Calendar Condemns Petitioner in Confrontation Clause Challenge

Today we're taking a closer look at a First Circuit Court of Appeals decision reviewing a grey area of the law: expert witness testimony and the Confrontation Clause.

George Nardi was convicted of first-degree murder in a Massachusetts state trial court for killing his mother. Evidence indicated that she died of suffocation consistent with a hand being pressed over her face and nose.

Dr. James Weiner performed an autopsy on the mother's body, and recorded his findings in an autopsy report. The report noted bruising on her face consistent with suffocation, as well as signs of limited heart disease.

Dr. Weiner retired to Florida before the trial, and was unable to return to testify because of a medical condition. In his place, the prosecution called Dr. Edward McDonough, who had extensive experience as a medical examiner, but no involvement in the victim's autopsy. Before testifying, Dr. McDonough reviewed Dr. Weiner's autopsy report, as well as autopsy photographs, tissue slides and a toxicology report, and formed what he described as his own opinion about the cause of the victim's death.

Dr. McDonough provided expert witness testimony that the cause of death was consistent with asphyxia by suffocation, and cited facts from the autopsy report to support his conclusion. He also revealed that Dr. Weiner had reached the same conclusion.

In addition to Dr. McDonough's testimony, the government introduced evidence of the contentious relationship between Nardi and his mother, her plans to move out of the home she shared with him, his efforts to conceal her body after her death, and evidence concerning a blood-trail clean-up in the apartment.

Nardi was convicted, and appealed on the grounds that Dr. McDonough's opinion and his testimony about the autopsy report violated the Confrontation Clause.

The First Circuit Court of Appeals disagreed because Crawford v. Washington - still applicable when the Massachusetts Supreme Judicial Court (SJC) decided Nardi's appeal - did not "clearly establish" that either the autopsy report or Dr. McDonough's opinion in partial reliance upon it were inadmissible under the Confrontation Clause.

It's important to note here that two cases have further blurred the Confrontation Clause line since Crawford - and Nardi's SJC review - were decided.

1. Melendez-Diaz v. Massachusetts, a 2009 Supreme Court holding that the admission of state laboratory certificates into evidence - without testimony from the analyst who prepared the certificate - violates the Confrontation Clause.
2. Bullcoming v. New Mexico, a 2011 Supreme Court holding that the Confrontation Clause does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification.

If you're using the Confrontation Clause to challenge expert witness testimony regarding a medical report, check your calendar: if the testimony in question predates Melendez-Dias and Bullcoming, you have a tougher battle to first in the First Circuit Court of Appeals.

Related Resources:

• Nardi v. Pepe (First Circuit Court of Appeals)
• Ciresi Appeals Conspiracy Charges Under Confrontation Clause (FindLaw's First Circuit blog)
• Hearsay Exception: Supreme Court Narrows Confrontation Clause (FindLaw's Decided)
• The Right of Confrontation: A Supreme Court Decision Reveals Strong Schisms (FindLaw)