When I was a kid, I loved watching a show called Quincy, M.E. in which Jack Klugman played the Los Angeles medical examiner. Quincy routinely cracked the tough homicide cases that the detectives could not figure out. Quincy was the forerunner of the modern forensics shows, and while the plot of Quincy was sometimes far-fetched, the show pointed out the importance of modern, scientific forensic techniques. After all, in a homicide case, there are often no witnesses except maybe the defendant, whose explanation either might not be forthcoming or might be subject to question.

How a medical examiner reaches conclusions may be even more fascinating in real life than it was on Quincy. Because of the importance of medical examiner testimony in criminal cases, it is important for prosecutors and defense counsel to understand the role of a medical examiner. It is also vital to understand what information the medical examiner generated beyond the formal autopsy report.

By statute, each county has a medical examiner and can also have medical investigators who investigate cause of death under the supervision of the medical examiner. Medical investigators are also known as medicolegal death investigators. The statute also creates a position of the chief medical examiner for the state.¹ When an autopsy is ordered, it is completed at one of the regional forensic centers that have been established across the state.

Autopsy reports are public records.² There is even an online request form on the chief medical examiner’s website.³ (Law enforcement under certain circumstances can obtain orders to prevent the release of these public records if release would interfere with an investigation).

Although autopsy and toxicology reports are public records, the statute exempts other medical examiner records, such as the medical records of the deceased, law enforcement investigative reports and photographs and videos of the deceased.⁴ The fact that items are not public record does not mean that they are not subject to discovery in a criminal case. Prosecutors have a duty to obtain items that are material to the preparation of the defense or favorable to the accused.

Defense counsel need to make specific requests. It is not enough to ask for the medical examiner’s “file” — you might end up with just an autopsy report. Counsel cannot fulfill their obligations without knowing what to ask for. This is by no means a comprehensive list but is offered to help counsel formulate their requests. Just a few of the different types of information that can be found in the medical examiner’s files include:

• X-rays
• Call sheets that can document the circumstances of death and activities of the office — These can include initial observations made at the scene or hospital and law enforcement notes.
• Autopsy photos/videos
• Autopsy reports, both provisional and final
• Death investigator’s file — Because there are dedicated medicolegal investigators, there may be interviews, measurements or recordings that were done independently of the law enforcement investigation. These files are often kept separately.
• Communication logs — Many offices have extensive logs of communications between employees.
• Property/evidence logs
• Photos from crime scene (if relevant) from the death investigator — Again, these are often separate from the law enforcement photographs.
• Death certificates
• Affidavit of change to a death certificate
• Funeral home documents, cremation permits, etc.
• Hospital documents
• Alcohol/toxicology request forms
• Toxicology reports
• Specimen logs
• Medical records

Both prosecutors and defense counsel need to be familiar with these categories and ask for them specifically from the medical examiner’s office. Because some of these items are not deemed public records, it may be the case that they will not be released directly to defense counsel but must be obtained by the state. Defense counsel can also subpoena the nonpublic records using Rule 17 of the Tennessee Rules of Criminal Procedure.

Medical examiners are often willing to be interviewed by counsel before trial. The interview can also be a time to confirm that the parties have access to all relevant documents and information.

Medical examiners can also be hired by other parties to act as experts.⁵ Medical examination involves opinion testimony, and it is fascinating how often experts do not agree on material issues involving death investigations. (As I recall, Quincy’s boss always had the wrong opinion.) Anyone hiring an expert needs access to all the information used by the opposing expert, and you need to know how to ask for it.

An interesting evidence issue involving testimony about autopsies is that cases hold that it does not violate the Confrontation Clause to allow medical examiners to testify about autopsies and reports prepared by other medical examiners.⁶ This makes it even more important to have full access to and understanding of the information that was used in formulating the opinions that go in the autopsy report and are ultimately delivered at trial.

Prosecutors and defense counsel should never assume that an autopsy report is all the relevant information that is available from a medical examiner. It is important to start with the statute to understand what is available and not rely on how things are normally done. |||

WADE DAVIES is the managing partner at Ritchie, Davies, Johnson & Stovall PC in Knoxville. He is a 1993 graduate of the University of Tennessee College of Law. The majority of his practice has always been devoted to criminal defense. Davies is a member of the Tennessee Bar Journal Editorial Board.     

NOTES
1. Tenn. Code Ann. § 38-7-103
2. Tenn. Code Ann. § 38-7-110
3. https://stateoftennessee.formstack.com/forms/autopsy_report_request_form
4. Tenn. Code Ann. § 38-7-110
5. State v. Larkin, 443 S.W.3d 751 (Tenn. Crim. App. 2013).
6. State v. Hutchison, 482 S.W.3d 893 (Tenn. 2016). Compare Melendez-Diaz v. Massachusetts, 557 U.S. 305, 305, 129 S. Ct. 2527, 2529, 174 L.Ed.2d 314, 318 (2009)(admission of lab reports violated confrontation clause).