When autopsies are used to substantiate the cause of death in murder cases, the authors of those reports must take the stand and testify, the state Supreme Court has ruled.
In Commonwealth v. Brown, the court unanimously ruled that a medical examiner’s conclusions in a fatal shooting case were testimonial in nature, and thus warranted his presence in court for cross-examination.
In Brown, the defendant, Darnell Brown, was convicted by a jury of third-degree murder and related offenses in the shooting death of Cory Morton at a party on the 2600 block of Stanley Street in Philadelphia. He was sentenced to an aggregate term of 25 to 50 years in prison.
According to Justice Kevin Dougherty, who wrote the court’s majority opinion, Dr. Marlon Osbourne of the Philadelphia Medical Examiner’s Office performed Morton’s autopsy and prepared the report. Osbourne’s report showed the existence of four gunshot wounds where bullets entered and struck the ribs, heart, left lung and left shoulder of the victim, leading to the conclusion of death by homicide.
By the time of Brown’s trial, Osbourne was no longer with the Medical Examiner’s Office. The prosecution called examiner Dr. Albert Chu, who had not been present at the autopsy, to give expert testimony based on portions of the report and its accompanying photos.
Brown argued that the autopsy report was testimonial in nature and the absence of Osbourne, its author, at trial violated the confrontation clause of the Sixth Amendment.
The justices agreed with Brown that the report was testimonial.
“The law requires the coroner or medical examiner charged with conducting and reporting the results of such autopsies to consult and advise the local district attorney to the extent practicable,” Dougherty said. “Accordingly, we determine the primary purpose for preparation of an autopsy report under these circumstances is to establish or prove past events potentially relevant to a later criminal prosecution and that any person creating the report would reasonably believe it would be available for use at a later criminal trial. Thus, we conclude the autopsy report in this case was testimonial.”
However, the court ruled that Osbourne’s absence in Brown’s case was harmless, though it split into a plurality on the specifics of why.
Dougherty, joined by Justices Max Baer and Debra Todd, said the error was harmless because the report was deemed inadmissible and Chu’s testimony was based on other factors.
“Here Dr. Chu formed an independent conclusion and testified to that conclusion based on his own review of both the otherwise inadmissible facts and data contained in the report and the data provided by the autopsy photographs,” Dougherty said. “Because Dr. Chu properly formed an independent opinion, and was available to be cross-examined regarding the basis of that opinion, we conclude there was no confrontation clause violation with respect to his opinion regarding the cause of death. Additionally, Dr. Chu’s testimony was sufficient to satisfy the commonwealth’s evidentiary burden regarding the victim’s cause of death.”
But Christine Donohue, in a concurring opinion joined by Chief Justice Thomas Saylor and Justice David Wecht, argued that allowing Chu to testify was also error, albeit harmless error.
Donohue said allowing Chu to testify “permitted the commonwealth to do indirectly what it could not do directly, namely, to advise the jury of the findings and opinions of Dr. Osbourne without providing Brown with an opportunity to cross-examine him.”
But she added that the error did not prejudice Brown because, even absent the autopsy report and Chu’s testimony, “there was competent evidence presented at trial to allow a jury to justifiably conclude, beyond a reasonable doubt, that the victim died as a result of the gunshot wounds.”
Justice Sallie Updyke Mundy, meanwhile, penned her own separate concurring opinion, saying that she also believed the admission of Osbourne’s report was harmless error, “but only because the autopsy report and its accompanying testimony did not affect the outcome of Brown’s trial in light of other nonexpert witness testimony as to the cause and manner of death.”
Mundy said she would not have even addressed whether Chu’s testimony was proper because it was “de minimis.”
Jules Epstein of Kairys, Rudovsky, Messing, Feinberg & Lin in Philadelphia represents Brown and did not respond to a call seeking comment.
The Philadelphia District Attorney’s Office declined to comment.