620.1Autopsy and Cause of Death
- A lay witness may give an opinion about cause of death if it is based on personal observation and any person of average intelligence would know that the circumstances resulted in death – if not, expert opinion testimony will probably be required.
- Expert testimony from a properly qualified witness about the victim’s cause of death is routinely admitted.
- Photographs of the autopsy (or other photographs of the victim’s body) may be admissible even though they are gruesome, as long as the court determines that the probative value of the pictures is not substantially outweighed by unfair prejudice.
Lay Opinion Testimony about Cause of Death
Although the state will usually establish the cause of death in a case through the testimony of an expert witness (typically the medical examiner or pathologist who performed the autopsy), a lay witness is also permitted to give an opinion about the cause of the victim’s death if: (i) it is based on the witness’s personal observations; and (ii) the circumstances were such that any person of average intelligence would know that it resulted in death. See State v. Cherry, 141 N.C. App. 642 (2000) (officer was properly permitted to offer an opinion that the cause of victim’s cause death was gunshot wound to the back of the head: “We find that Mr. Edwards’ wounds were obviously lethal in nature to a sufficient degree to render expert medical testimony as to the cause of death unnecessary”); State v. Wilson, 280 N.C. 674 (1972) (non-expert found competent to testify about cause of death when evidence showed that deceased was shot by defendant in chest with shotgun at close range, deceased fell immediately, and blood flowed from the wound); State v. Luther, 285 N.C. 570 (1974) (cause of death may be established without the use of expert medical testimony when the facts in evidence are such that every person of average intelligence would know from his or her own experience or knowledge that the wound was mortal); State v. Trueblood, 39 N.C. App. 459 (1979) (when evidence showed that a young boy who could not swim was pushed off log, his floundering carried him away from log to deeper water, his head bobbed three times, he was not seen again, and his body was recovered within a very short time, testimony by nonmedical witness that boy had died from drowning was admissible).
Expert Opinion Testimony about Cause of Death
North Carolina’s appellate courts have consistently held (both before and after the 2011 Daubert amendments) that the testimony of a properly qualified expert witness regarding the cause of a victim’s death is admissible under Rule 702. See, e.g., State v. Ford, 245 N.C. App. 510 (2016) (not plain error to allow forensic pathologist to opine that the victim’s cause of death was exsanguination due to dog bites); State v. Johnson, 343 N.C. 489 (1996) (allowing witness to testify as an expert in pathology and cause of death, even though witness was not yet certified and had not completed formal training, but had performed a number of prior autopsies); State v. Miller, 302 N.C. 572 (1981) (the trial court did not err by allowing an expert forensic pathologist to testify regarding the size or gauge of the gun used as the murder weapon); State v. Morgan, 299 N.C. 191 (1980) (rejecting the defendant’s challenge to expert testimony offered by the N.C. Chief Medical Examiner that the cause of death was “a shotgun wound, shotgun blast” and noting: “It has long been the rule in North Carolina that the cause of an individual's death is the proper subject of expert testimony.”); see also State v. Parks, 265 N.C. App. 555 (2019) (applying Rule 702 and Daubert in a murder case where body was never found but large volume of blood was found in defendant's home, state's pathologists were properly permitted to testify based on training, experience, and investigation that any person who lost that quantity of blood "would need immediate medical attention").
In reaching a conclusion about the cause of death, an expert witness may also take into account any of the facts and circumstances of the case which are known to him or her, and consider how those elements may have played a role in the victim’s death. See, e.g., State v. Borders, 236 N.C. App. 149 (2014) (the trial court did not err by allowing the state’s forensic pathologists to testify that the cause of death was asphyxiation – even though no physical evidence directly supported that conclusion – where the experts knew that the victim’s home was broken into, that she had been badly bruised, that she had abrasions on her arm and vagina, that her underwear was torn, and that DNA obtained from a vaginal swab containing sperm matched the defendant's DNA samples. The experts’ physical examination did not independently establish the cause of death, but both doctors drew upon their experience performing autopsies in stating that suffocation victims often do not show physical signs of asphyxiation, and they eliminated all other causes of death before concluding it was asphyxiation); State v. Smith, 157 N.C. App. 493 (2003) (quoting G.S. 130A–385, holding that the trial court did not err by allowing the medical examiner to offer an opinion that the victim was killed when struck by the passenger side of the truck’s door frame: “As part of his responsibilities, a medical examiner is required to “make inquiries regarding the cause and manner of death” and is “authorized to inspect all physical evidence and documents which may be relevant to determining the cause and manner of death of the person whose death is under investigation.”).
“Qualifier” Words Not Required
An expert witness testifying about the cause of death may give a positive opinion (if the witness has one) on the subject without having to qualify the testimony with the terms “could” or “might.” Rule 705 has eliminated the prior requirement that expert opinion testimony must be given in response to a hypothetical question. See G.S. 8C-1, Rule 705; State v. Morgan, 299 N.C. 191 (1980) (expert who had examined skeletal remains was qualified to state opinion about the probable cause of death without couching his testimony in terms of what “might have” or “could have” caused death—testimony did not invade providence of jury); State v. Ledford, 315 N.C. 599 (1986) (expert’s failure to qualify opinion by terms “might” or “could” was not an improper expression of opinion as to the ultimate issue).
Lack of Certainty
A lack of certainty in an expert’s opinion testimony about the cause of death affects the probative value of such evidence, not its admissibility. See State v. Ward, 300 N.C. 150 (1980) (no error in admitting expert’s testimony that the fatal bullet “could have” come from defendant’s gun – “That the testimony might have had little probative value goes to the question of its weight and sufficiency, not its admissibility”); State v. Evans, 74 N.C. App. 31 (1985), aff'd, 317 N.C. 326 (1986) (trial judge properly allowed a pathologist to testify that a child’s fatal hematoma could have been caused by violent shaking, causing tearing of the blood vessels between the dura and the brain, and adding that death could result either from swelling of the brain or from rapid trauma to the brain from alteration of the blood supply). The testimony is admissible if the expert’s scientific, technical, or specialized knowledge will help the jury understand the evidence or to determine a fact in issue. See G.S. 8C-1, Rule 702.
No “Legal” Conclusions
Expert opinion testimony about the cause of death does not “invade the province of the jury,” even if it refers to an ultimate issue, but the expert generally may not testify that a particular legal standard or conclusion has or has not been satisfied or met. See G.S. 8C-1, Rule 704; See State v. Parker, 354 N.C. 268 (2001) (not error to allow the state’s forensic pathologist expert to testify that the victim’s death was a “homicide”); State v. Ledford, 315 N.C. 599 (1986) (witness was permitted to give opinion testimony that the injuries caused death, but not to state that the defendant’s conduct caused death, since that was a legal conclusion – witness improperly testified as to “proximate cause” of death, which was error); see also State v. Teague, 134 N.C. App. 702 (1999) (proper to allow expert to opine that one of the victim's “gunshot wounds to the head was consistent with an intent to cause death”). But see State v. Daughtridge, 248 N.C. App. 707 (2016) (applying Daubert, appellate court held it was error to allow expert to opine that death was a "homicide," where that opinion was based on non-medical information provided by law enforcement rather than medical evidence).
However, expert testimony that addresses an underlying factual question is generally permissible, even though that testimony may directly bear on an issue to be decided by the jury. See, e.g., State v. Flippen, 344 N.C. 689 (1996) (not error to allow the state’s forensic pathologist expert to testify that the victim died as a result of a “homicidal assault”); State v. Jennings, 333 N.C. 579 (1993) (forensic pathologist who performed the autopsy permitted to testify that the victim was “tortured,” where the defendant was charged with first-degree murder on the basis of torture); State v. Crawford, 329 N.C. 466 (1991) (medical expert was properly allowed to testify that the death was the result of intentional physical injury and the amount of water would not be voluntarily taken in by a child unless it was forced on him; court ruled that the terms “voluntary,” “threatened,” and “coerced” did not refer to a specific legal standard in this case – testimony only confirmed defendant’s admission that he coerced child to drink water); State v. Saunders, 317 N.C. 308 (1986) (pathologist who did the autopsy allowed to testify that the defendant's account of the shooting was inconsistent with the type of wound suffered by victim and that the wound was not a self-defense type wound, even though self-defense was an ultimate issue in the case).
What’s the difference?
As shown by the cases cited above, it is not always easy to distinguish between an admissible “medical opinion” and an inadmissible “legal conclusion.” In practice, the admissibility of the expert’s testimony in these areas area may turn on the particular words or phrases the witness uses, even though the idea being expressed is fairly similar. For example, the witness might not be allowed to opine that the victim’s death was a “murder” (since that term incorporates legal conclusions about malice, premeditation, etc.) but the witness should be allowed to state that the death was a “homicide” or “homicidal assault.” Similarly, the witness might not be allowed to opine that the victim had “self-defense wounds,” but could state that he or she had “wounds consistent with fending off an attack.”
Admissibility of Autopsy/Death Photographs
When a photograph is relevant and material, the fact that it is gory, gruesome, or otherwise tends to arouse prejudice will not, standing alone, render it inadmissible. See State v. Hennis, 323 N.C. 279 (1988). In Hennis, the court ruled that it is left in the trial judge’s discretion to evaluate whether the probative value of the photographic evidence is substantially outweighed by the risk of unfair prejudice. Id. The court set forth a number of factors that the trial judge should weigh in exercising such discretion, as follows:
- Content and manner in which photographic evidence is used;
- Level of detail and scale;
- Whether the photograph is in black and white or color;
- Whether the photograph is a slide or a print;
- Manner in which the photograph is projected or presented; and
- Scope and clarity of the testimony that the photographic evidence accompanies.
Id. The court in Hennis ruled that the use of 35 photographs (which were projected on a screen above the defendant’s head) was unfairly prejudicial and ordered a new trial, but numerous other cases have found the admission of a reasonable number of autopsy or death photographs to be proper and admissible, depending on the circumstances of the case and the six factors listed above. See, e.g., State v. Walters, 357 N.C. 68 (2003) (allowing use of close-up photo of murder victim’s face, showing blood on her face and a fly on her eyelid); State v. Haselden, 357 N.C. 1 (2003) (not error to allow one close-up photo of the murder victim’s head and two of her body – defendant’s stipulation as to cause of death did not preclude use of the photographs); State v. Bearthes, 329 N.C. 149 (1991) (twelve photographs of autopsy properly admitted); State v. Cummings, 326 N.C. 298 (1990) (photographs taken during autopsy were properly admitted to show absence of struggle, illustrate description of wound, and there was no unnecessary repetition); State v. Boyd, 287 N.C. 131 (1975) (photographs properly admitted when coroner testified that color photographs showed more clearly the difference between blood stains and bullet holes).
Consider a motion in limine
The prosecutor will almost always know in advance if he or she intends to offer photographs of the deceased into evidence, so the better practice is to alert the judge prior to offering the exhibits (either through a motion in limine made before trial, or as a trial motion made before calling the witness and outside the presence of the jury) so that the court can evaluate the proposed photographs and rule on their admissibility.
Who May Perform Autopsy
G.S. 130A-389 provides that the Chief Medical Examiner or a competent pathologist appointed by the Chief Medical Examiner may perform an autopsy.
Who May Order or Request Autopsy
The Chief Medical Examiner or the medical examiner investigating a case may order an autopsy, and a district attorney or superior court judge may request that an autopsy be performed. G.S. 130A-389; G.S. 15-7. For other cases in which an autopsy is authorized, and a list of other persons who may request that it be done in certain circumstances, see G.S. 130A-398.
Admissibility of Autopsy Report
Autopsy reports are generally admissible in court, but remain subject to constitutional and evidentiary limitations. See G.S. 130A-392 (reports of medical examiner and autopsy reports “may be received as evidence in any court or other proceeding”); but see State v. Locklear, 363 N.C. 438 (2009) (Crawford violation occurred when the trial court admitted opinion testimony of two non-testifying experts regarding a victim’s cause of death and identity); State v. Watson, 281 N.C. 221 (1972) (introduction of a certified death certificate to prove the cause of death, without testimony from the author, was inadmissible hearsay and violated defendant’s confrontation rights). For more information on Confrontation Clause issues, including cases where the testifying expert’s opinion is based in part on the toxicology analysis or autopsy examination of a different witness, see the related entry on Expert Witnesses – Crawford and Substitute Analysts.
Exhumation and Examination
In any case where a body has been buried without first being investigated by a medical examiner, and “sufficient cause develops for further investigation,” the court may (upon authorization by the Chief Medical Examiner and a petition by the district attorney or any other person) order the body exhumed and examined. Alternatively, the next-of-kin may also ask to have the remains exhumed, examined, and redisposed, without applying for a judicial order. See G.S. 130A-390.