Evidence Exam Spring 2021

LAW 6330 (4 credits)

Professor Pedro A. Malavet
Spring 2021

Instructions

INSTRUCTIONS AT A GLANCE:

• Exam is twenty-three (23) pages long; twelve (12) True/False (40%) and one Essay (60%).
• Four-hour time limit. Examplify will allow you a single, uninterrupted, four hour time window to complete the examination.
• The Office of Student Affairs will electronically distribute, proctor and collect the answers to this examination. You must follow all of their instructions.
• The entire exam answer will be submitted through the Examplify system.
• Essay Length Limit: 18,000 characters all-inclusive (including spaces and carriage returns).
• No abbreviations or acronyms of any kind, other than FRE and TOMA.
• Use proper names. Do not substitute the names of persons with generic labels like “appellant” or “defendant”.
• Essay instructed result only. “Dissents” fail.
• This exam is fully open-book. You will not be locked out of your computer by Examplify.
• By submitting your exam, you certify that your work is original and that you received no assistance from another person in any part of your answer(s).
• Penalty for each minor rules violations, except length: 10% of part points.
• Penalty for major violations is failure and referral for discipline.

Four hour time limit. Examplify will allow you one single continuous four-hour window to complete the exam.

Electronic Exam Taking. You must receive, complete and upload your answer to my examination electronically due to the COVID-19 Pandemic emergency. The Office of Student Affairs has recommended the Examplify platform and that is what we will use.

Honor/Conduct Code. You are bound by University Student Code of Conduct, the College of Law Honor Code and my rules. By submitting your examination for grading you certify that you have complied with all applicable instructions and rules, in particular that your work is original and that you received no assistance from another person in any part of your answer(s), and further that you provided no assistance or information about the examination, including but not limited to access codes and user identifications, to any other person, in particular any member of this class who had yet to submit their completed examination. Violations of any applicable rule(s), should be reported to me or to pertinent authorities preferably before or during the examination. Serious violations of these rules shall result in a failing grade and in my referring the matter to the Honor Committee or to pertinent college or university conduct authorities. Less serious violations may result in a reduction in your final grade.

Essay Character Limit: 18,000 all-inclusive (including spaces and carriage returns). The answer shall be limited to 1800 characters (including spaces and carriage returns) per page-equivalent. The exam will adopt a ten-page-equivalent limit: 1800 x 10 = 18,000 characters. Each student is responsible for keeping track of answer length. The Examplify window displays essay answer character length at the top of the screen. You may also use the length command to check character length. The penalty for exceeding the character limit will be a deduction from your essay score of a percentage equal to the percentage by which you exceeded the character limit. I will also not award points for discussion beyond the length limit.

Instructed Result. You must reach and fully justify the instructed result in order to earn any credit for your answer. “Dissents” or “concurrences” fail.

Exam Accommodation. If you have received an accommodation that requires variation from these instructions, you must follow the instructions provided by the Office of Student Affairs. Exam accommodations must be handled through the Office of Student Affairs in order to maintain the anonymity of the grading process as well as to ensure that university policies and resources are properly applied to each individual situation. While the Office of Student Affairs may consult with me as necessary and as they deem advisable, we must all ensure that accommodation policies are properly and fully applied while at the same time the anonymous grading of the exam mandated by Levin College of Law rules is maintained.

Exam Review. You are welcome to ask to see your marked exam after the start of the spring semester. Additionally, if you wish to discuss the exam with me, that type of exam review will start after I post the feedback memorandum on the course website and Canvas page on Thursday, September 23, 2021. Instructions for the review process and the dates when I will be available for it will be included in the memorandum. I will post individual exams through a secure Canvas assignment.

GOOD LUCK!

GENERAL INSTRUCTIONS FOR PART I

             Select the best answer to the question presented. In this section, do not look for “perfect” answers, just the most correct one among the two alternatives available to you, in light of the question or statement presented, viewed in the context of the federal rules of evidence and related doctrines and caselaw as we discussed them in class. You are bound by the restyled version of the Federal Rules of Evidence that became effective December 1, 2011, as amended.No explanations are required or allowed. Your answer will either be correct or incorrect, there will be no partial credit for incorrect answers. Circle the appropriate word or letter that you select as your response.

            Do not assume any facts not given to you. While you are expected to draw reasonable conclusions from the facts given, you should not assume facts. In this section of the exam, “missing facts” suggest three possibilities: (1) you need to read the question again, i.e., “it’s in there somewhere,” (2) the fact is not necessary to the resolution of the question, or (3) I made a mistake and you may need to alert me to it (if you are convinced that this is what is going on, do not be afraid to ask the question of the proctors).

            Do not look for issues that are not relevant to answering the question. The question asked determines the issues raised, read it carefully and answer the question I asked, with the best possible response among the alternatives given.

            Applicable Rules. Assume that the applicable rules of evidence are the Federal Rules of Evidence in the restyled form that became effective December 1, 2011, as amended, together with the applicable common law, statutory, and constitutional rules, doctrines, and caselaw as you studied them in your Spring 2021 Evidence course.

PART I: TRUE OR FALSE (40%)

In this section, you must select either “True” or “False.” The statement, as drafted, when read in the context of a Federal Trial, is either True or False.

