David, J.
This case raises an issue of first impression in Indiana and has divided both state and federal jurisdictions. Under the Sixth Amendment to the United States Constitution, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” The primary question is whether the admission of an autopsy report [prepared in 1977] into evidence [at the defendant’s 2014 murder trial] violates the defendant’s constitutional rights under the Confrontation Clause, where it has been demonstrated that the pathologist who performed the autopsy is unavailable to testify at trial, and the defendant had no prior opportunity for cross-examination. After examining U.S. Supreme Court precedent, precedent from other jurisdictions, relevant state statutes, secondary sources, and the circumstances of the present case, we now conclude that the autopsy report in the present case was not testimonial. Thus, Ackerman’s confrontation right was not violated when the report was admitted into evidence, nor did a violation arise when a surrogate pathologist testified regarding the information detailed in the autopsy report.
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… Ackerman asserts that the admission of an autopsy report that was prepared by Dr. Eisele, who is now deceased, and whom Ackerman had no prior opportunity to cross-examine, violated his rights under the Confrontation Clause of the United States Constitution. U.S. CONST., Amend. VI. …
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The U.S. Supreme Court has not addressed whether an autopsy report is testimonial in nature, but two cases have discussed the testimonial nature of forensic lab reports. Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009); Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011). Other State jurisdictions have looked to both Melendez-Diaz and Bullcoming as guidance in assessing whether autopsy reports should similarly be treated as testimonial statements. * * * [T]he differing conclusions reached by the states are informative by demonstrating that a bright-line rule for the testimonial nature of an autopsy report may not be appropriate or even workable.
Similarly, the U.S. Supreme Court’s analyses in Melendez-Diaz and Bullcoming also emphasize that the circumstances under which the certificates of analysis were developed supported the conclusion that the reports had been created for the purpose of aiding a police investigation. Because this case presents an issue of first impression in Indiana, we conduct our analysis in accordance with U.S. Supreme Court precedent and are mindful of other jurisdictions in assessing whether Ackerman’s constitutional confrontation rights were violated.
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The first step in assessing whether the autopsy report is testimonial is determining the primary purpose of the report. “An objective analysis of the circumstances of an encounter and the statements and actions of the parties to it provides the most accurate assessment of the ‘primary purpose’” of the statement. [Michigan v.] Bryant, 562 U.S. [344,] 360 [(2011)]. In making this objective assessment, we also consider relevant Indiana Statutes and guidance provided to Indiana coroners, who are tasked with investigating deaths and ensuring that autopsies are conducted when necessary.
Under Indiana Code § 36-2-14-6, the Coroner is tasked with investigating any death when notified that the person: “(1) has died from violence; (2) has died by casualty; (3) has died when apparently in good health; (4) has died in an apparently suspicious, unusual, or unnatural manner; or (5) has been found dead.” An autopsy may be conducted if the Coroner considers an autopsy necessary for the investigation, if required under another statutory section, or if the prosecuting authority requests that an autopsy report be conducted, at which time the Coroner is to employ a certified pathologist to perform the autopsy. Ind. Code § 36-2-14-6(d). The term “autopsy” has been defined as “the dissection of a dead body for the purpose of ascertaining the cause, seat, and nature of a disease or for the purpose of inquiring into the cause of death.” [Footnote omitted.] Ind. Code § 16-36- 2-1 (emphasis added). Thus, although an autopsy could aid in the investigation or prosecution of a criminal case, our statutes alone do not suggest that assisting in a criminal case is the primary purpose of an autopsy.
[Official Guidebooks] relied upon by Indiana coroners also indicate that a distinction is to be drawn between criminal investigations into death and the Coroner’s investigation, which involves autopsies. … None of the reasons for performing an autopsy [discussed in the 1980 “Guidebook for Indiana Coroners”] were based upon providing evidence for a criminal investigation.
… The [2001] Guidebook emphasizes that the relationship between Coroners and law enforcement should be cooperative, but independent. Id. In fact, “[i]ndependence is perhaps the key element in the coroner/law enforcement relationship,” especially when it comes to “rendering a determination of the manner and cause of death.” Id. at 76-77. Thus, the emphasis on independence also undercuts the position that an autopsy is prepared primarily to aid in a criminal investigation.
As such, we now turn to the circumstances surrounding W.W.’s death, when the autopsy report was created. On the night of W.W.’s death, the officer who first arrived at the scene sent out the DHC (Detective Has Copy) report explaining that a child was found dead and there had been a possible homicide. [Record citation omitted.] However, Ackerman reported to police that W.W. had stopped breathing and he attempted to revive him by beating on his stomach. [W.W.’s mother] confirmed that Ackerman made this same account to her when he called her at work. Although two police officers were present during the autopsy and there was a brief investigation into W.W.’s death, the police seemingly had no other evidence implicating Ackerman at that time. As noted by the Illinois Supreme Court in [People v.] Leach[, 980 N.E.2d 570 (Ill. 2012)], the presence of police officers during the autopsy should not be determinative of the primary purpose, as it would be just as possible that police may be present when the cause of death is accidental.
