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Ohio Supreme Court: Prosecutions’ Use of Autopsy Report Did Not Violate Confrontation Rights

The Ohio Supreme Court has held that the admission of an autopsy report into evidence at trial does not violate a defendant’s Sixth Amendment confrontation rights.

The case is State v. Maxwell, Slip Opinion No. 2014-Ohio-1019.

The Defendant had been sentenced to death for the murder of his girlfriend.

In 2005, the Defendant had assaulted his girlfriend.  She sought a protection order and was asked to testify before the grand jury.  The Defendant attempted to get her to change her story.  When she said that she had just told the truth, the Defendant told a friend, that “the bitch was going to make him kill her.”  He later shot her in view of her child.

A medical examiner with the Cuyahoga County coroner’s office, conducted the victim’s autopsy.  He concluded that she had died from gunshot wounds of the head and that the death was a homicide.

The defendant argued that his constitutional right of confrontation was violated when the court allowed another doctor, who did not conduct the autopsy, to testify about the autopsy results at the trial.

The Sixth Amendment’s Confrontation Clause provides, “In all criminal prosecutions, the accused shall enjoy the right . . . to be   confronted with the witnesses against him . . .”  This means that an out-of-court statement of a witness who does not appear at trial is in most circumstances prohibited.

The Confrontation clause applies only to “testimonial statements.”  Which are statements made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later.

In this case, the court concluded that a substitute examiner, on direct examination, may at least testify as to his or her own expert opinions and conclusions regarding the autopsy and the victim’s death.   The court also concluded that an autopsy report was a no testimonial business record and that its admission did not impinge on a defendant’s confrontation rights.  The court explained:

Autopsy reports are not intended to serve as an “out-of-court substitute for trial testimony.” Instead, they are created “for the primary purpose of documenting cause of death for public records and public health.”  . . . .

Although autopsy reports are sometimes relevant in criminal prosecutions . . . they are not created primarily for a prosecutorial purpose.  . . . other courts have held that coroners are statutorily empowered to investigate unnatural deaths and authorized to perform autopsies in a number of situations, only one of which is when a death is potentially a homicide.



Ohio Supreme Court: Confrontation Clause Does Not Require An Expert To Testify When Defendant Stipulates To Report

The Ohio Supreme Court has held that When a defendant has stipulated to the admissibility and content of a nontestifying analyst’s scientific report, the testimony of a witness who relied on that report does not violate the defendant’s right to


The case is State v. Keck,  Slip Opinion No. 2013-Ohio-5160.]

In 2009 the defendant was found guilty of rape, gross sexual imposition, pandering obscenity involving a minor, pandering obscenity to a minor, pandering sexually oriented matter involving a minor, illegal use of a minor in nudity-oriented

material or performance, illegal use of a minor in nudity-oriented material or performance, and kidnapping.

An expert from the Bureau of Criminal Identification and Investigation (“BCI”) had created a DNA profile for defendant and the alleged victims from buccal swabs.

The defendant’s attorney stipulated both the admissibility and content of the BCI expert’s report.  At trial, another BCI forensic scientist testified that she had used the known DNA profiles generated by the first expert to compare against the DNA profiles that she had generated from samples collected from other evidence in the case.

This case involves the Sixth Amendment to the United States Constitution.  The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him * * *.”

In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the

the United States Supreme Court held that “testimonial statements” of a witness absent from trial can be admitted only where the declarant is unavailable and the defendant has had a prior opportunity to cross-examine.

In a later case, Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), the Court held that a defendant was entitled to confront an expert who provided testimony about illegal drugs at trial.  Finally, in Williams v. Illinois, ___ U.S. ___, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012), the Court the Confrontation Clause did not bar the use of out-of-court statements that are related by an expert solely for the purpose of explaining the assumptions on which the expert’s opinion rests.

The stipulation by the defendant was key in this case.  The Ohio Supreme Court held that by stipulating to the admissibility and content of the report, the defendant had waived any right to challenge the next expert’s reliance on it on the grounds that her testimony violated his right to confrontation.

The court further noted tat it “is especially revealing that, according to the record, the state was prepared and willing to call [the expert] to testify before [the defendant] agreed to the stipulation. It was thus [the defendant’s] own decision thatrendered [the] testimony unnecessary.”




Statement of Confidential Informant Improperly Admitted in Drug Trafficking Trial

An Ohio Court of Appeals found that the statement of a confidential informant that the defendant had sold him drugs should not have been admitted at a drug trafficking trial on unrelated charges.

The case is State v. Robinson, 2012-Ohio-6068.

The defendant was convicted of possession of crack cocaine, trafficking of crack cocaine, and having a weapon under disability.

The facts started in 2008.  A Detective of the Toledo Police Department received information from a confidential informant of drugs being sold at a location that Clifford Robinson was at.  The police conducted surveillance researched past crime reports at the location which led them to believe that drug trafficking was taking place.