1. The law of evidence generally proceeds on the basis that the jury will follow the court’s instructions where those instructions are clear and the circumstances are such that the jury can reasonably be expected to follow them.
   
   True                      False
   
   
2. During civil commitment proceedings against Oral Roberts University senior William Jones, his parents, who are trying to institutionalize him in a psychiatric treatment facility, present testimony that he told several people the previous week: “I am Noah, Joakim Noah, Two-Time Gator National Championship Winner.” Given the definition of hearsay of Federal Rule of Evidence 801(a), (b) and (c), this evidence is hearsay.
   
   True                      False
   
   
3. In a criminal trial for possession with intent to distribute heroin, DEA agent Mary Johnson identified a bag of heroin powder offered by the prosecution as evidence seized from the only defendant’s home. During agent Johnson’s testimony, some heroin powder came out of the bag and fell on the witness stand (the bag had lost part of its plastic seal while in transit via FEDEX, and some powder came out as she handled it). While testifying for the government, the next witness, Timothy Leary, gathered up some of the heroin powder with his finger and swallowed it, in view of the jury and the presiding judge. The court must grant the defense’s objection seeking a ruling that witness Leary is unqualified to testify and his entire testimony should be stricken from the record.  
   
   True                      False
   
   
4. Given the definition of hearsay of FRE 801(a), (b) and (c), when offered as proof that defendant Donald ‘Boon’ Schoenstein is guilty of Rioting, testimony that in the middle of a melee, his girlfriend Katy Faver, after observing Schoenstein running South on a grassy area of the Plaza of the Americas heading towards Union Road and Turlington Plaza on the campus of the University of Florida, said to approaching police officers —“Officers, officers, I saw the whole thing, he went that way, towards University Avenue” while pointing to the North towards Library West, is hearsay.
   
   True                      False
   
   
5. Donna Moore is charged with conspiracy to distribute cocaine. At her trial the prosecution presents the testimony of undercover police officer Smith who arranged to make a purchase of cocaine from her. He testifies that they agreed to meet at the McDonald’s on University Avenue near the Oaks Mall in Gainesville at 3:00 p.m. on Tuesday, May 14, 2019, where Donna had agreed to deliver four ounces of cocaine for which Smith would pay $10,000.00 in cash. Donna said that she would have the cocaine in the trunk of her car, and that Smith should have a bag with the money in it in the trunk of his car. Donna is at the McDonald’s at 3:00 p.m. that Tuesday and she is arrested by other officers in the parking lot after Smith gives her the bag containing the money and she opens her car trunk to place it in it, next to a bag that was already stored there. However, the bag that was in Donna’s car did not contain cocaine. In fact, no cocaine was found on Donna when she was searched pursuant to her arrest, nor in her car or in her house which were searched pursuant to valid warrants. During her case in chief Donna admits that she told Smith that she would sell him cocaine as he described, but she added that she intended to steal the money by giving Smith a fake bag and escaping in her car. During its case in rebuttal, the prosecution offers the testimony of Donna’s former boyfriend John, who testifies that he saw her sell cocaine to two people in the weeks before her arrest. One sale was for four ounces of cocaine and the other for two ounces. Donna’s lawyer objects: “This is character assassination, your Honor!” The court may overrule the objection.
   
   True                      False
   
   
6. After certain evidence is found to be relevant, the rules do not allow it to be excluded when its probative value is substantially outweighed by a danger of wasting time.
   
   True                      False
   
   
7. In a criminal case for assault, during his case-in-chief, defendant Don offers the testimony of William that Victim Vince is a “violent, fight-picking fella.” During its case-in-rebuttal, the prosecution offers the testimony of Rabbi Wolff that alleged victim Vince was a “peaceful, and non-violent man.” The prosecution’s rebuttal may be admitted.
   
   True                      False
   
   
8. Following the loss in the NCAA Basketball Tournament Round of 64, Virginia Tech fan John Smith drowns his sorrows about his team’s defeat at several Indianapolis bars (unwisely open during the pandemic) as he walks back to his car after the game. He then meets his pal George Jones in the parking lot and gives him a ride back to their rental house at the Brickyard Crossing golf course. During that trip, they are involved in an accident that seriously injures both Jones and Smith. Jones sues driver Smith to recover damages. During the defense case-in-chief Smith offers, as proof that Jones assumed the risk of an accident on account of an impaired driver, his testimony that “I told George before he got in the car that I really should not have had those four Bombay Safire martinis half an hour ago.” Given the definition of hearsay of Rule 801(a), (b) and (c), this evidence is not hearsay.
   
   True                      False
   
   
9. In a criminal prosecution for sexual assault, evidence of the defendant’s commission of any other sexual assault may be admitted to prove that on a particular occasion the defendant acted in accordance with the character or trait suggested by the other offense(s).
   
   True                      False
   
   
10. Defendant, Dr. Buckaroo Banzai, famed neurosurgeon, particle physicist, rock-star and law professor, is charged with criminal destruction of property. Dr. John Whorfin is called as a witness by the defense in this criminal trial, with the expectation that he will testify that he, not the defendant, destroyed the valuable, highly-modified Ford F-150, by setting it on fire. Dr. Whorfin is a resident of the New Jersey Hospital for the Criminally Insane at Grover’s Mill. Prior to this offer of testimony, in separate proceedings alleging that he had murdered a hospital orderly during an escape attempt, Whorfin was found to be criminally insane and incompetent to stand trial. Among certain other personal quirks, he has publicly stated that he is a red Lectroid from Planet Ten and that he must return to the Eighth Dimension to rescue his army, in order to conquer the universe, starting with Planet Ten. The government objects that Whorfin is incompetent to testify. The court cannot find Whorfin competent to testify.
    
