Criminal law — Manslaughter — Evidence — Expert testimony — Confrontation clause — Defense motion to exclude substitute medical examiner who state intends to call to testify about autopsy results in lieu of unavailable medical examiner who conducted autopsy is denied in substantial part — Substitute medical examiner may testify to opinions and conclusions that are her personal and original work product based upon her review of autopsy notes and photos and the application of her training and experience to what she reviewed — Before substitute medical examiner may testify, state must call witness who can authenticate and sponsor into evidence any photos or other evidentiary artifacts upon which substitute medical examiner’s opinion rests — Court can imagine no circumstance in which original medical examiner’s autopsy report would be admissible

STATE OF FLORIDA, Plaintiff, v. EPHRAIM ARMANI CASADO, Defendant. Circuit Court. 11th Judicial Circuit in and for Miami-Dade County, Criminal Division. Case No. F22-11042. April 7, 2025. Milton Hirsch, Judge.ORDER ON DEFENDANT’S MOTIONTO EXCLUDE SUBSTITUTE MEDICAL EXAMINER

Thieves are not judged but they are by to hear,

Although apparent guilt be seen in them

— Wm. Shakespeare, Richard II Act IV, sc. 1

The Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. Although the jurisprudence of the Confrontation Clause may seem “confound[ing],” even to justices of the Supreme Court, see infra at 12 (discussing Franklin v. New York, 604 U.S. ___ (2025) [30 Fla. L. Weekly Fed. S773a]), the actual language of that clause seems straightforward enough. Certainly it seemed that way to Dean Wigmore:

It is generally agreed that the process of confrontation has two purposes, a main and essential one, and a secondary and subordinate one. (1) The main and essential purpose of confrontation is to secure the opportunity of cross-examination. The opponent demands confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross-examination, which cannot be had except by the direct and personal putting of questions and obtaining of immediate answers.

. . .

(2) There is, however, a secondary advantage to be obtained by the personal appearance of the witness; the judge and the jury are enabled to obtain the elusive and incommunicable evidence of a witness’s deportment while testifying, and a certain subjective moral effect is produced upon the witness.

John Henry Wigmore, II A Treatise on the System of Evidence in Trials at Common Law § 1395 at 1749-51 (1st ed. 1904) (hereinafter “Wigmore at ___”).

To the general rule thus stated, the law (and Wigmore) recognized exceptions.

[T]his right of cross-examination thus secured was not a right devoid of exceptions. The right to subject opposing testimony to cross-examination is the right to have the Hearsay rule enforced; for the Hearsay rule is the rule requiring cross-examination . . . . Now the Hearsay rule is not a rule without exceptions; there never was a time when it was without exceptions. There were a number of well-established ones at the time of the earliest constitutions, and others might be expected to be developed in the future. The rule had always involved the idea of exceptions, and the constitution-makers indorsed the general principle merely as such. They did not care to enumerate exceptions; they merely named and described the principle sufficiently to indicate what was intended.

Wigmore at § 1397 at 1754-55.¹

The motion at bar is concerned, not with the application of any of the exceptions,² but with the application of the general rule. The witness contemplated by the Sixth Amendment is someone who has seen, heard, or done, something bearing upon the merits of the case. It is such a witness whom a criminal defendant has the right to confront and cross-examine. Someone who can do no more than retail what someone else has seen, heard, or done, is not, under the general rule, a witness. Absent an exception, cross-examination of such a person would not vindicate a defendant’s Confrontation-Clause right. “It is important to appreciate this, the true interpretation of the constitutional provisions, because the erroneous answer has occasionally been advanced, the ‘witness’ who is to be brought face to face is merely the person now reporting another’s former testimony.” Wigmore at § 1397 at 1756.

