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May an autopsy report be admitted into evidence when the author of that report is not available to be cross-examined during trial?

That was the question a full complement of the Pennsylvania Supreme Court waded into for roughly an hour the morning of Sept. 12. The discussion focused on whether allowing in the autopsy report without its author present at trial violated the confrontation clause, or if it is permissible under the Pennsylvania Rules of Evidence regarding expert testimony.

Assistant Philadelphia District Attorney Anthony Carissimi told the justices the report can be allowed in as the basis for the testifying medical examiner’s observations, rather than as evidence of the truth. A proper jury instruction, Carissimi said, could make it clear that the information should be evaluated only as support for the observations.

Several justices, however, expressed concern with that arguments, and at least one said it appeared “rankly problematic.”

Justice Christine Donohue said without the author of the report available to testify, the defense would not be able to cross-examine the evidence underpinning that reasoning.

“The underlying predicate is not based on cross-examined evidence,” Donohue said. “He’s offering it for the truth of the matter asserted in that autopsy report.”

The arguments were made in Commonwealth v. Brown, which involved a defendant who was found guilty of murder stemming from a fatal shooting. At trial, an assistant medical examiner, who had not been present at the autopsy, testified as an expert witness regarding the cause and manner of the victim’s death. The witness testified that he based his opinion on the autopsy report and accompanying photographs.

Justice David Wecht said many seemingly factual observations are incorrect. Wecht gave the example of how exit wounds can sometimes be mistaken for entrance wounds.

“Are the divisions between datum and opinion, and fact and impressionistic recordings so clear?” Wecht asked.

Carissimi said that may be the case in some trials, but in Brown, there was sufficient corroborating evidence so these potentially contested facts were not at issue.

“That’s why they found harmless error,” he said, referring to the state Superior Court’s May 2016 decision, which found that, although admitting the report violated the confrontation clause, it was a harmless error.

However, earlier in the argument session, counsel for the defense, Temple University’s Beasley School of Law professor Jules Epstein, contended that Rule of Evidence 703, which says an expert can base an opinion on facts or data the expert has been made aware of, “does not permit a work-around on the confrontation clause.”

According to Epstein, the report in Brown had been introduced to bolster the testimony of witnesses, who, Epstein said, had compromised credibility. Epstein said the autopsy report provided “enough grist for the mill for what one could argued was an already compromised verdict.”

Epstein contended that autopsy reports created after any death that may lead to a prosecution cannot be introduced without the author present to be cross-examined.

The justices were likewise skeptical about that argument, with Wecht asking whether that would lead to prosecutors having to drop all cases when the medical examiner who authored the autopsy report is unavailable to testify.

Epstein contended that, although that concern should not be taken into account when considering a violation of the confrontation clause, he disagreed that all prosecutions would need to be dropped. Epstein suggested that video evidence from the medical exam could be introduced, prosecutors could also put the defense on notice that an autopsy was conducted so they could conduct their own examination of the body, and the autopsies could be supervised.