    True                      False
    
    
11. Jordan Belfort enters into a settlement of a civil action filed by the Attorney General for the State of New York claiming that he violated state securities regulations when he defrauded investors while acting as their stockbroker. Belfort agrees to repay each investor 70% of their original investment and to refrain from doing business in the State of New York for a period of no less than ten years. The state then agrees to dismiss its suit. During the negotiations, Mr. Belfort admits that he used the invested funds to cover personal expenses. The U.S. Government later indicts Mr. Belfort for securities fraud and is prosecuting him. At trial, the government seeks to introduce Belfort’s admission about using the funds for personal expenses. Under Federal Rule of Evidence 408 this evidence is admissible because the privilege created by that rule does not apply in this situation.
    
    True                      False
    
    
12. In a criminal prosecution for sexual assault, defendant Joseph is pursuing a consent defense. Joseph offers the testimony of witness Matthew that victim Mary “is sexually very active” and “known as an easy mark.” The prosecution objects to this testimony. The court should overrule the objection. 
    
    True                      False
    
    
    

PART II: ESSAY PROBLEM (60%)

GENERAL INSTRUCTIONS FOR PART II

    Do not assume any facts not given to you. While you are expected to draw reasonable conclusions from the facts given, you should not assume facts. In this section of the exam, “missing facts” suggest three possibilities: (1) you need to read the question again, i.e., “it’s in there somewhere,” (2) I made a mistake and you may need to alert me to it (if you are convinced that this is what is going on, do not be afraid to ask the question), or (3) you need to indicate that you need to establish certain facts in order to provide a complete opinion. In this section of the exam, identifying missing facts that are necessary to a complete resolution of the issue may be precisely what you need to do in order to provide a proper response.
            Do not look for issues that are not relevant to completing the exercise as instructed. The instructions determine the pertinent issues and how they must be handled in a carefully-crafted essay. Read them carefully and write accordingly. Evidence is a broad and complex course, I have crafted the issues narrowly, do not waste your time covering issues that the fact-pattern and your instructions as to the mandated result do not require you to address or resolve. No credit will be awarded for discussion of matters not relevant to the resolution of the problem.
            Applicable Rules. Assume that the applicable rules of evidence are the Federal Rules of Evidence in their restyled form that became effective December 1, 2011, as amended, together with the applicable common law, statutory, and constitutional rules, doctrines, and caselaw as you studied them in your Spring 2021 Evidence course. Any additional sources of law will be expressly noted in the exam fact-pattern and accompanying statutory supplement, if any.
            Citations. Since this is an open-book exam, citation should be made to the appropriate rule, especially the Federal Rules of Evidence, statutory or Constitutional provision, etc. Case citations will be judged on a “close-enough” basis. Please keep in mind that my annotated versions of the rules are helpful shorthand references.
     Instructed Result. You must reach and fully justify the instructed result in order to earn any credit for your answer. “Dissents” and “concurrences” fail.
     Limited Space. Please keep in mind that you are bound by the character length limit in Examplify.
     No Abbreviations or Acronyms. You may not use any abbreviations or acronyms other than FRE or TOMA in your essay. You must use the proper names of the persons mentioned in the fact-patter, you may not substitute titles such as “defendant” or “appellant” for the proper names. You may use just the last name to refer to teach person.

John Brown v. United States

District of Columbia Court of Appeals
On Appeal from the District of Columbia Superior Court

Judges: Before John R. FISHER and Catharine Friend EASTERLY, Associate Judges, and Neal E. KRAVITZ, Associate Judge, Superior Court of the District of Columbia (Sitting by designation pursuant to D.C. Code § 11-707(a) (2012 Repl.).

Opinionby: KRAVITZ

PROCEDURAL POSTURE ON APPEAL

A Superior Court jury found Mr. Brown guilty of first-degree premeditated murder while armed and related weapons offenses in the November 14, 2015 shooting death of Toshiro Sakai. The government’s theory at trial was that Mr. Brown killed Mr. Sakai, his best friend, because he thought Mr. Sakai was cheating him out of his fair share of the proceeds of a drug dealing business the two men operated together. Mr. Brown argued that he acted in self-defense, testifying that he shot Mr. Sakai at close range only after Mr. Sakai rushed him and tried to wrestle away his gun in an argument over the money.

The government prevailed at trial largely on the strength of data obtained from two cell phones seized from Mr. Brown on the day after the shooting and the testimony of the Chief Medical Examiner about the results of an autopsy performed by one of his deputies. Police obtained the cell phone data pursuant to Superior Court search warrants that authorized a review of the entire contents of Mr. Brown’s phones; the data included highly incriminating records of internet search inquiries made by Mr. Brown in the days leading up to the homicide (“Are you capable of killing your best friend?” “How does it feel when you kill someone for the first time?” “Shot placement for instant kill?”) and enabled the government to paint a compelling picture of Mr. Brown’s premeditation and deliberation. The Chief Medical Examiner’s testimony contradicted Mr. Brown’s claims about the way the shooting unfolded with detailed information about the gunshot wounds described in the autopsy report, including the absence of soot and stippling the government argued would have been observed at the site of the wounds had the shots been fired from within inches of Mr. Sakai’s body.