Based upon the circumstances surrounding W.W.’s death, we are not persuaded that Dr. Eisele would have known that the autopsy would primarily serve to aid the investigation and prosecution of a crime. The absence of any charges brought against Ackerman, even despite Dr. Eisele’s conclusion that the manner of death was homicide, demonstrates that the autopsy report alone is not determinative of whether a police investigation or prosecution will result. Here, it was not until an eyewitness came forward, over thirty years after the offense, that the prosecution sought criminal charges. Thus, unlike the Supreme Court’s conclusions in Melendez-Diaz and Bullcoming, we do not find that the autopsy report in this case was “created solely for an ‘evidentiary purpose’ . . . made in aid of a police investigation.” Bullcoming, 131 S. Ct. 2717.
As the Leach court similarly acknowledged, we can conceive a situation in which law enforcement is deep in the midst of a homicide investigation and the circumstances surrounding the death so obviously indicate that the death was a homicide that a pathologist performing an autopsy would very clearly understand that the purpose of the report would be to aid in the criminal investigation. However, we do not think that the circumstances here support that conclusion, especially when our own statutes provide that autopsies serve “the purpose of ascertaining the cause, seat, and nature of a disease or for the purpose of inquiring into the cause of death.” Ind. Code § 16-36-2-1 (emphasis added). Neither purpose is to aid law enforcement or provide evidence for criminal investigations or prosecutions. Thus, absent the unique circumstances that could arise to demonstrate that the purpose of the autopsy report was to aid in a criminal investigation, we cannot today conclude that the autopsy report in the present case was prepared for the primary purpose of establishing or proving past events for subsequent prosecution.
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After examining Indiana statutes, the Coroner’s Guidebook, the objective circumstances surrounding the autopsy, and the [lack of quasi-testimonial] formality of the autopsy report, today we hold that the autopsy report admitted in the present case was non-testimonial * * * [and therefore] did not violate Ackerman’s constitutional rights under the Confrontation Clause. Accordingly, the testimony provided by the pathologist, who did not perform the autopsy, also did not rise to a confrontation violation. This holding does not mean that every autopsy report will be found non-testimonial. Such a bright-line rule would seemingly go against the fact-sensitive analysis that is demanded by the primary purpose test. Rather, the particular circumstances of this case have not persuaded this Court that the autopsy report should be found to be testimonial in nature.
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Rush, C.J., Dickson, Rucker, and Massa, J.J., concur.
This case raises an issue of first impression in Indiana and has divided both state and federal jurisdictions. Under the Sixth Amendment to the United States Constitution, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” The primary question is whether the admission of an autopsy report [prepared in 1977] into evidence [at the defendant’s 2014 murder trial] violates the defendant’s constitutional rights under the Confrontation Clause, where it has been demonstrated that the pathologist who performed the autopsy is unavailable to testify at trial, and the defendant had no prior opportunity for cross-examination. After examining U.S. Supreme Court precedent, precedent from other jurisdictions, relevant state statutes, secondary sources, and the circumstances of the present case, we now conclude that the autopsy report in the present case was not testimonial. Thus, Ackerman’s confrontation right was not violated when the report was admitted into evidence, nor did a violation arise when a surrogate pathologist testified regarding the information detailed in the autopsy report.
….
… Ackerman asserts that the admission of an autopsy report that was prepared by Dr. Eisele, who is now deceased, and whom Ackerman had no prior opportunity to cross-examine, violated his rights under the Confrontation Clause of the United States Constitution. U.S. CONST., Amend. VI. …
….
The U.S. Supreme Court has not addressed whether an autopsy report is testimonial in nature, but two cases have discussed the testimonial nature of forensic lab reports. Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009); Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011). Other State jurisdictions have looked to both Melendez-Diaz and Bullcoming as guidance in assessing whether autopsy reports should similarly be treated as testimonial statements. * * * [T]he differing conclusions reached by the states are informative by demonstrating that a bright-line rule for the testimonial nature of an autopsy report may not be appropriate or even workable.
Similarly, the U.S. Supreme Court’s analyses in Melendez-Diaz and Bullcoming also emphasize that the circumstances under which the certificates of analysis were developed supported the conclusion that the reports had been created for the purpose of aiding a police investigation. Because this case presents an issue of first impression in Indiana, we conduct our analysis in accordance with U.S. Supreme Court precedent and are mindful of other jurisdictions in assessing whether Ackerman’s constitutional confrontation rights were violated.
….
The first step in assessing whether the autopsy report is testimonial is determining the primary purpose of the report. “An objective analysis of the circumstances of an encounter and the statements and actions of the parties to it provides the most accurate assessment of the ‘primary purpose’” of the statement. [Michigan v.] Bryant, 562 U.S. [344,] 360 [(2011)]. In making this objective assessment, we also consider relevant Indiana Statutes and guidance provided to Indiana coroners, who are tasked with investigating deaths and ensuring that autopsies are conducted when necessary.