In connection with a homicide that occurred in 2022, Defendant Ephraim Armani Casado is charged with manslaughter with a deadly weapon. The autopsy of the decedent was performed by Dr. Mark Schuman, then employed at the Office of the Miami-Dade County Medical Examiner. In the intervening years, however, Dr. Schuman has left that office. The prosecution has listed a substitute medical examiner, Dr. Emma Lew, as the expert who will testify at the trial of this cause. The substitution of one medical examiner for another is and has long been common enough, and would be unremarkable but for the recent decision of the United States Supreme Court in Smith v. Arizona, 602 U.S. 779 (2024) [30 Fla. L. Weekly Fed. S349a]. Citing Smith, the defense moves in limine to exclude the testimony of Dr. Lew³ at trial on the grounds that such testimony would violate Mr. Casado’s Sixth Amendment right to confront the witnesses against him. See also Fla. Const. Art. I § 16(a).

The opinion of the Third District in Banmah v. State, 87 So. 3d 101 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D992b] antedates Smith by a dozen years, and summarizes the state of the law as it then, and had long, existed. As it happens, Dr. Lew was the medical examiner who was unavailable in Banmah; a Dr. Hyma was substituted as the prosecution’s trial witness. Banmah, 87 So. 3d at 102. Over the defendant’s Confrontation Clause objection, the appellate court ruled that, “it is proper to permit a substitute medical expert to testify as to cause of death despite the fact that the expert did not perform the autopsy, when the substitute medical expert relies on the autopsy report.” Id. at 103 (collecting cases). Banmah appears to justify the admission of the testimony of the substitute medical examiner on three grounds.

First, many of the cases relied upon by Banmah, such as Capehart v. State, 583 So. 2d 1009 (Fla. 1991) and Bender v. State, 472 So. 2d 1370 (Fla. 3d DCA 1985), hold that the testimony of a substitute medical examiner is not inadmissible hearsay, although such testimony is based in substantial part on the findings of the original medical examiner. “Capehart relied on § 90.704, Florida Statutes, which provided that an expert may, in forming an opinion, rely on facts and data not in evidence if those facts are of a type reasonably relied on by experts in the subject to support the opinion expressed.” Banmah, 87 So. 3d at 103 (quoting Capehart, 583 So. 2d at 1012). Section 90.802, Florida Statutes, renders hearsay inadmissible except as provided by statute. Section 90.704 is the statute that makes admissible an expert opinion that subsumes hearsay. But statutory exceptions to the rule against hearsay do not overrule constitutional principles regarding confrontation.⁴ If the testimony of a substitute medical examiner violates the Confrontation Clause, then it is inadmissible without regard to § 90.704 and the law of hearsay. “Just because evidence is admissible under § 90.704 . . . does not mean that the evidence does not violate the Confrontation Clause.” Rosario v. State, 175 So. 3d 843, 861 (Fla. 5th DCA 2015) [40 Fla. L. Weekly D2015a].

As a second ground for admitting the testimony of the substitute medical examiner, the Banmah court noted that, “autopsy reports are non-testimonial because they are prepared pursuant to a statutory duty, and not solely for use in prosecution.” Banmah, 87 So. 3d at 103. Here the court speaks the language of Confrontation Clause jurisprudence and not of hearsay. Unconfronted statements are inadmissible only if they are testimonial in nature, i.e., only if they are “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 (2009) [21 Fla. L. Weekly Fed. S990a]. Thus the “threshold question” in Confrontation-Clause cases “is whether the challenged statement is testimonial.” United States v. Figueroa-Cartagena, 612 F. 3d 69, 85 (1st Cir. 2010). “If it is not, the Confrontation Clause ‘has no application.’ ” Figueroa-Cartagena, 612 F. 3d at 85 (quoting Whorton v. Bockting, 549 U.S. 406, 420 (2007) [20 Fla. L. Weekly Fed. S99a]). Although Banmah is not alone in holding that autopsy reports are non-testimonial, see, e.g., United States v. James, 712 F. 3d 79, 99 (2d Cir. 2013), there is widespread support, in Florida and elsewhere, for the contrary proposition, see, e.g., United States v. Ignasiak, 667 F. 3d 1217, 1231 (11th Cir. 2012) [23 Fla. L. Weekly Fed. C701a]; Commonwealth v. Avila, 912 N.E. 2d 1014, 1029, 1030 n.20 (Mass. 2009). The issues before the Fifth District in Rosario v. State, supra, were whether the autopsy report prepared by an unavailable medical examiner was admissible (an issue not raised by the motion at bar); and whether a substitute medical examiner who did not perform or participate in the autopsy could testify as to the cause of death (the precise issue in Banmah, and in the present case).