On appeal, Mr. Brown contends that the trial judge committed reversible error in denying his pretrial motions to suppress the data obtained from his cell phones and to exclude the Chief Medical Examiner’s testimony about the results of the autopsy. Mr. Brown argues that the search warrants were overbroad, lacking in particularity, and almost entirely unsupported by probable cause and were thus issued in violation of the Warrant Clause of the Fourth Amendment. He argues that the testimony of the Chief Medical Examiner conveyed testimonial hearsay statements of the deputy medical examiner who performed the autopsy and was thus presented to the jury in violation of the Confrontation Clause of the Sixth Amendment.

Both constitutional claims implicate important and recurring aspects of the criminal process in the District of Columbia. Virtually everyone in the District now uses a cell phone —typically a modern smart phone capable of holding an extraordinary amount of personal information related to the user and/or owner of the device. Given the trove of information stored on many cell phones and the Supreme Court’s ruling in Riley v. California, 573 U.S. 373, 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014), that police generally must obtain a search warrant before they may examine the contents of a cell phone, search warrant requests seeking access to cell phone data have become a common feature of law enforcement investigations in the District, with warrant applications presented to the Superior Court by police in large numbers. At the same time, turnover and other personnel challenges in the Office of the Chief Medical Examiner have, with some frequency, led the government in homicide trials to offer testimony relating to the cause and manner of death from forensic pathologists who neither conducted nor attended the autopsies on which their testimony is based.

Yet despite the ubiquity of cell phones and cell phone search warrants, this is the first case in which this court has been called on to analyze the validity of a cell phone search warrant under the Warrant Clause. And although several of our previous decisions have addressed Confrontation Clause challenges to surrogate medical examiner testimony under the plain error standard, see, e.g., Sheffield v. United States, 111 A.3d 611, 623 (D.C. 2015); Euceda v. United States, 66 A.3d 994, 1012 (D.C. 2013), this is the first case in which we have been required to consider the constitutionality of such testimony on the merits and, in particular, to determine whether autopsy records created and maintained within the Office of the Chief Medical Examiner contain “testimonial” hearsay statements subject to the Confrontation Clause under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), and its progeny. See Sheffield, 111 A.3d at 623 (“[N]either this court nor the Supreme Court has decided whether autopsy reports are testimonial[.]”).

We conclude that Mr. Brown has established violations of his rights under both the Fourth and the Sixth Amendments. Police sought search warrants that authorized an unlimited review of the contents of his cell phones for “any evidence” of murder even though the warrants were supported by affidavits that established probable cause for only three narrow and discrete items of data. The warrants were thus overbroad and lacking in probable cause and particularity, and the warrant judge should not have issued them. The warrants’ deficiencies, moreover, were so extreme and apparent that a reasonably well-trained police officer, with reasonable knowledge of what the law prohibits, would have known the warrants were invalid notwithstanding their approval by a judge. The good faith exception to the exclusionary rule therefore does not apply, and the trial judge should have granted Mr. Brown’s motion to suppress all of the data collected from both phones. Separately, the Chief Medical Examiner’s testimony plainly transmitted to the jury the findings of the deputy medical examiner who conducted the autopsy on Mr. Sakai’s remains. Because those findings, set forth in the autopsy report and other materials maintained in the autopsy file, were made in the context of an ongoing police investigation of a homicide, the findings were “testimonial” and their communication to the jury through the Chief Medical Examiner’s testimony violated the Confrontation Clause. Both constitutional errors unfairly prejudiced Mr. Brown at trial, and in combination they cannot be deemed harmless beyond a reasonable doubt.

The Fourth Amendment Questions will not be addressed here.

[Although the opinion brought a smile a to my face when it cited Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963), an eminently readable opinion, this is an evidence exam and you need not address the suppression questions at all.]

The Chief Medical Examiner’s Surrogate Expert Testimony

A. The Homicide Investigation and the Autopsy Performed by the Deputy Medical Examiner

A brief summary of the police investigation leading to the autopsy performed on Mr. Sakai’s remains is essential to our analysis under the Confrontation Clause.

A Metropolitan Police Department patrol officer was the first to respond to the 911 call from Mr. Brown’s mother on November 15, 2015. Five homicide detectives and four crime scene search officers followed soon thereafter, and all entered Apt. 23 at 2958 Second Street, S.E. and observed Mr. Sakai’s body on the living room floor. Bloodstains surrounded the body, and five spent cartridge casings and an unfired bullet were nearby.

A detective directed the crime scene search officers to collect and document evidence of the apparent homicide. The crime scene officers took photographs of the apartment and Mr. Sakai’s body, swabbed surfaces for DNA and fingerprints, and collected the cartridge casings and unfired bullet —all destined for forensic testing at the Department of Forensic Sciences. The detectives took witness statements from Mr. Brown, his mother, and his cousin.

