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MEDICOLEGAL DEATH INVESTIGATION AND THE CRIMINAL JUSTICE SYSTEM

THE VALUE OF MEDICAL EXPERTISE IN DEATH INVESTIGATION

Vincent Di Maio3

Medical expertise is crucial in death investigations. It begins with body examination and evidence collection at the scene and proceeds through history, physical examination, laboratory tests, and diagnosisin short, the broad ingredients of a doctor’s treatment of a living patient. The key goal is to provide objective evidence of cause, timing, and manner of death for adjudication by the criminal justice system.

The value of medical expertise is apparent in the screening process. In one county, for example, 8,000 cases are reported to the medical examiner's office, but only 2,000 are accepted. Screening, which eliminates three-fourths of potential cases, must be handled in a scientifically defensible manner by people with medical training, knowledge, and objectivity. The medical examiner's office is especially important in subtler cases of criminal activity, where there

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Dr. Di Maio’s presentation was impromptu as he took the place of Dr. Hirsch who was unable to attend the meeting.



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7 MEDICOLEGAL DEATH INVESTIGATION AND THE CRIMINAL JUSTICE SYSTEM THE VALUE OF MEDICAL EXPERTISE IN DEATH INVESTIGATION Vincent Di Maio3 Medical expertise is crucial in death investigations. It begins with body examination and evidence collection at the scene and proceeds through history, physical examination, laboratory tests, and diagnosisin short, the broad ingredients of a doctor’s treatment of a living patient. The key goal is to provide objective evidence of cause, timing, and manner of death for adjudication by the criminal justice system. The value of medical expertise is apparent in the screening process. In one county, for example, 8,000 cases are reported to the medical examiner's office, but only 2,000 are accepted. Screening, which eliminates three-fourths of potential cases, must be handled in a scientifically defensible manner by people with medical training, knowledge, and objectivity. The medical examiner's office is especially important in subtler cases of criminal activity, where there 3   Dr. Di Maio’s presentation was impromptu as he took the place of Dr. Hirsch who was unable to attend the meeting.

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is a possibility of a missed homicide. Such cases often are not aggressively pursued by either police or non-medical coroners. Confronted with the death of a 30-year-old woman, who dies apparently of a heart attack, a lay coroner would most likely not do an autopsy, but a medical examiner would, given its medical implausibility. Similarly, many lay coroners do not autopsy burned bodies, but a medical examiner would investigate the possibility of homicide masked as an accident. By interviewing, the medical examiner might uncover evidence of a crime. A medical examiner brings important skills to the interview of next of kin and others who provide a medical history. Scientific Evidence in the Courtroom: Introductory Comments David H. Kaye One of the most important issues facing the legal system is the development of a credible and objective process to determine which deaths to investigate, how to investigate them, what constitutes a thorough investigation, and how to keep suspicious deaths and homicides from being overlooked. Accurate evidence from a death investigation should be used in court to convict the guilty and protect the innocent. Our current legal system has two problems. The first is its adversarial nature: expert witnesses can be pressured, or selected, to take one-sided positions. The courtroom can be turned into a battle of experts, which is highly confusing to a jury. How can the system be structured to produce objective evidence that will not produce such battles? A second problem arises from the disparity in resources between criminal prosecution and defense. It is a rarity for the defense to mount its own death investigation with the same resources as the prosecution. If the prosecution's coroner or medical examiner is negligent, biased, or inept, miscarriages of justice are inevitable. In an egregious example, a pathologist in Texas single-handedly performed 450 autopsies a year for 40 Texas counties. Exhumations of some of the corpses revealed an absence of marks on the bodies, indicating that no autopsy had been performed. The system needs to be structured in

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such a way as to prevent miscarriages of justice or to capture them early in the process. The Prosecutor’s Perspective Jeff Dusek San Diego County has a medical examiner's office with six board-certified forensic pathologists and 15 death investigators. It has a toxicology laboratory with six bachelor’s-level toxicologists overseen by a doctoral-level toxicologist. It has access to forensic dentists, forensic entomologists (who can determine time of death by the types of fauna on the corpse), and a forensic anthropologist for skeletal remains and it has sexual-assault response nurses for homicide victims who have been or are suspected of having been sexually assaulted. After each homicide or suspected homicide, the medical examiner and an investigator go to the scene. Their tasks are to examine the body and to survey the scene for vegetation. The medical examiner directs the death investigator and assumes responsibility for transporting the body from the scene to the medical examiner's office. Photographs of the scene are taken by the medical examiner and the police. At autopsy, a second medical examiner signs off on the report; this is a critical backup system in case the original medical examiner is not available for testimony. A prosecutor looks to the medical examiner's office for accuracy, promptness, and the ability to state opinions clearly in court. Accuracy must prevail as to the manner of death, the cause of death, and the time of death. Because of California’s legal requirements for a quick preliminary hearing, San Diego County requires its medical examiner’s office to perform the autopsy within 24 hours of finding the body. The autopsy report must be generated within the 10-day period after someone has been charged and before his or her preliminary hearing. San Diego County allows a defense medical examiner to participate in or watch an autopsy. The latter rarely occurs because of the timing; the defendant is usually unable to identify and retain a medical examiner within 24 hours. The prosecutor’s advice to the medical examiner is to simplify the investigation for the jury, make it understandable, and make it persuasive. Visual aids and diagrams

