CAN PAPER TESTIFY?

In People v. Freycinet, Gary Freycinet alleged that, in the midst of a confrontation, a knife he was holding "just hit" his girlfriend. The New York City Chief Medical Examiner (ME) uncovered a different version of events.

The ME's report noted the knife entered the victim's face near the left ear, and the positioning and angle of the entry and exit wounds were consistent with a "right-handed person as a stabber on top of the person being stabbed and with the stabber using force."

When the ME later moved to Seattle, Washington, and didn't appear at the trial, prosecutors were allowed to use the report over Freycinet's objection.

After the Queens County Supreme Court convicted Freycinet of second degree manslaughter, he appealed to the Appellate Division, Second Department, which affirmed the outcome.

On appeal to our state's highest court, the Court of Appeals noted the report's admissibility depended on whether or not it comprised "testimonial evidence."

In the absence of a hard-and-fast rule, the Court believed there are "various indicia of testimoniality." The first consideration is whether the reporting "entity" is "an arm of law enforcement." A court must then assess whether the report was a "record of objective facts" (or was more of an opinion, subject to human fallibility). And, finally, was the report "directly accusatory" of the defendant.

Here, the ME's office wasn't viewed as a "law enforcement agency," since it operated independently. And while its doctors exercised their expert judgment in observing and characterizing the victim's stab wounds, their conclusions were derived from "precise recording of ... observations and measurements." And, while the Constitution usually requires an accused be given a right to confront an accuser, the ME's role wasn't to determine who killed the victim, but how that individual died.

Since the report didn't "directly link" Freycinet to his girlfriend's death, the Court of Appeals concluded the document wasn't testimonial and had been properly considered.

That's the end of that report.