Supreme Judicial Court (August 19, 2010)

This case reaffirms the decisions in Commonwealth v. Nardi, 452 Mass. 379 (2008), Commonwealth v. Hensley, 454 Mass. 721 (2009) and Commonwealth v. Avila, 454 Mass. 744 (2009): A defendant's Sixth Amendment Right to Confrontation is violated when a pathologist testifies to the autopsy findings of another pathologist who performed the autopsy. 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 another pathologist.

The defendant was charged with murdering his girlfriend's young son. Doctor Abraham Philip from the medical examiner's office performed the autopsy on the victim. At trial, in place of Dr. Philip, the Commonwealth called Dr. Mark Flomenbaum, chief medical examiner for the Commonwealth, to testify to the results of the autopsy and the cause of death. Prior to testifying, Dr. Flomenbaum reviewed the autopsy file created by Dr. Philip, autopsy photographs, slides, emergency room records, and a report prepared by a forensic dentist in the medical examiner's office. At trial, Dr. Flomenbaum 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. Flomenbaum was allowed to testify to the contents and factual findings contained in the autopsy report prepared by Dr. Philip.

Although this case was tried before the SJC decided Nardi, it is a cautious reminder that 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). However, a testifying medical examiner called by the Commonwealth is not permitted to testify, on direct examination, to the underlying factual findings contained in the autopsy report prepared by a different medical examiner, because such testimony would violate a defendant's confrontation rights.