Statements describing objective facts in an autopsy report prepared by a nontestifying pathologist that a testifying expert relies upon and relates to a jury are not testimonial for purposes of the Sixth Amendment confrontation right. Appellant was charged with and convicted of homicide. At trial, Dr. Lawrence gave his independent opinion as to the cause of death. He reached his opinion after reviewing an autopsy report prepared by Dr. Bolduc who performed the autopsy but did not testify. Neither the autopsy report nor accompanying photographs were introduced as evidence. Reversing the appellate court, the Supreme Court ruled that the statements in the autopsy report did not constitute testimonial out-of-court statements implicating appellant’s Sixth Amendment right of confrontation. To be testimonial, (1) the statement must be made with some degree of formality or solemnity and (2) the statement’s primary purpose must pertain to a criminal prosecution. Here, the objective facts about the condition of the victim’s body that Dr. Lawrence related to the jury were not so formal and solemn as to be considered testimonial. Further, the primary purpose of the autopsy report was not criminal investigation; criminal investigation was only one of several purposes for recording the facts in question. Such reports also serve to aid the decedent’s relatives in determining whether to file an action for wrongful death; or for an insurance company to determine coverage; or to satisfy the public’s interest in knowing the cause of death. The report was simply an official explanation of an unusual death and such records are ordinarily not testimonial. (Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305.) Because the report was not testimonial and its primary purpose was not for criminal prosecution, appellant’s Sixth Amendment confrontation rights were not violated by the testimony of Dr. Lawrence.

[Editor’s note: Dungo is one of three companion cases from the California Supreme Court addressing the confrontation clause. Justice Kennard authored the majority opinion with Chief Justice Cantil-Sakauye, Justice Baxter, Justice Werdegar, and Justice Chin concurring. Justice Werdegar wrote a concurring opinion with Chief Justice Cantil-Sakauye, Justice Baxter, and Justice Chin concurring. Justice Chin also authored a concurring opinion with Chief Justice Cantil-Sakauye, Justice Baxter, and Justice Werdegar concurring. Justice Corrigan and Justice Liu dissented.]