Confrontation Clause

Com. v. Brown, 139 A.3d 208 (Pa. Super. 2016), allocatur granted, 40 EAP 2016; 41 EAP 2016


In Brown the Supreme Court will consider whether use of an autopsy report by an expert who did not perform the autopsy as the basis of his opinion as to the cause and manner of victim’s death (1) violates the Sixth Amendment guarantee of the right of Confrontation or (2) runs afoul of Pa. Rule of Evidence 703, which allows an expert to use inadmissible evidence to form his opinion, but does not allow the inadmissible evidence to be used for its truth.


The Philadelphia Court of Common Pleas admitted an autopsy report into evidence and permitted the assistant medical examiner who had not performed the autopsy on the murder victim to testify on the basis of the report as to the victim’s cause and manner of death, over the objection of defendant, that the report and testimony violated the Confrontation Clause of the Sixth Amendment to the United States Constitution, as incorporated by the Fourteenth Amendment (“In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him[.]” U.S. Const. Amend. VI).  Superior Court, after surveying the law of other states and the federal courts, held that “an autopsy report that is prepared because of a sudden, violent, or suspicious death or a death that is the result of other than natural causes, is testimonial. Such an autopsy report is prepared to prove a fact, i.e., the victim’s cause and manner of death, that an objective observer would reasonably believe could later be used in a criminal prosecution. As such autopsy reports are testimonial and the author of the autopsy report is required to testify at trial in order to satisfy the Confrontation Clause.” 139 A. 3d at 216.  Superior Court nevertheless affirmed the conviction, holding that although the autopsy report was inadmissible, and the assistant medical examiner’s testimony that he held the same opinions as expressed in the report was inadmissible, the expert testified as to his own independent conclusions as to cause of death based in part upon on his review of the information in the autopsy report, which was permissible, so that any error related to use of the autopsy report was harmless error.

For more information, contact Kevin McKeon or Dennis Whitaker