Last Friday, the North Carolina Supreme Court decided State v. Locklear, holding, in part, that a Crawford violation occurred when the trial court admitted opinion testimony regarding a victim’s cause of death and identity. Because the case raises questions about the viability of offering a “substitute analyst” to avoid a Crawford problem, I offer this post.
In Locklear, the State offered John Butts, the Chief Medical Examiner, as an expert in the field of forensic pathology. Butts testified to a 1997 autopsy report on a victim, prepared by Karen Chancellor, a forensic pathologist. Butts testified that “according to the autopsy report prepared by Dr. Chancellor, the cause of [the victim's] death was blunt force injuries to the chest and head.” Slip Op. at 18. Butts also testified “to the results of dental analysis performed by Dr. Jeffrey Burkes,” id. at 18-19, included in the autopsy report. Butts stated “that, by comparing [the victim's] dental records to the skeletal remains, Dr. Burkes positively identified the body as that of [the victim].” Id. at 19. Neither Chancellor nor Burkes testified at trial. On appeal, the defense argued that by admitting the opinion testimony of the non-testifying experts, the trial court violated the defendant’s Confrontation Clause rights. Rejecting the State’s argument to the contrary, the North Carolina Supreme Court cited Melendez-Diaz and held that the reports were testimonial. It went to conclude that a Crawford violation occurred because the State did not establish unavailability of the witnesses or a prior opportunity to cross-examine them, but that the error was harmless beyond a reasonable doubt.
What is unclear about Locklear-at least from the court’s decision-is whether Butts testified to an opinion on cause of death and identity based on facts or data contained in the reports or whether he simply read the reports into evidence. This is an important distinction. If the latter is true-that he simply read the reports into evidence-Locklear was a slam dunk for the defense. As I stated in an earlier paper on the implications of Melendez-Diaz, available here, in such a scenario, the report is being received as substantive evidence; since it is clearly testimonial under Melendez-Diaz, it may not be admitted unless the preparer testifies or if the State can establish unavailability and a prior opportunity to cross-examine. A close look at the court’s opinion suggests that this, in fact, is what happened. The opinion states that Butts testified that “according to the autopsy report prepared by Dr. Chancellor, the cause of [the victim's] death was blunt force injuries to the chest and head.” He also testified “to the results of dental analysis performed by [Burkes]” that “by comparing [the victim's] dental records to the skeletal remains, Dr. Burkes positively identified the body as that of [the victim].” Thus, it appears that Butts did not testify to an independent opinion on either point, but rather simply recounted opinions formed by the non-testifying experts.
If Butts had testified to his own opinion as to cause of death and identity, based on materials reasonably relied upon by experts in the field of forensic pathology, the case could have come out differently. As noted in the paper cited above, pre-Melendez-Diaz cases in North Carolina and in the vast majority of jurisdictions held that in this context the underlying report is not being admitted for the truth of the matter asserted. Rather, it is admitted as a basis of the testifying expert’s opinion. The courts reasoned that since the evidence is not hearsay, it is not covered by the Crawford rule. After all, Crawford itself recognized that the Confrontation Clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” Crawford, 541 U.S. at 59 n.9. Furthermore, the expert is on the stand and may be cross-examined about the basis of his or her opinion. Of course, Melendez-Diaz does not address this issue. In light of that, it would seem somewhat surprising for the North Carolina Supreme Court to overrule the pre-Melendez-Diaz law on point in a mere two paragraphs of analysis, without mentioning the issue.