Police promptly notified the Office of the Chief Medical Examiner (OCME) of the discovery of Mr. Sakai’s body. An OCME investigator went to the apartment and inspected Mr. Sakai’s remains, recording the way “the body was found on the scene, [the] injuries [on] the body, the level of rigor mortis; and the level of lividity, body temperature, [and] ambient temperature.” OCME officials later transported Mr. Sakai’s remains to OCME for an autopsy.

Dr. Merill C. Post, a deputy medical examiner at OCME, performed an autopsy on Mr. Sakai’s remains on November 16, 2015. To document the autopsy, Dr. Post made contemporaneous handwritten notes and diagrams memorializing his own observations and directed that photographs of the body be taken at each stage of the examination. Dr. Post subsequently prepared a formal autopsy report in which he detailed the condition in which the body was received at OCME; the procedures he followed in performing the autopsy; the physical evidence, including clothing and bullets, recovered during the examination; the location, dimensions, and path of each of four gunshot wounds suffered by Mr. Sakai; and the injuries and amount of blood loss associated with each of those wounds. Based on his findings, Dr. Post concluded in his report that the cause of death was multiple gunshot wounds and that the manner of death was homicide. All of these records of the autopsy were placed in an OCME file made specifically for the case.

One of the homicide detectives assigned to the investigation attended the autopsy. The detective was present throughout the examination and took possession of the clothing and bullets recovered during the procedure. Following the autopsy, the detective interviewed Dr. Post about his findings and conclusions.

By contrast, Dr. Michael Rodgers, the Chief Medical Examiner, did not attend any part of the autopsy or have any involvement in the examination. Dr. Rodgers did sign the autopsy report in February 2016 as a reviewing official, but he took no notes in the case, did not otherwise participate in the drafting or review of the report, and made no edits to it.

B. Mr. Brown’s Motion to Exclude the Chief Medical Examiner’s Surrogate Expert Testimony

The government notified Mr. Brown’s counsel a few weeks before trial that it intended to call Dr. Rodgers instead of Dr. Post to testify as an expert witness about the results of the autopsy. As government counsel later explained at a pretrial hearing, Dr. Post was no longer employed by OCME and was working in Florida by the time of trial. After speaking with Dr. Post and Dr. Rodgers , the government decided to call Dr. Rodgers , who was still employed by OCME as Chief Medical Examiner.

Mr. Brown filed a motion in limine to exclude “the autopsy report and any attendant documents, as well as any testimony repeating the findings of these documents or the oral statements of the medical examiner.” Mr. Brown argued in his written motion that any testimony by Dr. Rodgers “based, in any way, on the notes, findings, and/or conclusions of Dr. Post would be unconfronted testimonial hearsay offered in violation of the Confrontation Clause of the Sixth Amendment.”

The trial judge held a hearing on Mr. Brown’s motion shortly before trial. The government opposed the motion, stating that Dr. Rodgers’ testimony would be based only on the diagrams and photographs created during the autopsy and not on the contents of the autopsy report or any other writings generated by Dr. Post. Mr. Brown’s counsel argued in response that Dr. Rodgers had reviewed the autopsy report and the diagrams and photographs and that “all of those things will be the basis of his testimony and will adhere to hearsay.”

The trial judge denied Mr. Brown’s motion, explaining that Dr. Rodgers would be “relying on the type of information that expert witnesses rely on when they formulate an opinion and provide testimony at trial.”

C. The Chief Medical Examiner’s Testimony at Trial

Despite its pretrial assurances, the government elicited testimony from Dr. Rodgers at trial that far exceeded whatever independent opinions Dr. Rodgers might have held based solely on a review of the autopsy diagrams and photographs. The government sought repeatedly to bolster Dr. Rodgers’ credibility before the jury by presenting his opinions as consistent with Dr. Post’s findings and conclusions and as supported by the entirety of the autopsy records of the case. In the process, Dr. Rodgers directly told the jury of several specific findings and conclusions made by Dr. Post and indirectly suggested many others.

The government began by having Dr. Rodgers confirm he had reviewed the complete OCME file in the case, including the autopsy report, notes, and diagrams prepared by Dr. Post and the photographs taken during the examination. Government counsel then asked Dr. Rodgers to state the conclusions reached by Dr. Post at the time of the autopsy and to tell the jury whether he agreed with them. Dr. Rodgers summarized Dr. Post’s principal conclusions from the autopsy report —that the cause of death was multiple gunshot wounds and the manner of death a homicide— and stated his full agreement with those conclusions.

The discussion then moved on to the four gunshot wounds suffered by Mr. Sakai. The government elicited from Dr. Rodgers that one of the diagrams drawn by Dr. Post during the autopsy accurately reflected the locations of the gunshot wounds shown in the photographs. The diagram, one of three appended to the autopsy report, showed the location of each entrance and exit wound on the front and back of Mr. Sakai’s body and included Dr. Post’s handwritten notes of measurements taken during the autopsy to memorialize the precise size and distance of each wound from the midline or other part of the body. Government counsel then gave Dr. Rodgers a blank sheet of paper and asked him to “more or less recreate” Dr. Post’s diagram in front of the jury. When Dr. Rodgers agreed to undertake the task, government counsel asked him if he needed to see the autopsy report as he re-drew Dr. Post’s diagram and answered questions about the gunshot wounds. Dr. Rodgers stated that, yes, he did need the autopsy report to be able to draw a copy of Dr. Post’s diagram, and government counsel marked the report (which included Dr. Post’s diagram) as an exhibit and gave it to Dr. Rodgers on the witness stand.

