Critical Inquiry: A Tool for Protecting the Dissident Professor's Academic Freedom

01 Dec 2008 03:02pm Jennifer Elrod 

This comment concerns the Sixth Amendment Confrontation Clause and seeks to justify why courts consistently find an autopsy report not subject to the right to confrontation under the new test created by the Supreme Court in Crawford v. Washington. The current test turns on a statement’s classification as “testimonial”; testimonial statements require confrontation, but non- testimonial statements do not require confrontation. Unfortunately, the Court didn’t define “testimonial,” leading to four years of holdings by lower courts that were inconsistent – except with respect to autopsy reports, which all courts have characterized as non-testimonial.

This comment starts from that consensus, explaining why autopsy courts are not testimonial because the proper definition of testimonial depends on the involvement of adversarial government officials - officials with the responsibility of investigating and prosecuting crime - and an autopsy report does not qualify under that definition.

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