Justia Lawyer Rating
Best Attorneys of America
Super Lawyers
Superior DUI Attorney 2017
10 Best Law Firms
Top One Percent 2017
The National Trial Lawyers
Best of Thervo 2017
10 Best Law Firms
Criminal Defense Attorneys

Right to Cross-Examine Expert Violated If Expert Absent

The Sixth Amendment to the U.S. Constitution, made applicable to each of the states through the Fourteenth Amendment, contains what is commonly known as the “Confrontation Clause.”  This says that “[i]n all criminal prosecutions, the accused shall enjoy the right . . .  to be confronted with the witness against him.”  This has been interpreted in countless ways, but one important aspect that seemingly all interpretations agree upon is that this means the accused has the right to cross-examine the accuser to probe his or her credibility and thus establish the weight of the accuser’s testimony.
Article in Short Form:  Court violates murder defendant’s right to cross-examine expert by admitting opinion without the expert testifying.
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.

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.  

image description
At the preliminary hearing, the autopsy pathologist, Dr. Garber, testified in an inconsistent and conclusory manner.  For example, when asked to describe the mechanism by which a brain injury is fatal, he answered, “it just is.”

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.

On appeal, Merolillo argued that it was error for the trial court to allow admission of Garber’s opinions because Merolillo could not cross-examine Garber, in violation of his Sixth Amendment confrontation clause rights.  The appeals court denied the appeal, characterizing the error as harmless.  The federal district court also dismissed Merolillo’s habeus petition based on the same arguments.

image descriptionNinth Circuit Court of Appeals

The Ninth Circuit Court of Appeals, in Merolillo v. Yates (the prison warden for the State of California) (2011 DJDAR 17773), reversed, ruling in favor of Merolillo.  In reaching their decision, the court found that the cause of death was critical toward the determination of whether Merolillo’s conviction for murder was proper.  The court found also that the prosecution had not established that Garber really was unavailable, so his testimony, regardless of its injurious effect on Merolillo, should never have been admitted at trial and it went straight to the case against Merillilo.

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.

For more information about the right to cross examine a witness, click on the following articles:
  1. How Does the Sixth Amendment Affect My Right to Cross-Examine a Witness’ Knowledge About a Lab Report?
  2. Confrontation Clause of Sixth Amendment Not Violated When DNA Evidence Is Admitted
  3. Court Violates Murder Defendant’s Right to Cross-Examine Expert by Admitting Opinion without Expert Testifying
For case summaries of selected cases our firm has handled, click here.

Contact Greg Hill & Associates
Client Reviews
"Thank you so much for putting so much effort in this case. We really appreciate it and we are happy that all turned out well." S.A., Torrance
"Greg Hill did an outstanding job on every level. He was efficient, thorough, knowledgeable, courteous, responsive & brilliant. He welcomed my input and my concerns. . . from the first conversation to the last - I always felt 'it mattered' to him." S.C., Rolling Hills Estates
"Thanks again for your hard work. We want you to know that we are very appreciative of all that you have done [on our son's] behalf. With warmest regards." L.H., Torrance
"Dear Greg, Thank you again for all your help. Your professionalism and thoroughness is greatly admired. I will definitely recommend you to my friends if they ever need legal help." V.L., Carson
"Thanks for investing in my case. I talked to other attorneys out there and they had an arms-length of attitude, but not you. Your intensity and interest helped a lot." C.R., Pomona