Pathologist Testimony in a Murder Case in California

In Dungo (2012) 55 Cal.4th 608, the defendant was convicted of murder. A prosecution forensic pathologist testified the victim had been strangled based on objective facts concerning the condition of the body as observed by another pathologist and recorded in an autopsy report and accompanying photographs. The report itself was not admitted into evidence. (Dungo, supra, 55 Cal.4th at p. 612.) As the Court explained in People v. Barba (2013) 215 Cal.App.4th 712, the court found the portions of the report conveyed by the testifying pathologist were not testimonial: "First, the expert testified as to only the physical observations recorded in the autopsy report, not as to the conclusions reached by the pathologist who conducted the autopsy and prepared the report. Such observations lack the formality required under the Confrontation Clause. Second, the court held that autopsy reports do not have the primary purpose of targeting an accused individual. Autopsy reports are required by law for certain types of deaths--some related to criminal activities and some not. Such reports therefore serve many purposes: to allow a decedent's family to learn whether a wrongful death action is warranted; for insurance companies to determine whether a death is covered under one of its policies; and to provide answers to grieving family members or satisfy the public's interest in the death of newsworthy persons. Although autopsy reports are sometimes prepared for criminal investigations, their primary purpose is to provide an official explanation for an unusual death. Such official records are not ordinarily testimonial." (Barba, supra, 215 Cal.App.4th at p. 730, citing Dungo, supra, at pp. 619-621.) In Dungo, the court drew a distinction between two types of statements in an autopsy report: "(1) statements describing the pathologist's anatomical and physiological observations about the condition of the body, and (2) statements setting forth the pathologist's conclusions as to the cause of the victim's death." (Dungo, supra, 55 Cal.4th at p. 619.) It emphasized that the case involved only the first category, which were "less formal than statements setting forth a pathologist's expert conclusions." (Ibid.) Because the report had not been admitted, the court did not have to decide "whether that entire report is testimonial in nature," and because the testifying pathologist did not describe any conclusions from the report, the court did not need to "determine whether such testimony, if it had been given, would have violated defendant's right to confront the nontestifying pathologist." (Ibid.)