Right to Cross-Examine Expert Violated If Expert Absent
When the accuser is unavailable, there are times when a court will allow a statement of the accuser to be read in trial and avoid cross-examination. This is when the statement has “adequate indicia of reliability,” which has been interpreted dozens, if not hundreds of ways. A witness is deemed unavailable if the party seeking to admit the statement has made good faith, although fruitless, efforts to obtain the accuser’s presence at trial.Article in Short Form: Court violates murder defendant’s right to cross-examine expert by admitting opinion without the expert testifying.
On August 29, 1997, Marc Merolillo carjacked a vehicle owned by an elderly couple named Chromys. Merolillo pushed Mr. Chromys, in his seventies, out of the car and drove off with Mrs. Chromys, age 78, in the backseat screaming.
Mrs. Chromys was able to open her door and try to escape the moving vehicle, but she somehow got tangled up in her seatbelt. Merolillo did not stop, so Mrs. Chromys was dragged along for about 400 yards, banging her head and her body on the road, before she left the car.
Merolillo was arrested after a high speed chase. Mrs. Chromys died about a month later from an aneurysm, although it was suspected strongly that the horrific carjacking was a factor in her death. Mr. Merolillo was charged with first degree murder.
The legal cause of death of Mrs. Chromys was hotly debated, as she had numerous pre-existing conditions such as hypertension, atherosclerosis, multiple syndromes and had survived several strokes.
At trial, Dr. Garber did not testify, as the prosecution experts did not like Garber’s contradictory testimony, as it seemed weak. However, the prosecution elicited Dr. Garber’s opinions from Merolillo’s medical experts. Both prosecution experts and the defense expert could not say with any certainty whether the aneurysm was caused by the trauma or developed later. Merolillo, however, was convicted of murder.
The conviction was consequently vacated. Merolillo certainly must have felt relief in this ruling. The permanent citation for this ruling is Merolillo v. Yates (9th Cir., 2011) 663 F.3d 444.
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