The Rosario court read Melendez-Diaz, supra, and other Supreme Court precedents for the proposition that, “the United States Supreme Court has recognized that autopsy reports have historically been treated in early America as testimonial.” Rosario, 175 So. 3d at 854. The court also consulted, “the circumstances under which the [autopsy] report was prepared, the primary purpose of the report, and the solemnity of the report.” Id. at 855. Having canvassed these factors, the court:

conclude[d] that an autopsy report . . . is testimonial hearsay under the Confrontation Clause. With respect to the broad statement in Banmah that autopsy reports are non-testimonial because they are prepared pursuant to a statutory duty, and not solely for use in prosecution, we respectfully disagree. . . . Regardless of whether the report is actually used at trial, it is reasonably foreseeable to believe that it may be used prosecutorially, especially when the medical examiner concludes that the cause of death was a homicide, as in this case.

Id. at 858 (internal quotations and citations omitted).

But the issue raised by the motion at bar is not whether the autopsy report itself is admissible at trial; it is whether the testimony of a medical examiner who did not perform the autopsy, but who has reviewed the autopsy report, notes, photos, etc., prepared by the medical examiner who did perform the autopsy, may testify at trial. That issue “involves concern over whether the surrogate medical examiner is serving as an improper conduit for what would otherwise be inadmissible evidence.” Id. at 860. See State v. Stanfield, 347 P. 3d 175, 186 (Id. 2015) (“A defendant’s right to confrontation is violated when ‘an expert acts merely as a well-credentialed conduit’ and does not provide any independent expert opinion”) (quoting United States v. Ramos-Gonzalez, 664 F. 3d 1, 5-6 (1st Cir. 2011)). See also Linn v. Fossum, 946 So. 2d 1032, 1037-38 (Fla. 2006) [31 Fla. L. Weekly S741a] (“Florida courts have routinely recognized that an expert’s testimony ‘may not merely be used as a conduit for the introduction of . . . otherwise inadmissible evidence’ ”) (quoting Erwin v. Todd, 699 So. 2d 275, 277 (Fla. 5th DCA 1977)).

“[T]his is not to say that a surrogate medical examiner may never testify as to the cause and manner of death of a victim after reviewing another medical examiner’s report.” Rosario, 175 So. 3d at 861. In Rosario, the substitute medical examiner “did not rely on [her predecessor’s] conclusion as to [the victim’s] cause of death. She formed her own independent conclusion that [the victim’s] death was a homicide.” Id. at 862. Such testimony was admissible, in the view of the Rosario court.

The third and final ground upon which the Banmah court concluded that the testimony of the substitute medical examiner was admissible was that of practicality. “[O]bviously, the victims died because they were shot; this is the basis of the charges against the defendant and there is no evidence to contradict this. The autopsy photos were admitted without objection, and show gunshot wounds.” Banmah, 87 So. 3d at 103-04. This, of course, is the language of harmless error jurisprudence, not of Confrontation Clause jurisprudence. It is the language of common sense. It tells us that, even if the constitutional niceties were not complied with, the outcome was unaltered. It tells us that no advanced degree in pathology is needed to look at a dead man shot full of holes and conclude that he didn’t die of old age.⁵ The doctrine of harmless error tells us these things. But it tells us nothing about whether the testimony of the substitute medical examiner was, conformably to the Confrontation Clause of the Sixth Amendment, admissible in the first place.

The Rosario court certified conflict with Banmah. Rosario, 175 So. 3d at 862. The Florida Supreme Court has not addressed that conflict. In 2017, however, it decided Calloway v. State, 210 So. 3d 1160 (Fla. 2017) [42 Fla. L. Weekly S45a].

