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Copyright (c) 2007 The Harvard Law Review Association
Harvard Law Review

RECENT CASE: Evidence -- Confrontation Clause -- Second Circuit Holds That Autopsy Reports Are Not Testimonial Evidence. --

United States v. Feliz, 467 F.3d 227 (2d Cir. 2006), cert. denied, 75 U.S.L.W. 3438 (U.S. Feb. 20, 2007) (No. 06-8777).

April, 2007

120 Harv. L. Rev. 1707


The Supreme Court's decision in Crawford v. Washington 1 has required courts to reevaluate the circumstances under which admitting a hearsay statement at a criminal trial comports with the Confrontation Clause of the Sixth Amendment. 2 Prior to Crawford, under Ohio v. Roberts, 3 statements of an unavailable declarant were constitutionally admissible at trial only if they bore adequate "indicia of reliability." 4 In Crawford, the Court set aside the "indicia of reliability" standard and instead drew a distinction between testimonial and nontestimonial hearsay. 5 Testimonial hearsay is constitutionally admissible in a criminal trial only if the defendant had a prior opportunity to cross-examine the unavailable declarant. 6 Recently, in United States v. Feliz, 7 the Second Circuit held that autopsy reports are not testimonial under Crawford. 8 As a result, these reports may be admitted into evidence at trial without affording a defendant the right to confront and cross-examine the medical examiner who prepared the report. The Second Circuit's decision in Feliz is not unique; the few courts that have addressed the admissibility of autopsy reports post-Crawford have similarly held that they are nontestimonial hearsay. 9 The Feliz court's opinion also resembles those of other courts in that it appears to have been motivated more by concerns of hampering prosecutions than by the definition of "testimonial" set forth in Crawford and its progeny. However, because autopsy reports are prepared in anticipation of trial and because the practical consequences of finding ...
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