Supreme Judicial Court (September 25, 2008)

A defendant's Sixth Amendment Right to Confrontation is violated where a pathologist testified to the autopsy findings of another pathologist who performed the autopsy, but was unavailable to testify at the time of trial. There is no violation, however, for a pathologist to testify to his own opinions regarding the cause of death, even if those opinions are principally based on the findings of the unavailable pathologist.

The defendant was charged with murdering his mother. Doctor James Weiner from the medical examiner's office performed the autopsy on the victim. By the time the case went to trial, Dr. Weiner had retired to Florida and had a medical condition that prevented him from traveling. At trial, in place of Dr. Weiner, the Commonwealth called Dr. Edward McDonough, deputy chief medical examiner for the State of Connecticut, to testify to the results of the autopsy and the cause of death. Prior to testifying, Dr. McDonough reviewed crime scene reports, notes and diagrams, photos, the autopsy report, tissue samples, and the toxicology report relating to the victim. Dr. McDonough also spoke to Dr. Weiner about his findings. During trial, Dr. McDonough testified to the victim's injuries and then gave an opinion as to the victim's cause of death. The defendant was convicted of murder and appealed his conviction claiming his right, pursuant to the Sixth Amendment, to confront the witnesses against him, was violated when Dr. McDonough was allowed to testify to the autopsy findings of Dr. Weiner and give an opinion as to the victim's cause of death.

With respect to the opinion, the Court disagreed. Medical examiners, as expert witnesses, may base their opinions on (1) facts personally observed; (2) evidence already in the records or which the parties represent will be admitted during the course of the proceedings, assumed to be true in questions put to the expert witnesses; and (3) facts or data not in evidence if they are independently admissible and are a permissible basis for an expert to consider in formulating an opinion. Commonwealth v. Markvart, 437 Mass. 331 (2002). Dr. McDonough testified to his own expert opinion, and did so based on a permissible foundation. McDonough, not Weiner, was the witness testifying to the cause of death, and the defendant was given ample opportunity to cross examine him. "The fact that McDonough's expert opinion on the cause of death was based, in large part, on findings made during the course of an autopsy that he did not perform does not infringe on [the defendant's right] to confrontation concerning this issue."

However, the Court did hold that McDonough's direct testimony improperly included reference to many of the findings contained in Weiner's report. In light of Crawford v. Washington, 541 U.S. 36 (2004) and Davis v. Washington, 547 U.S. 813 (2006), McDonough's inadmissible hearsay statements concerning Weiner's findings constituted testimonial evidence since the findings themselves were testimonial in fact because "a reasonable person in [Dr. Weiner's] position would anticipate his [findings and conclusions] being used against the accused in investigating and prosecuting a crime."