Dr. Rodgers proceeded to describe the entrance location, the trajectory inside the body, and, where applicable, the exit location of each of the four gunshot wounds. He told the jury that bullets entered Mr. Sakai’s body through the left cheek, left shoulder, left lower abdomen, and right lower back, with the two entering through the left shoulder and right lower back piercing the heart, lungs, and other vital organs and likely causing Mr. Sakai’s death. With regard to one of the gunshot wounds, Dr. Rodgers stated that he needed to “refer to the report” before he could answer a question about the wound’s path inside the body.

Most of the government’s questioning relating to the gunshot wounds, however, was focused on whether soot or stippling was found at any of the wound sites. Dr. Rodgers described soot as burnt gunpowder that is propelled out of a firearm along with a bullet and is often deposited on the skin of the person shot when the firearm is fired from less than six to eight inches away. He described stippling as unburnt gunpowder that is also propelled out of a firearm and can cause abrasions to the skin when the firearm is fired from within twelve to eighteen inches of the person shot. The presence or absence of soot and stippling at the sites of the gunshot wounds was critical to the case, given Mr. Brown’s defense that he fired at Mr. Sakai at close range only after Mr. Sakai rushed him and tried to take away his gun.

The government questioned Dr. Rodgers in detail about the four gunshot wounds to establish that no soot or stippling was found at the entrance location of any of the wounds. As worded, the government’s questions directed Dr. Rodgers to base his testimony about the presence or absence of soot and stippling on his review of all of the materials in the autopsy file, including the photographs and the autopsy report, diagrams, and notes authored by Dr. Post. Government counsel did not simply ask Dr. Rodgers whether he was able to see soot or stippling in the photographs of the gunshot wounds (which, for clarity, Dr. Rodgers referred to as Wounds A, B, C, and D). Instead, the government used passive-voice questions to inquire, as to each of the wounds, whether, based on Dr. Rodgers’ review of the entire file, soot or stippling was “observed”:

• Q: Was there soot observed in the entrance or exit wounds that are depicted before you in Government’s Exhibit Number 24 [a photograph of Wound A]?
• DEFENSE COUNSEL: Objection.
• THE COURT: Overruled.
• A: No.
• . . .
• Q: Based on your review of not only the photographs that have been put before you as to those wounds that you designated as A, but the entire file as well, was there stippling observed as to those wounds?
• A: No.
• . . .
• Q: Now, is there soot observed on [Wound B]?
• A: No.
• Q: I guess I should say was there soot observed on [Wound B]?
• A: No.
• Q: And was there stippling observed on that wound?
• A: No.
• . . .
• Q: And looking at the photograph there, is there soot or stippling observed on [Wound C]?
• A: No.
• Q: Based on your review of the file, the photographs, the diagram and notes and everything observed in the file, was there soot or stippling observed on that wound in an unwashed condition?
• A: No. . . .
• Q: And was there soot or stippling observed in the unclean observation —in the observation of [Wound D] uncleaned based on your review of the file?
• A: No.

 Dr. Rodgers’ responses to the government’s initial questions about Dr. Post’s ultimate conclusions, moreover, were not the only point at which Dr. Rodgers referred directly to information in the autopsy report. As one additional example, when government counsel asked Dr. Rodgers to describe any scars found on Mr. Sakai’s body, Dr. Rodgers stated that he needed to refer to the report before he could answer the question. He then reviewed the relevant portion of the autopsy report and testified, contrary to Mr. Brown’s claim of self-defense, that all of the scars on Mr. Sakai’s body were healed, with none being a fresh abrasion or bruise that might have resulted from a scuffle.

Dr. Rodgers also gave testimony about several other aspects of the autopsy that appear to have been based on information in the autopsy report and other materials in the OCME file. He told the jury about the recovery of bullets from Mr. Sakai’s body and clothing during the autopsy, about the precise volume of blood found pooled in Mr. Sakai’s chest and abdomen at the time of the autopsy, and about the viewing of Mr. Sakai’s clothing in the course of the examination. No suggestion was or could have been made that any of this testimony was based on something other than Dr. Post’s writings.

Dr. Rodgers did testify to two opinions that were not included in the autopsy report. He told the jury that the steep upward path of the bullet entering through the right lower back was consistent with Mr. Sakai “being —or his chest at the very least being parallel to the floor” when that shot struck him. And he said there was “a possibility” that pink discoloration of the tissue beneath the entrance wound on the left lower abdomen indicated that the muzzle of the gun was “flush up against” Mr. Sakai’s belly at the time the shot was fired.

The government formally moved the autopsy photographs into evidence. Mr. Brown raised no further objection beyond his pretrial motion in limine, and the photographs were admitted. However, despite the many direct and indirect references in Dr. Rodgers’ testimony to the autopsy report and other materials in the OCME file, the government never moved the autopsy report, notes, or diagrams into evidence, and none of those items was admitted.

