Issue: Did admission of two autopsy reports through an expert witness who did not perform the
autopsies, as well as that witness’s testimony, violate the Sixth Amendment right to confrontation.

Yes.

Factual Background: Ms. Ortega was charged with murdering two young children in her care. Her
defense was insanity. The autopsy reports were admitted into evidence at trial through the People’s
witness, a medical examiner, who did not conduct either autopsy, nor was she present when the
autopsies were conducted.

Held: In a unanimous decision, the Court of Appeals overruled its prior decision, People v.
Freycinet, 11 N.Y.3d 38 (2008), holding that an autopsy report [with the expert opinion regarding
cause of death redacted] is not testimonial for purposes of the Confrontation Clause. Relying on
three subsequent Supreme Court cases, the Ortega Court rejected the continued viability of
Freycinet’s four-part “indicia of testimoniality” test. The Ortega Court held that an out-of-court
statement “need not be inherently inculpatory or ‘directly accuse’ a defendant of wrongdoing to be
considered testimonial.” Additionally, “[t]hat a forensic report records ‘near-contemporaneous
observations’ of a test or procedure does not shield it from the Confrontation Clause’s protections.”
Nor do the so-called “neutral, scientific” nature of the findings have any “effect on the testimonial
nature of the statement.” The Ortega Court also found that the autopsy reports were “solemn
declaration[s]” made for the purpose of establishing or proving some fact. Citing information in the
Medical Examiner’s file in this case, the Court held that the reports were created “under
circumstances which would lead an objective witness reasonably to believe that the statement would
be available for use at a later trial.”

With respect to the admissibility of the expert testimony, the Ortega Court held that the
appellate record did not establish that the expert based her expert opinion on her “independent
analysis” of primary data. “Autopsy photographs and video recordings of a conducted autopsy may
be properly relied upon by a testifying witness reaching their own independent conclusions. Further,
standard anatomical measurements devoid of the subjective skill and judgment of the performing
examiner constitute primary data upon which an expert may rely.” The Court noted that the People’s
expert, in Ortega, at times appeared to be reading from the displayed anatomical diagrams or the
autopsy reports themselves leading to the conclusion that the expert was providing “surrogate
testimony” for the absent medical examiner who conducted the autopsies.

The Court held that the Confrontation Clause error was harmless beyond a reasonable doubt.

CAL Observes: No doubt, New York prosecutors will push for a broad interpretation of what can
be done within the Confrontation Clause framework of Ortega. The Court held, “an expert witness
may offer conclusions as to the cause and manner of death, and surrounding circumstances, where
that testifying expert performed, supervised, or observed the autopsy or used their independent
analysis on the primary data.” CAL notes, however, that the People’s expert witness in Ortega has
testified in many cases, including the trial that led to granting habeas corpus relief in Garlick v. Lee,
1 F.4th 122 (2d Cir. 2021) – an important Confrontation Clause decision [handled by CAL’s own
Matthew Bova] that paved the way to the Ortega decision. Hopefully, Ortega will move prosecutors
to stop using such professional medical examiner witnesses and give defendants their right to
confront the doctors who actually conducted the autopsies.