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Ohio Supr CT: Use of Cell Phone Records by Prosecution Implicates 6th Amend. Confrontation Rights

The Ohio Supreme Court has held that cell-phone records produced by a cell-phone company constitute testimonial evidence that implicates a defendant’s right to cross-examine a witness under the Confrontation Clause of the Sixth Amendment to the United States Constitution.  The court concluded that ordinarily such records, if properly authenticated, are business records and are not testimonial.  However, in an instance where cell-phone records are not properly authenticated at trial, they are inadmissible as hearsay, and their admission violates a defendant’s rights under the Confrontation Clause.

The case is State v. Hood, Slip Opinion No. 2012-Ohio-5559.

Defendant James Hood allegedly was one of four men who burst into a Cleveland home and robbed at gunpoint nearly a dozen people who had gathered to celebrate the birthdays of friends and family.  A co-conspirator was shot dead during the course of the robbery.  Hood was arrested and charged with murder and multiple counts of aggravated burglary, aggravated robbery, and kidnapping.

The state introduced cell-phone records that it argued showed his communication with the other co-conspirators and his whereabouts during the early morning in question.  The prosecution argued that the records fell under the business-records exception to the hearsay rule and that the owner of the cell phone could verify the records based on his own knowledge.  A Detective who subpoenaed the records also testified as to how the police obtained the records from the cell phone company.

The issue in this case centers on the Sixth Amendment to the United States Constitution.  The Sixth Amendment provides that a criminal defendant has the right “to be confronted with the witnesses against him.”  The Supreme Court of the United States has explained that the Confrontation Clause bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.”

For the most part, business records – like cell phone records — are not covered by the Sixth Amendment because they are not “testimonial.”  Testimonial evidence, over-simplified slightly, is evidence that is intended for use at a trial.

The Ohio Supreme Court concluded: “Because cell-phone records are generally business records that are not prepared for litigation and are thus not testimonial, the Confrontation Clause does not affect their admissibility.”

While the Sixth Amendment may not have applied, the hearsay rules may bar the admission of the records unless an appropriate foundation for admission is provided.  Usually, evidence about the nature of the records is provided by a custodian of the record or by any other qualified witness.  The court held that the Detective did not qualify because the Detective did not “have enough familiarity with the record-keeping system of the business in question to explain how the record came into existence in the ordinary course of business.”

The court concluded that the cell-phone records in this case were, as a result, inadmissible hearsay.  Notably, the court then concluded that a hearsay violation violates the Confrontation Clause of the Sixth Amendment: “any error in admitting this hearsay would be constitutional error.”  This means that any violation of hearsay law could lead to heightened review of the evidence in the case.

This ruling did not help the defendant in this case, however, because “the evidence of Hood’s guilt was overwhelming.”



Ohio Supreme Court Rules That Constitution Does Not Prohibit Imposition of Prison Sentence for Juveniles

The Ohio Supreme Court has ruled that the invocation of an adult prison sentence upon a juvenile does not violate the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution.

The case is In re J.V., Slip Opinion No. 2012-Ohio-4961.

The facts are relatively simple.  In June 2005, pursuant to a plea agreement, a trial court imposed a blended sentence on the juvenile:  at least two years of incarceration at the Ohio Department of Youth Services (“ODYS”) and a stayed adult sentence of three years.  As a result of a fight at the DYS facility, the trial court invoked the stayed adult prison sentence.

Under Ohio law, a juvenile court may invoke the adult portion of a serious youthful offender’s sentence for failure to successfully complete the traditional juvenile disposition.   The conduct that can result in the enforcement of an adult sentence includes committing, while in custody or on parole, an act that is a violation of the rules of the institution or the conditions of supervision and that could be charged as any felony or as a first degree misdemeanor offense of violence if committed by an adult, or engaging in conduct that creates a substantial risk to the safety or security of the institution, the community, or the victim

The juvenile court must hold a hearing, and the juvenile has the right to counsel and to present evidence on his behalf.

The Juvenile argued that the judicial fact-finding necessary to invoke the stayed adult sentence violates his right to a trial by jury.

Under a United States Supreme Court decision, Apprendi v. Jersey, 530 U.S. 466, 490, “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

The court held that this case was inapplicable, because “when the juvenile court invoked the stayed sentence because [the juvenile] did not successfully complete his juvenile disposition, the judge did not increase [his] sentence; he merely removed the stay.  The sentence had already been imposed.”   In other words, “Even if the adult portion of the disposition is ‘only a potential sentence,’ the fact remains that [the juvenile] had been sentenced, and the juvenile court merely removed the stay of that sentence.”  Citing In re. D.H., 120 Ohio St.3d 540, 2009-Ohio-9.  The right to a jury trial, under this view, is not implicated because the juvenile court did not increase a sentence that had been previously imposed.

