from every other federal court in the nations that has considered this issue the district court the dis records outlier decision clearly can incorrectly concluded that petitioner had a clear a clearly established constitutional right to confront the author of an autopsy report yes i'm sorry i threw up i mean i think i guess the question i have for you is did they state appellate division rule on the basis of the uncertainty with respect to autopsy reports or did it rule on the ground it clearly had been rejected by the supreme court in its confrontation clause is your honor i think what the what the st apartment decision reflects is a is a autopsy report was not testimonial since it did not link the commission of the crime to a particular person now that's not the supreme that's not the law from the supreme court is it certification but but they were the record itself was was on sworn at the doctor the doctor maloney did sign it into a different os but that was merely for the purpose of identifying him identify herself as the m e who performed the autopsy and the date on which she performed it it does not hurt the report but the report described the physical condition of the body and terms of the warm sun the location of loans now and the law and the fact that th was a major played out how can she testified is something that i mean this is curious it's unsworn so it's a business record as to the physical condition of the body and admissible because conclude that he was stabbed if the th if it shows an interaction between humans and the fighting in some way but it doesn't show it and stab you well you're under the circumstances under the circumstances  measurements essentially essentially parroted to the jury here the medical examiner exercised degree a degree of independent judgment by providing her independent conclusions and opinions and she was required as she is required to do by the county the county a lot so early new york law surely clearly acquires a medical examiner to determine in her whether in her opinion a crime has been committed and to report it then deliver the autopsy report to the not testimonial because it didn't blink the commission of the crime to a particular person was a fair understanding of supreme court precedent and you really say that that was expressly rejected by this supreme court unsworn and i just want to get back to your question regarding whether the report is admitted into evidence at trial that people proposed that it be certified as a business record and not admitted into evidence defense counsel opposed and requested that the  division held that a report did not was not testimonial because it did not make the commission of the crime to a particular person what the court did was apply a standard that as the district court held was invalidated in two made there that massachusetts argued this these cert these reports don't prove who did it they're not accusatory of mr melendez diaz instead they prove what the substance was they're not in and they're not accusatory what the supreme court said was that analysis that limitation finds no support in the case law of united states supreme court instead what the court said was that if the statement is testimon then basically it basically then falls on the federal court to decide whether or not this is in fact testimony right yes or if the decision under laughter vs cooper and other williams vs taylor of gabrielle sure of gabriel sherman then she lays out her conclusions in great detail and at the end of the report the report is signed so this is a certified report signed and as formal as can be this is a solemn formal document that is certifying that the truth of the contents of the report the suggestion that a signature at the end of a formal government document does not certify the truth of the document strange to me that's the same thing as saying that if someone signs a brief or someone signs eight official formal government documents all they're doing is signing their name but not actually testing so the truth of to the truth of what they just set that's not how signatures work this was a certified document that the justice thomas is concurrence as is the decision of a single justice and under ed what we're looking at is the clearly established law from the majority of the supreme court not the decision of a single justice contrary so as to the application of the clearly established standard which is not was but is instead the primary purpose to ask no there is no reasonable argument in this case on these facts that this report was anything other than testimony a body is delivered to the medical  the medical examiner is informed that the that the victim was stabbed then and there are ruins on the bottom at that point in time a codefendant has been arrested and charged with murder and mr garlock has been identified as the suspect the medical examiner then proceeds to perform the autopsy concludes that the cause of death was in fact a homicide by stabbing to the left just then writes up the report with those conclusion then a month later when mr garlock has already been indicted she formally signed it she finalizes it and under the county law under new york state law transmit transmits it to the district attorney's office the primary purpose of this report was to codify crucial evidence for a criminal prosecution the district attorney is is basically saying and straw manning argument by saying what we're really saying is that a are always testimonial and i think that that was kind of the mistake that hensley the st circuit decision made to but that's all men were talking about here the question is not whether autopsy reports are always testimonial the question is whether i'm these facts these are very compelling the primary purpose because everyone knew that this was a homicide everyone knew that the cause of