Appellant McCowen Brief - Mass Cases

factual findings of the unavailable medical examiner as
contained in the autopsy report." Evidence rooted in
testimonial hearsay violates the confrontation Clause.
Melendez-Diaz, 129 S. Ct. at 2531-32; Crawfoxd, 541 U.S.
at 50-53; Nardi, 452 Mass. at 391-92; Commonwealth v.
Gonsalves, 445 Mass. 1, 3 (2005). An autopsy performed
pursuant to G.L. c. 38, SS 4 and 7, an official inquest
into a death, is testimonial. Nardi, 452 Mass. at 393.
The discretion afforded the examiner to find facts, make
observations and draw conclusions renders it so. d. at
393-94. The Nardi Court found the Commonwealth's expert
testified to inadmissible hearsay when he "...testified in
some detail regarding the autopsy examination performed
by [another physician] and the findings he reported in
the autopsy report. Specifically, [the expert] described
[the absent physician's] external and internal
examinations .I findings with respect to the rigidity of
[the] body (and the relevance of those findings to time
of death) ; and the locations...[of] contusions,..he
concluded were consistent with facial trauma. - Id.
Neilds here testified at length about factual
findings in weiner'a report, he being the doctor at the
scene. Tr. 1216, 1219-38. Admission of hearsay from that
report and other "studies" offends the Confrontation
Clause "unless the witness appears at trial or, if the
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