Recently I had the privilege of speaking at a conference of Alaska judges, prosecutors, and public defenders on hearsay and confrontation issues. Perhaps the only notable thing that I said was the splintered opinion in Williams v. Illinois will inevitably result in a lot of litigation on the parameters of the Confrontation Clause.

The California Supreme Court issued two decisions recently on the Confrontation Clause and forensic reports.  The first case, People v. Lopez, involves a lab report of blood alcohol content.   A majority of the court says that the analyst doesn’t have to show up because the lab report was not sufficiently formal.
The second case, People v. Dungo, involved an autopsy report in a murder case.  The majority decision says the autopsy was not testimonial because it was not made with the primary purpose of creating evidence for trial. But the fact situation does illustrate that there may be reasons for courts to be cautious about forensic experts or applying the rationale of People v. Dungo in your jurisdiction.  The prosecution prior to trial informed the court that pathologist George Bolduc, who had performed the autopsy of victim’s body, would not be called as an expert witness. Instead, the prosecution‘s witness would be forensic pathologist Robert Lawrence who at the time of trial was Dr. Bolduc‘s employer. The prosecution did not indicate that Dr. Bolduc was unavailable to testify. Defendant objected to the prosecution‘s tactic.

At a  pretrial evidentiary hearing, Dr. Lawrence testified on cross-examination by the defense that Dr. Bolduc had at one point been a coroner in Kern County but was fired, a fact not disclosed in Bolduc’s résumé. The record showed that in his previous employment as a coroner for Orange County, Dr. Bolduc had resigned under a cloud. As a result of these incidents, Dr. Lawrence said, some newspaper articles asserted that Dr. Bolduc was incompetent, and prosecutors in several counties in California refused to use him as an expert witness in homicide cases. Dr. Lawrence had seen no evidence that [Dr. Bolduc] ever did anything incompetent.  He said the allegations against Dr. Bolduc were generated by people who don’t know what they’re talking about, and he described much of the criticism of Dr. Bolduc as ridiculous and patently absurd.  Dr. Lawrence agreed with the conclusion in Dr. Bolduc’s autopsy report that the victim died from asphyxia due to neck compression.

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