There appears to be a split shaping up between the circuits over the use of a surrogate to introduce autopsy reports. Thanks to federalevidence.com here are the basics.
[Are] autopsy reports are admissible under the Confrontation Clause. The First Circuit has held that autopsy reports may be admitted without the testimony of the report author consistent with the Confrontation Clause. See United States v. Feliz, 467 F.3d 227, 237 (2d Cir. 2006) (autopsy reports as public reports were “not subject to the strictures of the Confrontation Clause”) [Note, case decided before Melendez-Diaz]; United States v. De La Cruz, 514 F.3d 121, 133-34 (1st Cir. 2008) [n.1] (“An autopsy report is made in the ordinary course of business by a medical examiner who is required by law to memorialize what he or she saw and did during an autopsy. An autopsy report thus involves, in principal part, a careful and contemporaneous reporting of a series of steps taken and facts found by a medical examiner during an autopsy. Such a report is, we conclude, in the nature of a business record, and business records are expressly excluded from the reach of Crawford.”), cert. denied, 129 S.Ct. 2858 (2009); see also First Circuit Identifies And Discusses Crawford Confrontation Clause Open Issues.
With that FE provides the case that sets the conflict, and it’s a surrogate case.
Eleventh Circuit reverses based on the introduction of autopsy report prepared by non-testifying witnesses and the testimony of a medical examiner who had not performed the autopsy; the chief medical examiner could not provide surrogate testimony for non-testifying examiners who prepared autopsy reports, in United States v. Ignasiak, _ F.3d _ (11th Cir. Jan. 19, 2012) (Nos. 09-10596, 09-160).
Here’s a phrase we need to hear (as well as others) in attempted surrogate cases: is the opinion a “truly independent expert opinion.” Ignasiak, _ F.3d at _ n.21. Or another way to say that might be, ‘can any of the drug lab experts “truly” be “independent” when testifying about events in their own lab?’
Does United States v. Sweeney, 70 M.J. 296 (C.A.A.F. 2011), resolve the medical examiner surrogate issue?
Cert. was denied in de la Cruz, De La Cruz v. United States, 129 S.Ct. 2858 (2009). Here is the SG’s brief in opposition.