Confronting Virtual Autopsies
By Joe Davis
The Sixth Amendment to the Constitution reads:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
Embedded within the amendment is what we have come to refer to as the “Confrontation Clause,” which stands for the principle that all criminal defendants are to be afforded the opportunity to be “confronted with the witnesses against [them].” This principle is one with great historical precedence, dating back even to biblical times. During Paul’s trip through the province of Asia, as he attempted to spread Christianity, he was arrested by Jewish elders who planned on putting him to death. Eventually, he was handed over to the Romans, who saw to it that he have a trial, as it was “not Roman practice to hand over an accused person before he has faced his accuser…”
In modern practice, the Confrontation Clause is most commonly referenced in order to keep out hearsay statements; all those who testify against a criminal defendant (with a few exceptions) should be available at trial and be subject to cross-examination. Recent Supreme Court decisions have shaped the long-established rule, and defined its interaction with hearsay statements more clearly. In Crawford v. Washington, the court found that statements made by the defendant’s wife to an interrogating police officer, if admitted, would violate the Confrontation Clause as long as said wife was not subject to cross-examination. In their discussion, the court clarified that the question to be asked concerning a statement was whether or not it was testimonial in nature. If a statement is testimonial in nature, the court found that it could not properly be admitted, regardless of whether it fell under a hearsay exception or had other “indicia of reliability.”
While Crawford dealt with spoken statements made by a witness, the court also listed non-verbal assertions that could fall under the new “testimonial” analysis, including affidavits. With the constant advances in scientific fields, especially forensics, courts found the discussion in Crawford inadequate, and looked for guidance in situations dealing with forensic evidence, including lab reports. In 2009, the Supreme Court answered this question with its decision in Melendez-Diaz v. Massachusetts. Here, the court held that a lab report prepared by a technician which stated that paraphernalia found on the defendant tested positive for cocaine, was testimonial, and therefore, inadmissible unless the defendant had an opportunity to cross-examine—or confront—the technician in question.
Even with the decision in Melendez-Diaz, there are still questions that remain unanswered by the Supreme Court. One recurring question goes as follows: Is an autopsy report testimonial and barred by the Confrontation clause? The majority of lower courts have decided to group autopsy reports in with lab reports, and consider them testimonial by Crawford’s standards. This seems like the correct outcome. The ability of a defendant to confront the pathologist, whose determinations could be the difference between a verdict of “guilty” or “not guilty,” falls in line with the ideas of justice that underscore the Confrontation Clause. That being said, there are non-testimonial components of autopsies, including photographs and x-rays, that do not raise any Confrontation clause issues.
As stated above, advances in science and technology are constant, and have raised yet another issue. If it were possible to produce all of the information necessary in a murder trial, using only the non-testimonial components of autopsies, would a prosecutor be able to circumvent the Confrontation clause altogether? The Virtopsy Project, based in Switzerland, hopes to make this situation a reality. Led by Michael Thali at the Institute of Forensic Medicine at the University of Berne in Switzerland, the project has developed a system by which a 3D model of the body can be constructed and digitally manipulated using only CT imaging, magnetic resonance imaging, and photogrammetric surface scanning. In a homicide case, this 3D image would illustrate all of the signs of trauma, including bullet paths and stab wounds, as well as the effects of such trauma, such as soft tissue damage and bone fractures. In essence, it would give a juror the opportunity to be as if they were seeing a body on the autopsy table for themselves. And because this 3D image is created by the use of all non-testimonial materials, there would be no violation of the Confrontation clause if the pathologist who performed the physical autopsy were not subject to cross-examination.
While I see considerable advantages that could accompany the “Virtopsy” approach, I am not certain that a complete circumvention of the Confrontation clause is among them. As the field of forensics continues to advance, it is important to maintain the constitutional protections that criminal defendants have enjoyed in this country from the beginning, namely the ability to confront the expert who comments on the cause of death of their alleged victim, regardless of what basis said expert rests his conclusions upon.
 U.S. CONST. amend. VI.
 Acts 25:16.
 Crawford v. Washington, 541 U.S. 36 (2004).
 Id. at 68.
 Id. at 51.
 Stephen Aiken, Autopsy Reports, the Confrontation Clause, and a Virtual Solution, 53 JURIMETRICS J. 213, 224 (2013).
 Id. at 231.
 Id. at 236.