this death is homicide so everyone knew this wasn't a suicide this was an accident so everyone knew that once that medical examiner knew that once she put pen to paper why it might not be testimony or in that circumstance and that's why i think i think that that is a different case because and that's basically what this court confronted in united states versus james because under those circumstances it's not clear that the report is going to be serving as evidence in a criminal case in those in though in those circumstances when the medical examiner concludes well this could this was likely suicide or this was likely accident and that report is not geared towards criminal prosecution but that is absolutely not disk and i think it's really crime and if they do that then they have the obligation of the county to transmit the report to the district attorney it would seem to me that inherently than day they recognize they have a responsibility that they may be beginning a criminal lee was the primary purpose of the declarant to create to create a record that will true facts that would be potentially relevant for a trial and under these compelling facts there is no reasonable argument at that circumstances of united states versus james this court's decision when there is no criminal prosecution contemplated at the time of the report when it's looks like it's been a suicide and looks like it's an accident under those circumstances there is no indication that the primary purpose of kata flying those conclusions in a formal document is for prosecutions to present that may be the primary purpose is to comply with the law right well that's that's true of that's the same thing that that's true in the land  simple coming to any time a government agent as is creating these documents they're complying with the law but the question is are they complying with the law in a way that indicates that the document itself is going to be used in a criminal case yes the fact that they're complying with the law is one thing but the ultimate question is in writing what they're writing are they engaging in are they writing something that they know is going to be used in a criminal case so on like the medical examiner had been led to believe that this was a suicide and then conducted an examination of the body and they were since the state of the body and you know whatever in accordance with that assumption and they could take the report in in fact sugar for example that might be a different case as opposed to cocaine because then at that point in time when the the primary purpose of the declarant at the time of the report is written is not necessarily going to be to create a record for trial because possession sugar is not a crime but that's not this case in this case all signs indicate that this is a this this report is geared towards prosecution and if i could i just want to quickly address this point  basis the government has never argued that this that this report was introduced for anything other than the truth of the matter asserted this is the st time that they're arguing this point instead the report has always come in for the truth of the matter  happened at the trial was that the reporters introduced for its truth its introduce as exhibit one unlike in williams where there is no documentary to sit all and then the medical examiner comes along repeats the conclusions in the report repeats all the because in this case the report comes in and the contents are conveyed directly to the jury and without the testimony of hearsay in that report dr you like has no testimony it wasn't as if the government proffered this witness and said well she's going to offer an independent conclusion she doesn't need the autopsy or dr eli needed the autopsy report that was how she was proffered and that was exactly how the report team it it came in as the testimonial hearsay foundation for her to come in and repeat the conclusions in the entire court was was mindful of the lower court split and justice justice even disagreed with the majority he would have found that the report at issue there what was testimonial but he agreed under the more searching plainer inquiry that  well it's consistent with the other courts that have considered it at the time including this court who i am specifically specifically referring to footnote to where it where it it it raised questions about whether whether the law was was clearly established it and the divide that was present during james has not abated in the years following courts are still hopelessly divided over what treatment to give autopsy reports and my my opponent understanding focuses heavily on the merits but in the absence of a clearly defined rule by the supreme court we don't know the import of all these factors and how they fit into the context of the of the of the overall rule and i just i just wanna make one last point  we the people did not rely heavily on me on the autopsy report at all in fact during summations the prosecutor essentially said to the jury that all you need to do is watch the video here to see to determine what happened and that was that was entirely correct if the video does show none of that contributed in any way to that it seems like a pretty strong reliance on the autopsy report which was the st witness and the st exhibit introduced in the trial right yes or no and i believe i believe those remarks were made in response to a defen to comments defense counsel made in just summation on what people defense counsel relied heavily on the on the autopsy report to show that the petitioner lacked the required mens ran to commit to commit the crime been would have would have evidently justified the jury's verdict here given that it clearly depicts the homicide all right and i would also note that joanna was charged with act it was charged with acting in concert with