How to Admit the Medical Opinion Contained in an Autopsy Report If Author of Report is Unavailable
Are you prosecuting a homicide case and the coroner who examined the body of the victim is unavailable? The medical opinion as to the cause of the death of the victim contained in the autopsy report is made inadmissible by the hearsay rule. How do you admit the opinion as to cause of death?
Business Record ExceptionThe autopsy report itself may be admitted as a business record. However, the medical opinion as to the cause of death contained in the autopsy report is still inadmissible hearsay. Evidence Code section 1271 states that a document is admissible as a business record only if "[t]he sources of information and method and time of preparation were such as to indicate its trustworthiness." (Evid. Code, section 1271, subd. (d).)  The proponent of the evidence has the burden of establishing trustworthiness. (People v. Diaz (1992) 3 Cal. 4th 495; 3 Witkin, Cal. Evidence (3d ed. 1986) Introduction of Evidence at Trial, section 1726, p. 1681.) The trial court, however, has "... wide discretion in determining whether sufficient foundation is laid to qualify evidence as a business record. On appeal, exercise of that discretion can be overturned only upon a clear showing of abuse." (People v. Lugashi (1988) 205 Cal. App. 3d 632, 638-639 [252 Cal.Rptr. 434].) Evidence Code section 1271 itself states no requirement that the person who prepared the business record testify regarding its contents.) In People v. Clark (1992) 3 Cal. 4th 41, a case in which the physician who conducted an autopsy and prepared the report died before being called to testify about his report. A different physician was permitted to testify about the report over the defendant's objection. In that case, the Court explained that the report was properly admitted into evidence as an official record under Evidence Code section 1280. Thus, "The contents of Dr. Carpenter's [the examining physician's] report were admitted under a 'firmly rooted' exception to the hearsay rule that carries sufficient indicia of reliability to satisfy the requirements of the confrontation clause." (3 Cal. 4th at p. 159; see also People v. Demes (1963) 220 Cal. App. 2d 423, 442 [33 Cal.Rptr. 896] [no error in allowing physician other than the examining coroner to testify regarding [9 Cal. 4th 980] autopsy report]; People v. Wardlow (1981) 118 Cal. App. 3d 375, 388 [173 Cal.Rptr. 500] [same].)
Public Record ExceptionThe coroner is a public official who performs autopsies and writes report in discharge of his or her legal duties. Therefore, the autopsy report is a public record. Evidence Code section 1280 states: Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies: (a) The writing was made by and within the scope of duty of a public employee. (b) The writing was made at or near the time of the act, condition, or event.
Admissibility of Medical OpinionA medical opinion to be admissible under the business records exception, the evidence "... must be a record of an act, condition, or event; a conclusion is neither an act, condition or event; it may or may not be based upon conditions, acts or events observed by the person drawing the conclusion...." (People v. Terrell (1955) 138 Cal. App. 2d 35.) The Terrell Court explained that "It is true that some diagnoses are a statement of a fact or a condition, for example, a diagnosis that a man has suffered a compound fracture of the femur is a record of what the person making the diagnosis has seen but this is not true where the diagnosis is but the reasoning of the person making it arrived at from the consideration of many different factors." (People v. Terrell, (1955) 138 Cal. App. 2d 35; People v. Reyes, 12 Cal. 3d 486, 503 [holding inadmissible a subjective psychiatric opinion and noting the distinction made in Terrell.) In People v. Beeler, 9 Cal.4th 953, the testifying physician's conclusion regarding the cause of death- a bullet wound to the heart-was based on his direct observation and is no different in kind from a diagnosis of a broken femur, the example noted in Terrell of an observed fact. Indeed, the court found that all of the coroner's relevant conclusions were of the same type. The coroner concluded in his report that: (1) "There is an entrance gunshot wound of the posterior left chest [i.e., the back]...." (2) "This is a distant gunshot wound entrance.... The wound is free of gunpowder, burns or stippling." (3) The shot pierced the heart. (4) "The direction of the [bullet] track is forwards, up 45 degrees and left to right 10 degrees." None of these conclusions, including that regarding the cause of death, was inadmissible under Evidence Code section 1271. In People v. Williams (1959) 174 Cal. App. 2d 364, a murder case in which a physician testified regarding the contents of an autopsy conducted by another physician. The court observed, "[T]he sole and only purpose served by the records in the trial was to establish the cause of death. Appellant certainly was not prejudiced by this testimony because neither at trial nor here, does he seriously challenge the fact that the life of the deceased was terminated by a gunshot wound." (Id., at p. 391.)
ConclusionTherefore, a medical opinion contained in a medical report may be admitted upon laying the proper foundation and a showing that the opinion is a record of what the author of the report observed.