Analysis of the Medical Examiner’s Trial Testimony

[The] “dispositive question” whenever the government seeks to present an expert witness to testify about a forensic examination the expert did not perform or observe is whether the expert will relay testimonial hearsay statements of others regarding the examination. Young v. United States, 63 A.3d 1033, 1039 (D.C. 2013), at 1044. This is a question of law, subject to our de novo review on appeal.3 Id.; Thomas v. United States, 978 A.2d 1211, 1225 (D.C. 2009). The question has two parts: (1) whether the expert transmitted hearsay; and (2) if so, whether that hearsay was testimonial. Young, 63 A.3d at 1044.

We begin by addressing whether Dr. Rodgers transmitted hearsay statements of Dr. Post.

“An out-of-court statement offered in evidence to prove the truth of the matter asserted is hearsay whether the statement is quoted verbatim or conveyed only in substance; [and] whether it is relayed explicitly or merely implied[.]”Young, 63 A.3d at 1044 (footnote omitted). The fact “that a written forensic analysis report was not formally entered into evidence, or that [the testifying expert] did not read verbatim from any such report, is [therefore] not determinative.” Id. Instead, “[t]he appropriate question is whether the substance of the testimonial materials is shared with the fact-finder to suggest its truth, without the report’s author being available for cross-examination.” Id. (quoting David H. Kaye, David E. Bernstein & Jennifer L. Mnookin, The New Wigmore: Expert Evidence § 4.10.2, at 200 (2d ed. 2011)); see also Gardner v. United States, 999 A.2d 55, 61 (D.C. 2010) (“[A]n expert’s use of testimonial hearsay is a matter of degree. The question is whether the expert is, in essence, giving an independent judgment or merely acting as a transmitter for testimonial hearsay.” (emphasis and internal quotation marks omitted)).

In its arguments to this court, the government departs from its pretrial promise that Dr. Rodgers’ testimony would be based on the autopsy photographs and diagrams and asserts instead that Dr. Rodgers based his testimony primarily on an independent review of the photographs alone. The government pairs this assertion with an argument that autopsy photographs are not testimonial.

The record contradicts the government’s assertion about the nature of Dr. Rodgers’ testimony at trial. Even though the photographs were the only items from the OCME file formally admitted in evidence, the government and Dr. Rodgers made clear to the jury throughout Dr. Rodgers’ testimony that his opinions were based on all of the materials in the file, including the autopsy report, diagrams, and notes written by Dr. Post.

More important, Dr. Rodgers’ testimony was not merely “based on” Dr. Post’s hearsay statements; the testimony clearly conveyed the substance of those statements to the jury. The government’s questions repeatedly indicated that Dr. Rodgers’ opinions came from the materials in the OCME file and were consistent with the findings and conclusions reached by Dr. Post. Government counsel provided Dr. Rodgers a copy of Dr. Post’s autopsy report to review on the witness stand. Dr. Rodgers directly recited Dr. Post’s final conclusions from the report and stated his agreement with them. He said on several occasions that he needed to refer back to the report before he could answer a question. He did his best to recreate Dr. Post’s diagram of the four bullet wounds by drawing a copy of the diagram in front of the jury. He provided specifics about the recovery of bullets and clothing during the autopsy and the precise volume of blood pooled inside Mr. Sakai’s chest and abdomen —information that surely came from the autopsy report and notes. And as detailed in the testimony excerpted above, he answered the government’s passive-voice questions about soot and stippling in a way that clearly, if indirectly, communicated to the jury Dr. Post’s first-hand observations, set forth in the autopsy report, that no soot or stippling was observed at the time of the autopsy around the four entrance wounds on Mr. Sakai’s body.

Thus, although a small part of Dr. Rodgers’ testimony was grounded in his own independent opinions —that Mr. Sakai’s chest was parallel to the floor when a bullet entered his right lower back, and that there was a possible contact wound to Mr. Sakai’s belly— the great majority of Dr. Rodgers’ testimony was focused on transmitting the substance of the findings and conclusions made by Dr. Post during the autopsy. The government presented Dr. Rodgers to the jury far more as a “transmitter” of the hearsay in the autopsy report and other OCME materials than as an expert communicating his own independent judgment. See Gardner, 999 A.2d at 61.

Moreover, virtually all of the materials in the OCME file contained hearsay. The handwritten notes Dr. Post took during the autopsy and the formal typewritten  report he drafted later both consisted entirely of Dr. Post’s out-of-court statements describing the examination and memorializing his observations, findings, and conclusions. And the diagrams Dr. Post prepared during the autopsy included his handwritten notations specifying, among other things, the exact locations, sizes, and directions of the four gunshot wounds.Finally, … the trial judge did not instruct the jury, as urged by our precedents, that the hearsay bases of Dr. Rodgers’ opinions were being presented only for the limited purpose of assisting the jury in assessing the reasonableness of the opinions and were not to be considered as substantive evidence. See In re Amey, 40 A.3d 902, 911 (D.C. 2012); In re Melton, 597 A.2d 892, 906-07 (D.C. 1991) (en banc). As a matter of law, therefore, all of the hearsay statements in the OCME materials [relayed] to the jury through Dr. Rodgers’ testimony came in as substantive evidence, admitted as proof of the truth of the matters asserted therein by Dr. Post. See Jenkins, 75 A.3d at 190-91 [Jenkins v. United States, 75 A.3d 174, 180 (D.C. 2013)], Young, 63 A.3d at 1046-47;Gardner, 999 A.2d at 60-61.