The court also noted that the right to a jury trial may not be applicable because juveniles do not enjoy a right to a trial by jury.


Second, the Juvenile argued that the burden of proof should be the heightened “beyond a reasonable doubt” standard of criminal trials rather than the lesser “clear and convincing” standard of the statute.

The court noted, as with the jury trial issue, that “juvenile proceedings are fundamentally different from adult criminal trials.”  The right to proof beyond a reasonable doubt is an element of a criminal trial.  In this case, however, the court did not “view the invocation proceeding as similar to a full-blown adult criminal trial.”  Instead, the court viewed the “invocation proceeding as similar to the proceedings incident to a criminal court’s imposition of a suspended sentence.”

A trial court may decide without proof beyond a reasonable doubt whether to impose a suspended additional prison term.  The United States Supreme Court has stated that “there is no right to a jury trial before probation may be revoked.”  Minnesota v. Murphy, 465 U.S. 420, 435 (1984).  The court explained:

Because the invocation proceeding is not a criminal proceeding, the fact-finding need not be according to the beyond-a-reasonable-doubt standard required in criminal trials.  The clear-and-convincing-evidence standard . . . is less rigorous, though stronger than a mere preponderance-of-the-evidence standard.  . . . We conclude that there is nothing fundamentally unfair about a statutory scheme that authorizes a judge to reach conclusions about facts according to a clear-and-convincing-evidence standard.

The court remanded the case on a non-constitutional issue.  Juvenile courts have jurisdiction over adjudicated delinquents until they are 21 years old, and do not have jurisdiction over adjudicated delinquents once they are 21 years old.  Because the Juvenile in this case was over 21, the juvenile court acted outside its jurisdiction and therefore that the disposition was void.



Improper Use of Statements Made by Alleged Child Sexual Abuse Victim to Child Advocacy Center is not Grounds for Reversal

The case of State v. Just, 2012-Ohio-4094, contains an interesting discussion of the use of statements may by an alleged child victim of sexual abuse to social workers at a Child Advocacy Center.

The facts of this case started in May 3, 2011.  At that time, the alleged victim wrote a note stating that the defendant, who lived next-door, had sexually abused her.  The alleged victim was eight years old at the time.

The alleged victim met with an intake worker from Wayne County Children Services as well as a sexual assault nurse examiner.  She described multiple incidents of abuse spanning over several years.

At trial, the court permitted to jury to hear a recording of the alleged victim’s interview with an intake worker from Wayne County Children Services.  The Defendant argues that the recording constitutes hearsay and also that its admission violated his rights under the Confrontation Clause.

[Full disclosure:  While working as a prosecutor, I helped write an amicus curiae brief on the Confrontation Clause in Davis v Washington, which is cited by the appeals court here, for the District Attorney’s Association for the U.S. Supreme Court.]

The Rules of Evidence permit the introduction of out of court statements – hearsay —  in certain limited circumstances.  One of these is when statements are “made for purposes of medical diagnosis or treatment.”

In this case, the interviewer testified that she is employed by Wayne County Children Services and acts as the supervisor for the intake unit assigned to sexual abuses cases.  She interviewed the alleged victim at Wooster Community Hospital’s Child Advocacy Center.  The interview was conducted while a sexual assault nurse examiner observed.  The interviewer claimed that the intake interview was conducted to aid the subsequent medical exam that will take place.

The court noted that an “interview at a child-advocacy center may serve dual purposes: one that is intended to elicit medical information for diagnosis and treatment, and one that is intended to gather forensic information for the purposes of prosecution.”  The Ohio Supreme Court has previously noted that child advocacy centers conduct interviews with the purpose of gathering as much information as possible in a single setting to reduce the trauma child-abuse victims may suffer  as a result of having to recount their abuse multiple times.  As a result, the interview may provide both medical information and non-medical information that is useful to the prosecution.

The court found that while the alleged victim made many statements for the purpose of medical diagnosis and treatment, she also “made statements, however, regarding the details of the circumstances surrounding the abuse.”  Because they were not necessary for medical treatment, the statements are not admissible as statements for medical diagnosis and also are subject to the Confrontation Clause.

The Confrontation Clause was not implicated in this case, however.  First, statements for medical diagnosis, because they are not “testimonial” – or meaning intended for legal proceedings — may be admitted without offending the Confrontation Clause.  Second, the Confrontation Clause guarantees the right of cross-examination and is not violated when, as in this case, the victim appears in court and testified.

The court concluded that even though the out of court statements were improperly admitted under the medical treatment exception to the hearsay rule, this did not justify a reversal of the defendant’s conviction.  This is because the alleged victim “testified at trial to the same events that she described in her interview.”  The court applied a rule that when hearsay testimony is essentially cumulative to a declarant’s in-court testimony, any resulting error is harmless.