The Law of Unintended Consequences Strikes Again: Does Murder Have a Statute of Limitations Now? The Sky Will Fall Unless the Supreme Court Changes Its Interpretation of the Right of Confrontation

In its 2004 decision in Crawford v. Washington, the Supreme Court of the United States created the legal equivalent of a major earthquake by changing the interpretation of the Sixth Amendment Right of Confrontation from what it had applied for the previous twenty-four years under Ohio v. Roberts. Out-of-court statements were now excluded unless the declarant was unavailable and the defense had an opportunity to cross-examine him. This Crawford interpretation was extended to apply to analysts who generated forensic laboratory reports in Melendez-Diaz v. Massachusetts and Bullcoming v. New Mexico. In the most recent case of Williams v. Illinois, the Court was unable to reach a majority opinion on the admissibility of an expert’s opinion that was based on another expert’s DNA forensic laboratory report. As a result, it appears that if the same Melendez/Bullcoming rules are applied to forensic autopsy reports, the cause and manner of death of the victim cannot be proved once the autopsy pathologist dies: the autopsy report is inadmissible and no substitute pathologist can satisfy the Melendez/Bullcoming requirements. This de facto would lead to the unintended creation of a statute of limitations for murder tied to the lifetime of the autopsy pathologist and would abolish a very old Common Law criminal law rule. The Court has not drawn a bright-line that can be applied to autopsy reports. As a result, the lower courts have been left to their own individual interpretations. There is a split nationwide among the lower courts on the proper application of Melendez/Bullcoming to autopsy reports and surrogate pathologist testimony. Some of the courts have found that the autopsy report and any surrogate testimony about it are excluded by Melendez/Bullcoming if the autopsy pathologist does not testify. On the other hand, many other jurisdictions, including California, Ohio, and the Second Circuit have applied the Melendez/Bullcoming rules in such a way that appears to be contrary to the specific holdings of those cases: i.e. they conclude that parts of the autopsy report are admissible and that surrogate testimony based on those parts is permissible after Melendez/Bullcoming. This writer believes that these jurisdictions are misapplying the dictates of those cases, but that they are doing so, in part because of necessity and public policy: they have been faced with the unintended consequences of those cases in a murder where the autopsy pathologist had died, something that the Supreme Court of the United States has yet to grapple with.This paper will examine how the slippery slope of the Crawford/Melendez/Bullcoming line of cases has led to those unintended consequences and how the Supreme Court of the United States will either have to modify its interpretation of the Right of Confrontation or accept a de facto statute of limitations when faced with the proper murder case.Part I will briefly discuss the original Ohio v. Roberts rule and its criticism. Part II will discuss the major shift that took place with the 2004 Crawford decision and its progeny, how the Supreme Court Justices are substantially divided on the Confrontation issue, and how the lower courts have not been provided with any bright-line test to apply. Part III will discuss how various jurisdictions have applied the amorphous Crawford/Melendez/Bullcoming rules to autopsy reports and surrogate testimony regarding the cause of death in cases where the original autopsy pathologist had died or is otherwise unavailable. Part IV will discuss some of the various proposals that have been suggested to resolve this issue and will present a construct of the Right of Confrontation that should be adopted by the Court as a matter of public policy in order to avoid creating a statute of limitations for murder.