohio v. Roberts. The Court, in Roberts, pronounced that the Confrontation Clause would not prohibit the admission of an unavailable witness’s statement against a criminal defendant if the statement bore "adequate indicia of reliability." However, the Confrontation Clause – hearsay landscape was dramatically altered with Crawford. In Crawford, the Court pronounced that a recognized hearsay exception to an unavailable declarant would not trump the Sixth Amendment Confrontation Clause if the hearsay statement was testimonial. The Supreme Court has not resolved the issue of whether a forensic autopsy report is testimonial and there is a split among the circuit courts of appeal and among the state courts on this topic.

This paper will examine the landscape of legal issues involved in determining whether the presence at trial of a surrogate pathologist, whose testimony refers to a forensic autopsy report prepared by the examining pathologist, and provides the foundation for the admissibility of the forensic autopsy report, implicates the Confrontation Clause of the Sixth Amendment. This paper will conclude that this practice of surrogate testimony and admission of the forensic autopsy report, well known and often required in criminal homicide prosecutions, implicates and violates the Confrontation Clause.

Keywords: Evidence, Medicine, Constitutional Law, Criminal Law, Confrontation

Suggested Citation

Ginsberg, Marc, The Confrontation Clause And Forensic Autopsy Reports — A 'Testimonial' (July 16, 2013). Louisiana Law Review, Forthcoming. Available at SSRN: or

Marc Ginsberg (Contact Author)

The John Marshall Law School ( email )

315 South Plymouth Court
Chicago, IL 60604
United States

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