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are valuable. It is also important for medical examiners to restrict their testimony to what they are comfortable with without extending themselves in a way that leaves them open to cross-examination by a defense lawyer. All the features of a strong and credible medical examiner’s office were on display in the notorious case of child abduction. A suspect was charged even before the child’s body was found. When the body was found several days later, the death investigation had to proceed quickly during the 10-day window before a preliminary hearing. The medical examiner, presented with a badly decomposed body, summoned the on-call forensic entomologist and dentist. The dentist was able to identify the victim and ruled that suffocation was the cause of death; some of the victim’s teeth were missing, and the forensic dentist attributed that to their falling out from the pressure of suffocation. The case was successfully prosecuted on the basis of the quality of the medical examination. The only testimony that the jury requested be reread was that of the medical examiner and the entomologist. When asked why they concluded as they did, the jurors responded that "the medical examiners were the objective fact finders in the case. We relied upon them." The Defense’s Perspective Barry Scheck There is a crisis in this country with respect to the quality of death investigations. Many errors lead to convictions of innocent people. The Innocence Project was created in 1992 as a nonprofit legal clinic representing inmates with legitimate claims of innocence. The project undertakes postconviction DNA testing of samples from each case. If it does not find a match with the DNA from the crime scene, the project works pro bono to secure convicts’ release from prison. Since 1992, the project has exonerated 125 people wrongfully incarcerated. The project has exposed substandard practices even in accredited crime laboratories. The field of medicolegal death investigation should work to widen as much as possible what the legal profession calls “scientific facts”. Scientific facts are observations that do not require interpretation, such as the position of the body, identifying marks, and

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results of analysis of blood and other physical evidence. There should be no differences between the defense perspective and the prosecution perspective on scientific facts. The only medical examiner findings with potential for debate should be the manner and cause of death, because they require interpretation of facts. One particular subject in which the quality of death investigations needs vast improvement is childhood death from shaken-baby syndrome. That syndrome is an extremely serious form of abusive head trauma associated with high morbidity and mortality (Duhaime et al., 1998). It occurs after a child has been subjected to acceleration, deceleration, and rotational forces that produce a cluster of intracranial, intraocular and cervical-spinal injuries. Shaken-baby syndrome has been difficult to study with postmortem examination partly because the syndrome spans many specialties, including pediatrics, neuropathology, and biomechanics. There continues to be disagreement about the nature and type of impact needed to produce the syndrome. An assessment by the National Academy of Science might help to defuse scientific controversy. There may continue to be scientific disagreement about causation, but several people have been wrongfully charged or convicted on the basis of incompetent death investigations. To ensure the quality and integrity of death investigations, medical and criminology professionals should form institutions that are truly independent. It is not sufficient for a program to have accreditation and training. The institutional framework should be deeply embedded in academenot be a stepchild of medical schoolsand it should be independent, not under the control of the prosecution. Placement in academe will help to ensure sound science and ensure that the latest technological and scientific developments are incorporated into criminal forensic investigation. The Role of the Crime Laboratory in Medicolegal Death Investigations Susan Narveson The crime laboratory provides assistance in two key parts of medicolegal death investigations: personal identification and

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determination of cause of death. Personal identification can be accomplished through analysis of DNA and fingerprints. Determination of the cause of death can be aided by laboratory analysis of firearms, toolmarks, controlled substances, and toxic substances. The crime laboratory can also draw on national databases of DNA (the Combined DNA Index System), fingerprints (the Automated Fingerprint Identification System) and ballistics (the National Integrated Ballistics Identification Network). Factors that affect whether a medical examiner or coroner office takes full advantage of a crime laboratory include its proximity and working relationships, knowledge of which laboratory services are available, the workload of the crime laboratory, and knowledge of the laboratory's requirements for sample collection, packaging, and preservation. Careful handling of specimens is important in guarding against contamination. The utility of the crime laboratory in death investigations can be improved by promoting effective partnerships with medical examiner and coroner offices; by encouraging discussion of the range, value, availability, and use of crime laboratory capabilities; and by supporting the development of procedures that maximize the contribution of the crime laboratory's expertise. Adequacy of Expertise and Services Available to Death Investigations Mary Fran Ernst Several types of professionals apart from the medical examiner or coroner serve death investigations. Each type has its own credentialing organization, but a general observation is that the professions are aging. The medicolegal death investigator is an agent of the medical examiner and is generally the first point of contact for law enforcement. That person is responsible for determining the details of the death and for assisting in the scientific identification of the deceased and in locating and notifying next of kin. The American Board of Medicolegal Death Investigations has two levels of credentials. There are 635 registered and another 60 board-certified

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death investigators. They are an average of 40 years old—somewhat younger than the rest of the professionals in the field. Toxicologists can be certified by the American Board of Forensic Toxicology. The board has two levels of certification: board-certified toxicologist and forensic-toxicology specialist. About 185 people are certified at one of those levels. