February 16, 2012 – State of New Mexico v. Debbie Gonzales, No. 29,763

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: __________
Filing Date: 	February 16, 2012
NO. 29,763
STATE OF NEW MEXICO,
Plaintiff-Appellant,
v.
DEBBIE GONZALES,
Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
George P. Eichwald, District Judge
Gary K. King. Attorney General
Margaret E. McLean, Assistant Attorney General
Joel Jacobsen, Assistant Attorney General
Santa Fe, NM
for Appellant
Jacqueline L. Cooper, Chief Public Defender
Santa Fe, NM
Lelia L. Hood, Assistant Appellate Defender
Albuquerque, NM
for Appellee

OPINION
CASTILLO, Chief Judge.
{1} 	The State listed Dr. Clarissa Krinsky as an expert witness to testify about the
circumstances of the death of Jeff Packer, the victim in this case. Dr. Krinsky did not
perform the autopsy on Packer, and the State explained that it was not going to offer
the autopsy report into evidence. Defendant filed a pre-trial motion to exclude Dr.
Krinsky as the State’s expert witness arguing that because Dr. Krinsky did not
perform the autopsy, allowing her to testify would violate Defendant’s Sixth
Amendment right to confront a witness against her—in this case the author of the
autopsy report itself, who was not going to testify. 	The district court granted the
motion. We hold that based on the record before us, the complete exclusion of the
testimony of Dr. Krinsky was error. 	We reverse and remand with instructions to
proceed with a trial to evaluate Dr. Krinsky’s status as a witness and her testimony
within the boundaries of the Confrontation Clause of the Sixth Amendment and the
New Mexico rules of evidence.
I. 	BACKGROUND
{2} 	This case comes to us on interlocutory appeal. 	Because a trial has not been
held, we rely only on the information set forth in the record and in the August 6, 2009,
hearing before the district court on the motion to exclude the witness. Defendant was

2
charged with second degree murder for the stabbing death of Packer. Dr. Timothy
Williams, a forensic pathology fellow at the Office of Medical Investigator (OMI),
performed the autopsy on Packer. Dr. Williams now lives in the state of Washington,
and the State claims it elected not to bring him back to New Mexico to testify as to his
autopsy report because of “expense and logistical difficulty.” Although the State has
represented that it will not seek to introduce the autopsy report itself into evidence, its
witness list included Dr. Krinsky, another OMI forensic pathologist. Defendant filed
a motion to exclude Dr. Krinsky as a witness, and the district court granted the
motion.
II. 	DISCUSSION
A. 	Autopsy Report
{3} 	We begin by disposing of a preliminary matter—whether the autopsy report
should be considered testimonial and therefore subject to the protections of the Sixth
Amendment under Melendez-Diaz v. Massachusetts, ___ U.S. ___, ___, 129 S. Ct.
2527, 2531-32 (2009). 	Although the Supreme Court did not decide the issue of
autopsy reports in Melendez-Diaz, it observed that “[s]ome forensic analyses, such as
autopsies . . . cannot be repeated,” and therefore the Confrontation Clause is crucial
in such instances to protect a defendant’s Sixth Amendment rights. Id. at ___ n.5, 129
S. Ct. at 2536 n.5.

3
{4} 	Just recently, the Court held that a document “created solely for an evidentiary
purpose, . . . made in aid of a police investigation, ranks as testimonial.” Bullcoming
v. New Mexico (Bullcoming II), ___ U.S. ___, ___, 131 S. Ct. 2705, 2717 (2011)
(internal quotation marks and citation omitted). Some jurisdictions, even in the wake
of Melendez-Diaz, hold that autopsy reports are in a separate category distinct from
other forensic reports and consider them to be non-testimonial. 	See George M.
Tsiatis, Note, Putting Melendez-Diaz on Ice: How Autopsy Reports Can Survive the
Supreme Court’s Confrontation Clause Jurisprudence, 85 St. John’s L. Rev. 355, 381
(2011) (declaring that autopsy reports are “precariously positioned” and worthy of
“special consideration”). 	In Jaramillo, we recently decided that an autopsy report
submitted into evidence was considered testimonial when done in support of a law
enforcement homicide investigation and for use in prosecution of a criminal case.
State v. Jaramillo, 2011-NMCA-___, ¶¶ 13-14, ___ N.M. ___, ___ P.3d ___ (No.
28,517, Nov. 23, 2011). In the case before us, the State has represented that it will not
seek to introduce the autopsy report. Consequently, we need not decide whether the
autopsy report in this case would be testimonial hearsay. Our question is limited to
whether Defendant’s Confrontation Clause rights under the New Mexico and United
States constitutions prohibit Dr. Krinsky from testifying as an expert witness as to the
circumstances of Packer’s death. 	After our opinion in Jaramillo and the Supreme

4
Court’s recent opinion in State v. Cabezuela, 2011-NMSC-041, ¶¶ 48-52, 150 N.M.
654, 265 P.3d 705 (discussing the admissibility of testimony from a pathologist who
had been present at the autopsy, but had not performed it and relied on records
prepared by the other doctor), we conclude that guidelines for the district court’s work
on this question exist, but that the question was not adequately analyzed with regard
to Krinsky’s proposed testimony. Our explanation follows.
B. 	Standard of Review
{5} 	We have two standards of review in this case. 	“Questions of admissibility
under the Confrontation Clause are questions of law, which we review de novo.”
State v. Aragon, 2010-NMSC-008, ¶ 6, 147 N.M. 474, 225 P.3d 1280. Generally, we
review admissibility of evidence, including expert opinion, for an abuse of discretion.
See State v. Alberico, 116 N.M. 156, 169, 861 P.2d 192, 205 (1993).
C. 	Dr. Krinsky’s Testimony
{6} 	In the case before us, the district court relied on the Confrontation Clause and
determined that because Dr. Krinsky had not conducted the autopsy of Packer, she
could not testify to his manner of death. 	Both the United States and New Mexico
constitutions use the same words to guarantee the right of a criminal defendant at trial
“to be confronted with the witnesses against him[.]” U.S. Const. amend. VI; N.M.
Const. art. II, § 14. The Sixth Amendment applies to the states through the Fourteenth

5
Amendment. 	State v. Lopez, 2000-NMSC-003, ¶ 14, 128 N.M. 410, 993 P.2d 727.
“The Confrontation Clause guarantees the accused in a criminal trial the right to be
confronted with the witnesses against him, regardless of how trustworthy the
out-of-court statement may appear to be.” State v. Mendez, 2010-NMSC-044, ¶ 28,
148 N.M. 761, 242 P.3d 328 (internal quotation marks and citation omitted).
{7} 	The State sought to introduce the testimony of Dr. Krinsky as an expert witness.
Under Rule 11-702 NMRA, a witness who qualifies as an expert “by knowledge, skill,
experience, training or education” may testify if such “scientific, technical or other
specialized knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue[.]” Rule 11-703 NMRA, which tracks with the Federal Rule
of Evidence 703, describes the bases of expert testimony:
The facts or data in the particular case upon which an expert bases
an opinion or inference may be those perceived by or made known to the
expert at or before the hearing. If of a type reasonably relied upon by
experts in the particular field in forming opinions or inferences upon the
subject, the facts or data need not be admissible in evidence in order for
the opinion or inference to be admitted.
Rule 11-703 (emphasis added). Rule 11-703 also states that otherwise inadmissible
facts or data “shall not be disclosed to the jury by the proponent of the opinion or
inference unless the court determines that their probative value in assisting the jury
to evaluate the expert’s opinion substantially outweighs their prejudicial effect.”
“However, the disclosure of this otherwise inadmissible information is to assist the

6
jury in evaluating the expert’s opinion, not to prove the substantive truth of the
otherwise inadmissible information.” 	United States v. Pablo, 625 F.3d 1285, 1292
(10th Cir. 2010). “[W]here an expert witness discloses otherwise inadmissible out-of-
court testimonial statements on which she based her opinion, the admission of those
testimonial statements under Rule 703 typically will not implicate a defendant’s
confrontation rights because the statements are not admitted for their substantive
truth.” Pablo, 625 F.3d at 1292.
{8} 	The Confrontation Clause and Rule 703 can be at odds. As the 10th Circuit
pointed out in Pablo, there is a danger that prosecutors will use surrogate witnesses
disguised as experts in order to introduce evidence that otherwise would trigger the
Sixth Amendment’s Confrontation Clause:
If an expert simply parrots another individual’s testimonial hearsay,
rather than conveying her independent judgment that only incidentally
discloses testimonial hearsay to assist the jury in evaluating her opinion,
then the expert is, in effect, disclosing the testimonial hearsay for its
substantive truth and she becomes little more than a backdoor conduit for
otherwise inadmissible testimonial hearsay.
Pablo, 625 F.3d at 1292. The Committee Commentary to Rule 11-703 states that the
rule
is intended to strike a balance between an expert’s need to rely upon
sources of information used in the expert’s field in arriving at decisions,
but at the same time to avoid using the expert witness as a conduit for
inadmissible evidence to be transmitted to the jury and improperly used
as substantive evidence.

7
{9} 	Thus, while there is no argument that under the rules of evidence an expert may
rely for his or her opinion on facts and data that themselves are not admissible, the
question remains whether the inclusion of underlying facts or data from another
source in an expert’s testimony in a given circumstance is admissible or violates the
constitutional rights of a criminal defendant. To answer this question, we look for
guidance from recent United States Supreme Court, New Mexico and Tenth Circuit
cases as we analyze this problem.
1. 	United States Supreme Court Cases
{10} 	In a series of decisions in the past seven years, the United States Supreme Court
has redefined the type of witness statements that trigger the Confrontation Clause
rights of criminal defendants under the Sixth Amendment of the United States
Constitution. Starting in 2004, the Court abandoned its evidentiary test of reliability
and guarantees of trustworthiness when judging whether hearsay testimony is
admissible under the Confrontation Clause. Crawford v. Washington, 541 U.S. 36,
61-62 (2004). 	The Court instead distinguished between testimonial and non-
testimonial evidence and ruled that the former always triggers the Sixth Amendment
right of confrontation. 	Crawford, 541 U.S. at 51. 	The Court did not define
“testimonial” but gave examples:
ex parte in-court testimony or its functional equivalent—that is, material

8
such as affidavits, custodial examinations, prior testimony that the
defendant was unable to cross-examine, or similar pretrial statements
that declarants would reasonably expect to be used prosecutorially, . . .
extrajudicial 	statements 	. 	. 	. 	contained 	in 	formalized 	testimonial
materials, such as affidavits, depositions, prior testimony, or confessions,
. . . statements that were made under circumstances which would lead an
objective witness reasonably to believe that the statement would be
available for use at a later trial[.]
Id. at 51-52 (second alteration in original) (internal quotation marks and citations
omitted). More recently, the Court clarified that certificates of analysis from forensic
testing are testimonial statements subject to the Confrontation Clause, thus requiring
that the witness be available at trial for cross-examination, because the statements “are
functionally identical to live, in-court testimony, doing ‘precisely what a witness does
on direct examination.’” Melendez-Diaz, ___ U.S. at ___, 129 S. Ct. at 2532 (quoting
Davis v. Washington, 547 U.S. 813, 830 (2006)). 	The 	Crawford 	Court did
acknowledge, parenthetically, that the Confrontation Clause “does not bar the use of
testimonial statements for purposes other than establishing the truth of the matter
asserted.” 541 U.S. at 59 n.9 (citing Tennessee v. Street, 471 U.S. 409 (1985) for the
proposition that the confession of an accomplice may be admitted for non-hearsay
purpose of rebutting the defendant’s testimony about his own confession being
coerced through the accomplice’s statement). 	One scenario in which testimonial
statements are offered for a purpose other than as substantive evidence is when they
are used, as we noted above, under Rule 11-703, as underlying facts and data relied

9
on by an expert witness. The United States Supreme Court cautions, though, that “ex
parte examinations might sometimes be admissible under modern hearsay rules, but
the Framers certainly would not have condoned them.” Crawford, 541 U.S. at 51.
{11} 	In 2009, the United States Supreme Court built on Crawford and stated in
Melendez-Diaz that the introduction of a drug analyst’s certificate of analysis required
that the witness be available for cross-examination by the defendant, otherwise the
evidence is inadmissible. Melendez-Diaz, ___ U.S. ___, 129 S. Ct. at 2532. While
the Court discussed concerns about the potential burden on prosecutions of tracking
down unavailable analysts, sometimes years after the original forensic testing was
conducted, to testify at trial, it concluded: “The Confrontation Clause . . . is binding,
and we may not disregard it at our convenience.” Id. at ___, 129 S. Ct. at 2540. As
the dissent in Melendez-Diaz suggested, “The Court made clear in Davis that it will
not permit the testimonial statement of one witness to enter into evidence through the
in-court testimony of a second[.]” 	Id. at ___, 129 S. Ct. at 2546 (Kennedy, J.,
dissenting). Requiring the original witness to be presented for confrontation by the
defendant, the Court declared, “is one means of assuring accurate forensic analysis.”
Id. at ___, 129 S. Ct. at 2536.
{12} 	After the appellate briefing in the case before us, the United States Supreme
Court decided Bullcoming II, ___ U.S. ___, 131 S. Ct. 2705, which overruled the New

10
Mexico Supreme Court’s decision, State v. Bullcoming (Bullcoming I), 2010-NMSC-
007, 147 N.M. 487, 226 P.3d 1 (allowing a substitute expert to testify about a
chemical report conducted by another analyst). 	The United States Supreme Court
concluded that such “surrogate” testimonial evidence offends the accused’s “right . . .
to be confronted with the analyst who made the certification[.]” Bullcoming II, ___
U.S. at ___, 131 S. Ct. at 2710. Testimonial evidence “may not be introduced against
the accused at trial unless the witness who made the statement is unavailable and the
accused has had a prior opportunity to confront that witness.” Id. at ___, 131 S. Ct.
at 2713. The Court stated that the Sixth Amendment “does not tolerate dispensing
with confrontation simply because the court believes that questioning one witness
about another’s testimonial statements provides a fair enough opportunity for cross-
examination.” 	Id. at ___, 131 S. Ct. at 2716. 	The Court concluded that the
introduction of testimony through a substitute or surrogate witness attesting to the
original analyst’s report violated the defendant’s right to confrontation. See id. at ___,
131 S. Ct. at 2710.
{13} 	The case before us, however, can be distinguished from Bullcoming II, because
here the original report—the autopsy performed by Dr. Williams—will not be
introduced into evidence. Further, Dr. Krinsky’s testimony is to be offered through
her role as an expert witness, not as a surrogate introducing the report of Dr. Williams.

11
And, according to the proffer of the State, Dr. Krinsky will not parrot the findings of
Dr. Williams, but she will instead offer her own opinions and conclusions. 	In
Bullcoming II, Justice Sotomayor sided with the majority in barring the surrogate
testimony but penned a concurring opinion “to emphasize the limited reach of the
Court’s opinion,” id. at ___, 131 S. Ct. at 2719 (Sotomayor, J., concurring), and to
“highlight some of the factual circumstances that this case does not present.” Id. at
___, 131 S. Ct. at 2721-22. Justice Sotomayor emphasized that Bullcoming was “not
a case in which an expert witness was asked for his independent opinion about
underlying testimonial reports that were not themselves admitted into evidence.” Id.
at ___, 131 S. Ct. at 2722 (“As the Court notes . . . the [s]tate does not assert that
Razatos offered an independent, expert opinion about Bullcoming’s blood alcohol
concentration.”). 	“We would face a different question if asked to determine the
constitutionality of allowing an expert witness to discuss others’ testimonial
statements if the testimonial statements were not themselves admitted as evidence.”
Id. 	The case before us, therefore, presents a different factual matrix than that in
Bullcoming I.
2. 	New Mexico Cases
{14} 	Our own Supreme Court decided Aragon at the same time as Bullcoming I and

12
similarly rejected the admission of a forensic report by a second expert when the
analyst who had tested the substance was not the one to testify at trial. In Aragon, the
Court made a point similar to the one Justice Sotomayor would later make in her
Bullcoming II concurrence:
The [s]tate’s argument would have merit if Young had expressed his own
opinion based upon the underlying data that contributed to the opinion
announced in the report. It is proper to admit opinion testimony based,
in part, upon reports of others which are not in evidence but which the
expert customarily relies upon in the practice of his profession.
2010-NMSC-008, ¶ 23 (internal quotation marks and citation omitted). The Court
concluded: 	“Under such circumstances, [the d]efendant would have had the
opportunity to effectively cross-examine Young, and his right to confrontation would
not have been violated.” Id.
{15} 	Thus, the case before us can be distinguished from Melendez-Diaz, Bullcoming
II, the New Mexico Supreme Court’s decision in Aragon, and our case Jaramillo. In
those cases, the report itself was admitted into evidence, and the alternate analyst was
used as a witness to introduce the findings of the original, unavailable analyst. Here,
the forensic report is not being admitted into evidence but might serve as an
underlying document to be used by the expert in giving her own opinion. This is an
interlocutory appeal; we do not know what will transpire at trial.
{16} 	But our analysis does not end here, because Aragon cautions that a state’s

13
witness does not have carte blanche to give boundless testimony based on hearsay
evidence. The controlling question in a case involving an alternative expert witness,
our Supreme Court noted, is whether the analyst’s testimony “was an expression of
his own opinion or whether he was merely parroting” or “merely repeating the
contents of [the] report or the opinion of the analyst who is unavailable for cross-
examination.” 2010-NMSC-008, ¶ 26. 	Aragon pointed to an out-of-state case that
held an analyst’s testimony was inadmissible even when that testimony was only
partially based on the non-testifying expert’s hearsay opinion. 	Id. ¶ 25 n.4. 	But,
again, our Supreme Court clarified its “concern” about such a situation: 	“The
opposing party has no opportunity to cross-examine the basis for the hearsay opinion
because the opinion is not the testifying expert’s own opinion. This is especially true
when, as is the situation in this case, the testifying expert relies solely on the opinion
of another expert.” Id. In other words, the degree to which a substitute analyst parrots
the hearsay testimony of another, or in the parlance of Bullcoming II, serves as a mere
surrogate, controls the analysis.
3. 	Tenth Circuit Cases
{17} 	An examination of those boundaries played out in federal court in New Mexico
in United States v. Mirabal, 2010 WL 3834072 (D.N.M. 2010) (mem. & order), filed
in 2010—a year after Melendez-Diaz, but a year before Bullcoming II. 	There, the

14
federal government sought to bring in the testimony of a forensic chemist, Eshelman,
who was the supervisor of the analyst, Hall, who had tested the substance in question
but was unavailable to testify. 2010 WL 3834072, at *2. The federal district court for
New Mexico in Mirabal distinguished the circumstances from those in Melendez-Diaz
based on the fact that live testimony was available. Mirabal, 2010 WL 3834072, at
*4. The court therefore granted the government’s motion to allow the supervising
analyst to testify based on her own expert opinions. 	Id. 	In granting the motion,
however, the court cautioned the government about the permissible scope of such
testimony: “Eshelman’s conclusions must be her own, and not a parroting of Hall’s
opinions.” Id. The court noted that defense counsel
will be able to cross-examine Eshelman on the issues of “what tests the
analysts performed, whether those tests were routine, and whether
interpreting their results required the exercise of judgment or the use of
skills that the analysts may not have possessed.” Melendez-Diaz, [___
U.S. at ___,] 129 S. Ct. at 2537. 	She would also be able to
cross-examine Eshelman on the fact that Eshelman did not, herself,
perform[] the tests and inquire about the possibility that Hall had
performed the tests incorrectly.
Mirabal, 2010 WL 3834072, at *4. The court took guidance from United States v.
Johnson, 587 F.3d 625, 635 (4th Cir. 2009), which worried about prosecutors making
“an end run around Crawford” and stated: “As long as [the expert] is applying his
training and experience to the sources before him and reaching an independent
judgment, there will typically be no Crawford problem.” Id.

15
{18} 	In the wake of Melendez-Diaz, the Tenth Circuit has embraced the idea of an
analyst testifying as an expert based on another’s report that qualifies as an out-of-
court testimonial statement. Pablo, 625 F.3d at 1292. In Pablo, the court allowed an
analyst, Snider, to give her expert opinion based on DNA reports that she did not help
compile but were filed by others, Dick and Boyd: “Nowhere does Ms. Snider testify
that she is simply parroting Ms. Dick’s DNA report to the jury. To the contrary, her
testimony revealed her own extensive review of the entire test procedure in this case[,]
and she expressed her own expert conclusions.” 	Id. at 1294. The court upheld the
admission of Snider’s testimony even though “once or twice” she discussed Dick’s
conclusions because she did so “in the context of explaining some of the data and
information she is relying on in giving her own expert opinion.” Id. The court did
concede the precariousness of such a situation: “The degree to which an expert may
merely rely upon, and reference during her in-court expert testimony, the out-of-court
testimonial conclusions of another person not called as a witness is a nuanced legal
issue without clearly established bright line parameters, even today with the benefit
of Melendez-Diaz.” Pablo, 625 F.3d at 1294.
{19} 	The rationale of the Tenth Circuit applies to the situation in this case. Here, the
State told the district court that its testifying pathologist, Dr. Krinsky, would not rely
on the conclusions or opinions of Dr. Williams and his original autopsy report, but

16
rather on her own review of photographs of the body and other raw data. 	If Dr.
Krinsky offers her own opinions and conclusions as an expert witness and avoids
parroting the testimonial statements of Dr. Williams, her testimony would not run
afoul of Defendant’s Sixth Amendment right to confrontation. At this point, we do
not know, because we have only the proffer, not her actual testimony.
4. 	Other Jurisdictions
{20} 	Cases from other state court jurisdictions reveal a variety of approaches to this
question. The Supreme Judicial Court of Massachusetts has allowed experts to testify
based on autopsy reports when the original analyst was not available to testify.
[S]ubstitute medical examiner’s opinions must be grounded in the
evidence presented at trial, but once that condition is met, he or she may
offer opinions on such issues, among others, as whether a particular
wound was an entry or exit wound, the amount of time that would have
elapsed between injury and death, the amount of force required to inflict
an injury, the characteristics of the object probably used to inflict the
type of injury observed, and the effect that certain types of injuries
would have had on the victim.
Commonwealth v. Avila, 912 N.E.2d 1014, 1028 (Mass. 2009). The Illinois Supreme
Court has ruled that an expert may testify about data in forensic reports even though
the original analyst is not available to testify, to show the basis for the testimony of
the expert witness. See People v. Lovejoy, 919 N.E.2d 843, 870 (Ill. 2009). In People
v. Williams, 939 N.E.2d 268, 278 (Ill. 2010), cert. granted, Williams v. Illinois, ___

17
U.S. ___, 131 S. Ct. 3090 (U.S. June 28, 2011), the Illinois court stated: “This court
has long held that prohibitions against the admission of hearsay do not apply when an
expert testifies to underlying facts and data, not admitted into evidence, for the
purpose of explaining the basis of his opinion.” The Washington Court of Appeals
allowed expert testimony of supervisors on an autopsy report not admitted into
evidence because the experts “were not acting as mere conduits for the testimonial
assertions of their employees.” State v. Lui, 221 P.3d 948, ¶ 27 (Wash. Ct. App. 2009)
(“This is not a case where the [s]tate produced expert witnesses simply to have them
recite out-of-court statements made by others as a way to evade the protections of the
[C]onfrontation [C]lause.”). Other courts permit such expert testimony but closely
guard against allowing the expert to disclose testimonial statements based on the
underlying autopsy report when the author of the report is not available as a witness.
In Wood v. State, 299 S.W.3d 200, 211-13 (Tex. Ct. App. 2009), the expert witness
relied on photographs to form his own opinion about the nature and causes of the
victim’s injury, thus steering clear of violating the Confrontation Clause; however, the
court held that the expert did later violate the Confrontation Clause when he testified
as to the conclusions of the original medical examiner.
{21} 	Other courts have found clear violations of defendants’ Sixth Amendment rights
by expert witnesses. 	The North Carolina Court of Appeals found a Confrontation

18
Clause violation based on the following testimony of an expert witness, Schell, who
had not performed the forensic examination at issue:
Q. 	Now have you reviewed the testing procedures that you’ve
described and the results of the examinations of the test yourself?
A. 	I have.
Q. 	And have you also reviewed Agent Gregory’s conclusion?
A. 	I have.
Q. 	Have you formed an opinion as to the item that was submitted
inside the plastic bag that’s been marked as State’s Exhibit 1B?
A. 	I have.
Q. 	And what is your opinion based on?
A. 	Based upon all the data that she [Agent Gregory] obtained from
the analysis of that particular item, State’s Exhibit 1B, I would have
come to the same conclusion that she did.
State v. Brewington, 693 S.E.2d 182, 185 (N.C. Ct. App. 2010). The court concluded:
It is clear from the testimony of Special Agent Schell that she had
no part in conducting any testing of the substance, nor did she conduct
any independent analysis of the substance. 	She merely reviewed the
reported findings of Agent Gregory, and testified that if Agent Gregory
followed procedures, and if Agent Gregory did not make any mistakes,
and if Agent Gregory did not deliberately falsify or alter the findings,
then Special Agent Schell “would have come to the same conclusion that
she did.”
Id. at 190.
{22} 	Most recently, the Maryland Court of Appeals warned about allowing an
alternate analyst to remark on the conclusions of the non-testifying analyst’s DNA
report. In Derr v. State, 29 A.3d 533, 557 (Md. 2011), the court concluded that the
expert witness “relied on the serological examiner’s conclusion that sperm cells were

19
present” and “conceded that she could not form an independent basis for her
conclusions without trusting the report.” The court reasoned: “The key distinction
in this type of case is whether the testifying expert relies on raw data in forming his
or her conclusions, as opposed to relying on the conclusions and opinions of others
when testifying.” Id. at 553.
5. 	Analysis
{23} 	Allowing an expert to testify to an opinion based on the work of a non-
testifying, as opposed to an unavailable, witness is a balancing act for courts that must
protect the Confrontation Clause rights of the accused while permitting the state to
reasonably present expert testimony for the benefit of the factfinder. 	Courts must
walk that fine line between the Confrontation Clause and the rules of evidence with
care.
If the specific conclusions of the report’s non[-]testifying author are not
disclosed, and if the testifying expert can also be cross-examined on the
fact that he did not personally conduct the tests at issue that undergird his
conclusions, permitting reliance upon a report that provides sufficient
detail for another expert to exercise independent expertise, assess its
conclusions and reach his own judgment appeals to numerous judges as
reasonable balance between respecting the Confrontation Clause values
and continuing to permit experts to reasonably rely on inadmissible
materials, as has long been permitted under Rule 703.
David H. Kaye, David E. Bernstein, Jennifer L. Mnookin, The New Wigmore: 	A
Treatise on Evidence—Expert Evidence, § 4.10.2, at 202-03 (2d ed. 2011); see

20
O’Kelly v. State, 94 N.M. 74, 77, 607 P.2d 612, 615 (1980) (stating that experts may
rely on facts and data embodied in a non-admissible report but not the oral or written
opinions of the non-testifying compiler of that report). In the case before us, in the
absence of a fully formed record, we can say no more at this point other than that
allowing an expert to testify based on information in the autopsy report of another
analyst, assuming the report itself is not introduced into evidence, is not a per se
violation of the Confrontation Clause rights of the defendant. Because the autopsy
report is not being admitted into evidence, this case does not trigger the Confrontation
Clause violations flagged by the United States Supreme Court in Melendez-Diaz or
Bullcoming II and by our own Supreme Court in Aragon. An expert’s testimony may
be based on inadmissible evidence, and until such expert testimony crosses the line
from the formation of an independent opinion based on underlying raw data to a
reliance on the conclusions and opinions of the author of the autopsy or a mere
parroting of the report’s findings, then that testimony is admissible subject to the rules
of evidence.
{24} 	We extend this discussion in order to provide words of caution to be observed
by the district court upon remand as it takes on the responsibility of ensuring that Dr.
Krinsky’s testimony does not run afoul of Defendant’s Confrontation Clause rights.
We do not decide here, for instance, whether under the New Mexico rules of evidence

21
Dr. Krinsky is qualified to serve as an expert witness or whether the underlying facts
and data she plans to rely on are a sufficient basis for such expert testimony. 	In
addition, the district court must closely police the testimony of Dr. Krinsky if she
relies in any way on the underlying facts and data contained in the autopsy report
prepared by Dr. Williams. And Defendant will have the opportunity to object to any
and all of Dr. Krinsky’s testimony, as well as to cross-examine Dr. Krinsky and
inquire about her methods and her lack of personal knowledge about the autopsy that
was conducted, all subject to the court’s discretion.
{25} 	Such case-by-case scrutiny by a trial court is essential. 	The New Mexico
Supreme Court recently gave guidance to district courts when they assess testimony
that pushes the boundaries of hearsay limitations under the rules of evidence: “Our
courts must once again shoulder the heavy responsibility of sifting through statements,
piece-by-piece, making individual decisions on each one.” Mendez, 2010-NMSC-044,
¶ 46. In Mendez, the Supreme Court refused to proclaim that all statements made by
any victim to a sexual assault nurse examiner (SANE) must be excluded under the
rules of hearsay: “It would make our job far easier simply to exclude all statements
made during SANE examinations. We would do so, however, at the substantial risk
of excluding statements that are otherwise trustworthy, vital to the prosecution, and
fair to the accused.” Id. In the realm of Confrontation Clause analysis, we, too, refuse

22
to extend the holdings of Crawford, Melendez-Diaz, and Bullcoming II and to toss a
blanket ban on the testimony of an expert witness about the circumstances of the death
of the victim in those instances when the expert did not perform the autopsy and the
autopsy report has not been admitted into evidence.
{26} 	In summary, the balance between the extent to which its contents constitute the
facts and data upon which Dr. Krinsky bases her opinion, and whether those facts are
presented before the jury pursuant to Rule 11-703 requires active monitoring and
evaluation by the district court—a process that has not played out here and points to
the district court’s ruling as being premature under the state of the law. 	After
Cabezuela, we know that a pathologist who participated in an autopsy can testify to
his or her opinion, including opinions utilizing another participating doctor’s notes.
Until Dr. Krinsky testifies to her opinions and their bases, no confrontation problem
exists. 	Perhaps, no confrontation problem will arise. 	Until it does, however,
exclusion of her testimony is unwarranted and requires reversal.
III. 	CONCLUSION
{27} 	For the foregoing reasons, we conclude that Dr. Krinsky should not have been
precluded from testifying as an expert as to the circumstances surrounding the
victim’s death because she did not prepare the autopsy report. 	The proffer by the
State indicates that she will be testifying as an expert in her own right. Nevertheless,

23
her testimony is not automatically admissible. 	As Dr. Krinksky presents her
testimony at trial, Defendant will be able to make objections. The State will be able
to counter, and the district court will make its rulings based on the testimony offered
and the objections made.
{28} 	Accordingly, we reverse the order of the district court excluding Dr. Krinsky
from being an expert witness and remand this matter to the district court for
proceedings consistent with this Opinion.
{29} 	IT IS SO ORDERED.
_________________________________
CELIA FOY CASTILLO, Chief Judge
WE CONCUR:
___________________________________
CYNTHIA A. FRY, Judge
___________________________________
RODERICK T. KENNEDY, Judge