The medical examiner who performed the autopsy on my victim is not available to testify at trial. The other two M.E.s who signed off on the report are also unavailable. Can I use another M.E. from that office who didn't sign off on the report at trial?
No, you are out of luck. Just kidding: its a business record. Make sure the new ME is familiar with the findings and your theories.
There is new caselaw that I heard about but could not find. Is this still good law? I have a hospital record that I want another SANE nurse to testify too.....
John is right. The most recent word from the CCA which came down just a few weeks back is "no."
In our case summaries from Jan. 3rd we ran Lee v. State. It says that autopsy reports are testimonial and the Confrontation Clause requires the defendant to have the opportunity to cross-examine the person who prepared the report.
But you might not be totally out of luck. The court did say that another expert could testify as to their conclusions based on their reading of the autopsy record. Look over the opinion here and see if you think it fits with your facts.
I don't know if this applies to the SANE exam though.... The SANE exam is for medical purposes...
Hmmm… not completely sure… if the SANE exam and report were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial, then it's testimonial and falls under the Confrontation Clause, according to the Lee opinion.
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