Under Indiana Code § 36-2-14-6, the Coroner is tasked with investigating any death when notified that the person: “(1) has died from violence; (2) has died by casualty; (3) has died when apparently in good health; (4) has died in an apparently suspicious, unusual, or unnatural manner; or (5) has been found dead.” An autopsy may be conducted if the Coroner considers an autopsy necessary for the investigation, if required under another statutory section, or if the prosecuting authority requests that an autopsy report be conducted, at which time the Coroner is to employ a certified pathologist to perform the autopsy. Ind. Code § 36-2-14-6(d). The term “autopsy” has been defined as “the dissection of a dead body for the purpose of ascertaining the cause, seat, and nature of a disease or for the purpose of inquiring into the cause of death.” [Footnote omitted.] Ind. Code § 16-36- 2-1 (emphasis added). Thus, although an autopsy could aid in the investigation or prosecution of a criminal case, our statutes alone do not suggest that assisting in a criminal case is the primary purpose of an autopsy.
[Official Guidebooks] relied upon by Indiana coroners also indicate that a distinction is to be drawn between criminal investigations into death and the Coroner’s investigation, which involves autopsies. … None of the reasons for performing an autopsy [discussed in the 1980 “Guidebook for Indiana Coroners”] were based upon providing evidence for a criminal investigation.
… The [2001] Guidebook emphasizes that the relationship between Coroners and law enforcement should be cooperative, but independent. Id. In fact, “[i]ndependence is perhaps the key element in the coroner/law enforcement relationship,” especially when it comes to “rendering a determination of the manner and cause of death.” Id. at 76-77. Thus, the emphasis on independence also undercuts the position that an autopsy is prepared primarily to aid in a criminal investigation.
As such, we now turn to the circumstances surrounding W.W.’s death, when the autopsy report was created. On the night of W.W.’s death, the officer who first arrived at the scene sent out the DHC (Detective Has Copy) report explaining that a child was found dead and there had been a possible homicide. [Record citation omitted.] However, Ackerman reported to police that W.W. had stopped breathing and he attempted to revive him by beating on his stomach. [W.W.’s mother] confirmed that Ackerman made this same account to her when he called her at work. Although two police officers were present during the autopsy and there was a brief investigation into W.W.’s death, the police seemingly had no other evidence implicating Ackerman at that time. As noted by the Illinois Supreme Court in [People v.] Leach[, 980 N.E.2d 570 (Ill. 2012)], the presence of police officers during the autopsy should not be determinative of the primary purpose, as it would be just as possible that police may be present when the cause of death is accidental.
Based upon the circumstances surrounding W.W.’s death, we are not persuaded that Dr. Eisele would have known that the autopsy would primarily serve to aid the investigation and prosecution of a crime. The absence of any charges brought against Ackerman, even despite Dr. Eisele’s conclusion that the manner of death was homicide, demonstrates that the autopsy report alone is not determinative of whether a police investigation or prosecution will result. Here, it was not until an eyewitness came forward, over thirty years after the offense, that the prosecution sought criminal charges. Thus, unlike the Supreme Court’s conclusions in Melendez-Diaz and Bullcoming, we do not find that the autopsy report in this case was “created solely for an ‘evidentiary purpose’ . . . made in aid of a police investigation.” Bullcoming, 131 S. Ct. 2717.
As the Leach court similarly acknowledged, we can conceive a situation in which law enforcement is deep in the midst of a homicide investigation and the circumstances surrounding the death so obviously indicate that the death was a homicide that a pathologist performing an autopsy would very clearly understand that the purpose of the report would be to aid in the criminal investigation. However, we do not think that the circumstances here support that conclusion, especially when our own statutes provide that autopsies serve “the purpose of ascertaining the cause, seat, and nature of a disease or for the purpose of inquiring into the cause of death.” Ind. Code § 16-36-2-1 (emphasis added). Neither purpose is to aid law enforcement or provide evidence for criminal investigations or prosecutions. Thus, absent the unique circumstances that could arise to demonstrate that the purpose of the autopsy report was to aid in a criminal investigation, we cannot today conclude that the autopsy report in the present case was prepared for the primary purpose of establishing or proving past events for subsequent prosecution.
….
After examining Indiana statutes, the Coroner’s Guidebook, the objective circumstances surrounding the autopsy, and the [lack of quasi-testimonial] formality of the autopsy report, today we hold that the autopsy report admitted in the present case was non-testimonial * * * [and therefore] did not violate Ackerman’s constitutional rights under the Confrontation Clause. Accordingly, the testimony provided by the pathologist, who did not perform the autopsy, also did not rise to a confrontation violation. This holding does not mean that every autopsy report will be found non-testimonial. Such a bright-line rule would seemingly go against the fact-sensitive analysis that is demanded by the primary purpose test. Rather, the particular circumstances of this case have not persuaded this Court that the autopsy report should be found to be testimonial in nature.
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Rush, C.J., Dickson, Rucker, and Massa, J.J., concur.