The Grave Concerns of Autopsy Confrontation Clause Violations: People v. Ortega

Описание: In this video, we discuss the case of People v. Ortega, which addresses whether autopsy reports and testimony constitutes a violation of the confrontation clause of the Sixth Amendment. A must watch for all prosecutors, criminal defense attorneys, DNA analysts, trainers, civil libertarians, constitutional scholars, and all who enjoy learning about real criminal cases.

Case Name: People v. Ortega
Citation: 2023 NY Slip Op 05956 (https://law.justia.com/cases/new-york...)
Publication Date: 11/20/23
Oral Argument:    • No. 74 People v Yoselyn Ortega  
Issue: Are autopsy reports and testimony from the non-participating witness a violation for the Sixth Amendment Confrontation Clause?

Key Parts of the Decision:

Overall Issue: “At issue in this case is whether the admission of two autopsy reports through an expert witness who did not perform the autopsies, as well as that witness's testimony, violated defendant's Sixth Amendment right to confrontation where defendant had not been given a prior opportunity to cross-examine the performing medical examiner.”

Overall Holding: “We hold that the admission of those reports and the expert witness's testimony violated defendant's constitutional right to confrontation, but conclude that the error was nevertheless harmless.”

“We now hold that Freycinet should no longer be followed because it is inconsistent with the demands of the Confrontation Clause as articulated more recently by the Supreme Court.”

“Turning now to the autopsy reports at issue here, we hold that the reports are testimonial under established Supreme Court precedent. The reports are "solemn declaration[s] or affirmation[s] made for the purpose of establishing or proving some fact" (Crawford, 541 US at 52), namely the homicidal nature of these victims' deaths. Further, the reports contain indicia of formality that render them "solemn declaration[s] or affirmation[s]."

“The reports were also created "under circumstances which would lead an objective witness reasonably to believe that the statement[s] would be available for use at a later trial" (id.).”

“Under New York's evidentiary rules, a testifying expert may rely on inadmissible hearsay material "if it is of a kind accepted in the profession as reliable in forming a professional opinion" (People v Goldstein, 6 NY3d 119, 124 [2005], quoting People v Sugden, 35 NY2d 453, 460 [1974]), so long as there is "evidence establishing the reliability of the out-of-court material" (Hambsch v New York City Tr. Auth., 63 NY2d 723, 726 [1984]). While our evidentiary rules would permit an expansive foundation for expert testimony from medical examiners, the more difficult question is which of these materials a testifying expert may rely upon to meet the demands of the Confrontation Clause. [*4]Autopsy files contain a variety of materials, such as autopsy reports, diagrams, photographs, dictation tapes, microscopic slides, crime scene evidence, and more, which are materials frequently relied upon by testifying medical examiners”

“Nearly all of Dr. Ely's testimony was the type of "surrogate testimony" rejected by the Supreme Court in Bullcoming (see 564 US at 661) in that Dr. Ely simply "parrot[ed]" the autopsy reports (see John, 27 NY3d at 309). We do not suggest that agreement between the testifying expert and the performing examiner is itself impermissible. Rather, it is the People's obligation to establish that their testifying experts, who did not perform or observe the relevant autopsy, reached their conclusions themselves based upon a review of the proper materials rather than the conclusions of the performing examiner. Where the People fail to do so, we cannot be sure that a defendant's Sixth Amendment right has been safeguarded. As for the rest of Dr. Ely's testimony, we simply cannot tell whether it reflected her own deliberate, interpretative work product based on the primary data. We thus conclude that all of Dr. Ely's testimony was improper under the Sixth Amendment.”

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