Calloway was a reprise of the same fact-pattern: one medical examiner performed the autopsy, but another medical examiner testified at trial. The Supreme Court “conclude[d] that the surrogate testimony of [the substitute medical examiner] did not violate Calloway’s rights under the Confrontation Clause.” Calloway, 210 So. 3d at 1195. The substitute medical examiner was subjected to confrontation and plenary cross-examination. He did not sponsor the autopsy report (which he had not written) into evidence, and so far as appears from the reported opinion, it was never received at all. “Instead, [the substitute medical examiner] clearly explained to the jury that his independent opinion was derived from the photographs taken by investigators at the scene and from [the original medical examiner’s] autopsy reports. It was this independent opinion that was available during trial and subject to cross-examination.” Id.

Calloway settled the law in Florida regarding the use by the prosecution of a substitute medical examiner. The trial court must satisfy itself that the testimony to be offered by the substitute witness is the product of his or her own review of the facts, and consists of his or her own expert opinions and conclusions. “The Sixth Amendment [is] not satisfied by [the testimony of] a surrogate witness . . . who ha[s] formed no independent opinion concerning the forensic examination results.” United States v. Soto, 720 F. 3d 51, 58 (1st Cir. 2013) (internal quotation marks and citation omitted). If evidentiary artifacts of the autopsy — photographs, for example — are to be received in evidence, the better practice would be for someone who was present when the photographs were taken, and can testify that they fairly and accurately depict that which they purport to depict, to sponsor them into evidence. That sponsoring witness will not be the substitute medical examiner, except in the extremely unlikely event that he or she was present when the photos were taken. The autopsy protocol itself is almost certainly inadmissible. If the substitute medical examiner has prepared his or her own diagrams or other visual aids, they would be admissible if the necessary evidentiary foundation is laid.⁶

It is the thesis of the motion at bar, however, that the foregoing analysis has been entirely deracinated by the recent opinion of the United States Supreme Court in Smith v. Arizona, ___ U.S. ___, 144 S.Ct. 1785 (2024) [30 Fla. L. Weekly Fed. S349a]. Smith involved, not the testimony of a substitute medical examiner to explain cause and manner of death, but the testimony of a substitute lab analyst to explain that a substance was contraband. That in itself is an important distinction. If an analyst at the police crime lab dies or leaves his employment, it is the simplest thing in the world to have another analyst re-test the suspected drugs. But if a medical examiner dies or leaves his employment, is the prosecution obliged to obtain an Order of Exhumation and arrange for a second autopsy? In the case at bar, the mortal remains of the decedent have lain in Florida’s warm, moist, creature-infested soil for nearly three years. Would a second autopsy even be possible at this late date? Could it be expected to produce reliable, admissible conclusions as to cause and manner of death? The United States Supreme Court has identified “autopsies as an example of a forensic test that cannot be repeated.” Hensley v. Roden, 755 F. 3d 724, 732 (1st Cir. 2014) (citing Melendez-Diaz, 557 U.S. at 318 & n. 5 and id. at 337 (Kennedy, J., dissenting)). Thus the facts in Smith may offer a poor analogy for the facts at bar.

In any event, Smith decided very little. Smith holds that the testimony of a substitute lab analyst — and, as the defense reads Smith, that of a substitute medical examiner — is offered for its truth, and is therefore hearsay. Whether it is testimonial hearsay is something as to which the Smith court offered some thoughts but no ruling. “To implicate the Confrontation Clause, a statement must be hearsay . . . and it must be testimonial — and those two issues are separate from each other.” Smith, 144 S.Ct at 1801. “But that issue” — i.e., whether the statements in question are testimonial for purposes of Confrontation Clause analysis — “is not now fit for our resolution. The question presented in Smith’s petition for certiorari did not ask whether [the original lab analyst’s] out-of-court statements were testimonial. . . . That dispute is best addressed by a state court. So we return the testimonial issue . . . to the Arizona Court of Appeals.” Id.

For present purposes, the issue whether the original medical examiner’s autopsy protocol is testimonial has been “addressed by a state court.” It has been addressed by the highest court of this state. In Calloway, supra, the Florida Supreme Court determined that autopsy protocols are testimonial for Confrontation Clause purposes. For that and other reasons, they are inadmissible when a substitute medical examiner testifies at trial. After Smith, as before it, a substitute medical examiner can, as noted supra at 9-10, offer testimony as to cause and manner of death if the trial court is satisfied that the testimony thus offered is the product of the substitute witness’s own review of the facts, and consists of his or her own expert opinions and conclusions.

