Supreme Judicial Court (September 15, 2009)

These cases reaffirm the decision in Commonwealth v. Nardi, 452 Mass. 379 (2008) that an expert can render an opinion based on tests conducted by another expert, and this practice does not violate Crawford or the Melendez-Diaz decisions.

Hensley:
In 2002, the victim was found dead in the basement of her home after being strangled to death with a necktie. Her husband, the defendant, was found guilty of murder in the first degree on the theories of deliberate premeditation and extreme atrocity or cruelty. On appeal, among other arguments, the defendant maintained it was error to admit in evidence the testimony of a medical examiner who neither performed nor attended the victim's autopsy. In this case, Dr. Zane from the MA medical examiner's office performed the autopsy on the victim's body. Dr. Zane was scheduled to testify at the trial, but was unavailable on the date of his expected testimony. In his place, the Commonwealth called Dr. Mark Flomenbaum, the chief medical examiner. He testified regarding the cause and manner of the victim's death based largely on the findings and results of the autopsy. The Commonwealth did not offer the autopsy report in evidence. Defense counsel objected to all of Dr. Flomenbaum's testimony on the ground that he was not the medical examiner who had performed the autopsy and that it violated his right to confrontation.

The Supreme Judicial Court held that it was not error in admitting the testimony of Dr. Flomenbaum regarding his opinion as to the cause of death. Relying on Nardi, the Court held that the right of confrontation is not violated where a medical examiner who did not perform the autopsy was permitted to testify to his own opinion as to cause of death.

In particular, the defendant argued that in light of Crawford, an expert cannot base his or her opinion on the work of other experts who will not be called as witnesses. He argued that our rule regarding the proper basis for expert testimony, as set out in Commonwealth v. Markvart, 437 Mass. 331, 337 (2002), which includes, "facts or data not in evidence if the facts or data are independently admissible and are a permissible basis for an expert to consider in formulating an opinion" should now be interpreted to require that facts or data that are "independently admissible" actually must be admitted at trial through a percipient witness in order to satisfy the defendant's right to confrontation. The SJC specifically rejected this argument. The defendant's conviction was affirmed.

Avila:
The defendant was convicted of murder in the first degree on the theories of premeditation and extreme atrocity or cruelty and possession of a firearm without a license. As in Hensley, the Commonwealth called Dr. Mark Flomenbaum to testify about the cause of death, as the medical examiner who had conducted the autopsy was unavailable. Dr. Flomenbaum offered his opinions on direct examination about cause of death and on how long it might have taken the victim to die, and about whether the victim might have been conscious after each shot was fired. These opinions were based primarily on the autopsy report and diagram prepared by the unavailable medical examiner.

The defendant conceded that Dr. Flomenbaum's opinions on the victim's cause of death, the mechanism of death and "how long it took the victim to die" were admissible based upon Nardi. He argued, however, that Dr. Flomenbaum was not permitted to recite the unavailable medical examiner's findings and conclusions on direct examination, or to support or "buttress" his own opinions by setting out the facts and observations in the report.

The SJC affirmed that substitute medical examiners may give their opinions on a wide range of subjects, based on their own review of autopsy reports, photographs, or other information gathered during an autopsy performed by another medical examiner. The substitute medical examiner's opinions must be grounded in the evidence presented at trial, but once that condition is met, he or she may offer opinions on such issues:

Expert opinion testimony of this nature is permissible as an evidentiary matter and does not offend the confrontation clause as interpreted by the Supreme
Court of the United States in Crawford v. Washington, and most recently in
Melendez-Diaz v. Massachusetts. As we held in Nardi, the substitute medical
examiner, as an expert witness, is not permitted on direct examination to
recite or otherwise testify about the underlying factual findings of the
unavailable medical examiner as contained in the autopsy report. The expert
witness's testimony must be confined to his or her own opinions and, as to
these, the expert is available for cross-examination.