Statute and Jury Instruction

DC Code § 22-2101. Murder in the first degree
—Purposeful killing; killing while perpetrating certain crimes.
Whoever, being of sound memory and discretion, kills another purposely, either of deliberate and premeditated malice or by means of poison, or in perpetrating or attempting to perpetrate an offense punishable by imprisonment in the penitentiary, or without purpose to do so kills another in perpetrating or in attempting to perpetrate any arson, as defined in § 22-301 or § 22-302, first degree sexual abuse, first degree child sexual abuse, first degree cruelty to children, mayhem, robbery, or kidnaping, or in perpetrating or attempting to perpetrate any housebreaking while armed with or using a dangerous weapon, or in perpetrating or attempting to perpetrate a felony involving a controlled substance, is guilty of murder in the first degree. For purposes of imprisonment following revocation of release authorized by § 24-403.01(b)(7), murder in the first degree is a Class A felony.

Criminal Jury Instructions for DC Instruction 4.201 HOMICIDE—FIRST DEGREE PREMEDITATED MURDER AND SECOND DEGREE MURDER (NO JUSTIFICATION OR MITIGATION GENERATED)
[Name of defendant] is charged with first degree murder. I am going to instruct you on this charge and also on the lesser included offense of second degree murder. After I give you the elements of these crimes, I will tell you in what order you should consider them.

A. FIRST DEGREE MURDER
The elements of first degree premeditated murder, each of which the government must prove beyond a reasonable doubt, are that:

• [Name of defendant] caused the death of [name of decedent];
• [Name of defendant] intended to kill [name of decedent] [another person];
• S/he did so after premeditation; and
• S/he did so after deliberation.

Premeditation means forming an intent to kill. To premeditate is to give thought, before acting, to taking a human life, and then to reach a definite decision to kill.
Deliberation means considering and reflecting on the intent to kill, turning it over in the mind, giving it second thought.

Premeditation —the formation of an intent to kill— may be instantaneous, as quick as thought itself. Deliberation, however, requires some time to have elapsed between formation of this intent and the fatal act, within which one pauses and actually gives second thought and consideration to the intended act. The law does not require that deliberation take any particular amount of time. It can be days, hours or minutes, or it can be as brief as a few seconds. It varies according to the circumstances of each case. It is the fact of deliberation that the government must prove, not the length of time it may have gone on.

[In deciding whether premeditation and deliberation have been proved beyond a reasonable doubt, you may consider the testimony as to the defendant’s abnormal mental condition.]

B. SECOND DEGREE MURDER
The elements of second degree murder, each of which the government must prove beyond a reasonable doubt, are that:

• [Name of defendant] caused the death of [name of decedent];
• At the time s/he did so, [name of defendant] intended to kill or seriously injure [name of decedent] [another person], or acted in conscious disregard of an extreme risk of death or serious bodily injury to [name of decedent] [another person].

Second degree murder differs from first degree premeditated murder in that it does not require premeditation, deliberation or an intent to kill.

Inference on Use of a Weapon
You have heard evidence that [name of defendant] used a weapon. If you decide that s/he did use a weapon, you may consider the nature of the weapon, the way [name of defendant] used it, and other circumstances surrounding its use. If use of the weapon under all the circumstances would naturally and probably have resulted in death, you may conclude that [name of defendant] intended to kill [name of decedent] [another person]. Or you may conclude that s/he intended to inflict serious bodily injury or s/he acted in conscious disregard of an extreme risk of death or serious bodily injury. But you are not required to reach any of these conclusions. Consider all the evidence in deciding whether [name of defendant] had the required state of mind.

Order of Considering Charges
You should consider first whether [name of defendant] is guilty of first degree murder. If you find him/her guilty, do not consider second degree murder. If you find him/her not guilty, go on to consider second degree murder. [If, after making all reasonable efforts to reach a verdict on first degree murder, you are not able to do so, you are allowed to consider second degree murder.]

[If an age enhancement was charged, insert Sentencing Enhancement Based on Age, No. 8.103.]

Instructions for the Answer

You are a judicial clerk for the Honorable Neal E. KRAVITZ, Associate Judge, Superior Court of the District of Columbia (sitting by designation pursuant to D.C. Code § 11-707(a) (2012 Repl.). Judge Kravitz has provided you the partial draft of the opinion that has been agreed upon by the entire panel which is transcribed above. He then instructs you to detail how the Federal Rules of Evidence, the Sixth Amendment Confrontation Clause, and any related caselaw or common law doctrines, as you studied them in your spring 2021 Evidence class, illustrate and explain the court’s conclusions of fact and law. You need not address the Fourth Amendment issue in any way. In addressing the possible admissibility of hearsay you need only address it as presented in the court’s partial opinion. In conclusion, the court will grant the defendant a new trial based on his Sixth Amendment Confrontation Clause claim of error.

• Facts taken and modified for examination purposes from the court opinion in Burns v. United States, 235 A.3d 758 (D.C. Ct. of App. 2020), 2020 D.C. App. LEXIS 329, 2020 WL 4875294. The opinion was edited to change facts to fit exam parameters. The names of everyone other than the presiding judges have been changed to prevent confusion between the actual case and related opinion and the hypothetical exam question.