In any event, the shelf-life of Smith, and indeed of the entire present jurisprudence of confrontation, may be short. In Franklin v. New York, 604 U.S. ___ (2025) [30 Fla. L. Weekly Fed. S773a], the Supreme Court denied a petition for certiorari. Justices Alito and Gorsuch, in separate statements respecting the denial, expressed their views that (as Justice Alito put it), “in an appropriate case we should reconsider the interpretation of the Confrontation Clause that the Court” presently employs. Franklin, 604 U.S. at ___. This is so because, “Despite repeated attempts to explain what [the Court’s Confrontation Clause jurisprudence] meant by ‘testimonial statements,’ our Confrontation Clause jurisprudence continues to confound courts, attorneys, and commentators.” Id. See also id. at ___ (statement of Gorsuch, J.) (“we may need to rethink our course sometime soon”).

But that is matter for another day. The jurisprudence of confrontation may be a work in progress, but it is sufficiently well-settled for me to adjudicate the motion at bar. The prosecution may call Dr. Lew at trial. Prior to her offering any opinions and conclusions, however, the prosecution must lay a sufficient foundation to satisfy me that those opinions and conclusions are her personal and original work product, i.e., that they are the fruits of her own review of photos, notes, etc.; and of her application of her training and experience to what she has reviewed. Pursuant to Fla. Stat. § 90.705(2), the defense will be afforded ample latitude in voir dire on this issue.⁷

Prior to Dr. Lew’s testimony, the prosecution will be obliged to call a witness who can authenticate and sponsor into evidence any photos or other evidentiary artifacts upon which Dr. Lew’s opinion rests. Presumably the logical witness for this purpose is the autopsy photographer, but that is for the prosecution to decide. If Dr. Lew has prepared any demonstrative exhibits or illustrative aids, they must be authenticated in the customary fashion, see n. 6, supra. I can at present imagine no circumstance in which Dr. Schuman’s autopsy report would be admissible.

The court in United States v. Williams, 740 F. Supp. 2d 4 (D.D.C. 2010) (Paul L. Friedman, J.), proceeded in the same fashion. There, the substitute medical examiner was permitted to “testify as to his own independent opinion concerning the cause or manner of [the decedent’s] death, even if that opinion is based in part on the inadmissible autopsy report.” Williams, 740 F.Supp.2d at 9. “So long as [the substitute medical examiner] does not disclose any of the testimonial hearsay underlying his opinion on direct examination and has a sound basis for his opinions and conclusions, his testimony would not offend the Confrontation Clause.” Id. Judge Friedman concluded by admonishing the prosecution

that [the substitute medical examiner] may testify only as to his ‘independent judgment,’ reached by application of his training and experience to the sources before him — not merely by adoption of [the original medical examiner’s] opinions. . . . [The substitute medical examiner] would appear to have several pieces of evidence from which to draw his own conclusions regarding [the decedent’s] death. For example, [the decedent’s] autopsy yielded not only [the original medical examiner’s] report, but also a set of photographs of the decedent’s body and microscopic slides of bodily tissue. . . . Those items, in combination with [the original medical examiner’s] report and any other appropriate evidence, might well provide an adequate basis for the formation of an expert opinion. Furthermore, the photographs and/or slides, unlike the autopsy report, presumably would be admissible in evidence, assuming they can be authenticated . . . . The government and [the substitute medical examiner] must take care to ensure that [the substitute medical examiner] is in no way reduced to parroting [the original medical examiner’s] findings. . . . The Court certainly will be alert to such a risk.

Id. at 10 (internal citations, quotation marks, and brackets omitted).

I, too, conclude by offering that admonition. I, too, will be alert to that risk.

Defendant Ephraim Casado’s Motion in Limine to Exclude Substitute Medical Examiner’s Testimony is denied in substantial part as more fully set forth hereinabove.

__________________

¹The constitutional guarantees of confrontation appearing in both the U.S. and most state constitutions were, in Wigmore’s view, nothing more than codifications of those common-law principles of evidence, and specifically of hearsay, from which they derived. These constitutional guarantees were not intended to, and did not, “affect the common-law requirement of confrontation, otherwise than by putting it beyond the possibility of abolition by an ordinary legislative body.” Wigmore at § 1397 at 1754.

²At common law, and at the time the U.S. and early state constitutions were adopted,

The exceptions to this rule [we]re of cases which are excluded from its reasons by their peculiar circumstances; but they [we]re far from numerous. If the witness was sworn before the examining magistrate, or before a coroner, and the accused had an opportunity then to cross-examine him, or if there were a former trial on which he was sworn, it seems allowable to make use of his deposition, or of the minutes of his examination, if the witness has since deceased, or is insane, or sick and unable to testify, or has been summoned but appears to have been kept away by the opposite party. So, also, if a person is on trial for homicide, the declarations of the party whom he is charged with having killed, if made under the solemnity of a conviction that he was at the point of death, and relating to matters of fact concerning the homicide, which passed under his own observation, may be given in evidence against the accused.

Thomas M. Cooley, A Treatise on Constitutional Limitations 451-52 (7th ed. 1903).

³The defense motion is specific on this point: It is a motion to exclude nothing but Dr. Lew’s testimony. See Defense Motion In Limine to Exclude Substitute Medical Examiner’s Testimony at 1 (defense “moves this Court for an order in limine excluding the testimony of [the] substitute medical examiner”); 6 (defense “respectfully moves this Court to exclude Dr. Lew’s testimony”). The motion at bar is not directed to other evidentiary artifacts of the autopsy, such as photographs.

⁴Perhaps Wigmore takes the contrary view, viz., the view that hearsay exceptions are, simply by virtue of their status as hearsay exceptions, also exceptions to the requirement of confrontation. See supra at 1-2, esp. n. 1. If so, present-day Confrontation Clause jurisprudence departs from Wigmore’s view.

⁵Centuries before the development of modern pathology, Shakespeare provided, in a case in which murder was suspected, a post-mortem examination that would surely have satisfied Banmah’s desire for practicality and common sense:

See, how the blood is settled in his face!

Oft have I seen a timely-parted ghost,

Of ashy semblance, meagre, pale, and bloodless,

Being all descended to the labouring heart;

Who in the conflict that it holds with death,

Attracts the same for aidance ‘gainst the enemy;

Which with the heart there cools, and ne’er returneth

To blush and beautify the cheek again.

But see, his face is black and full of blood;

His eye-balls further out than when he liv’d,

Staring full ghastly like a strangled man:

His hair uprear’d, his nostrils stretch’d with struggling;

His hands abroad display’d, as one that grasp’d

And tugg’d for life, and was by strength subdu’d.

Look on the sheets, his hair, you see, is sticking;

His well-proportion’d beard made rough and rugged,

Like to the summer’s corn by tempest lodg’d.

It cannot be but he was murdered here;

The least of all these signs were probable.

Wm. Shakespeare, The Second Part of Henry VI, Act III, sc. 2.

⁶If such diagrams, or the like, are offered as demonstrative evidence, they must be shown to fairly and accurately depict that which they purport to depict. See Fla. Stat. § 90.901. If they are to be used solely as illustrative aids, the substitute medical examiner must testify that they would assist him or her in the giving of testimony; in which case they can be used during testimony, but will not be received as evidence and will not go back to the jury room with the deliberating jury. See gen’ly Pierce v. State, 718 So. 2d 806 (Fla. 4th DCA 1997) [22 Fla. L. Weekly D1146a].

⁷For her opinions and conclusions about the cause and manner of death to be admissible at trial, Dr. Lew must be able to testify that she holds those opinions and conclusions to a reasonable medical probability. Williams v. State, 253 So. 3d 1211, 1214 (Fla. 4th DCA 2018) [43 Fla. L. Weekly D1950a] (citing Delap v. State, 440 So. 2d 1242, 1253 (Fla. 1983)). No doubt she will be pressed in voir dire as to her ability to assert the requisite degree of confidence in her opinions and conclusions without ever having seen the body of the decedent.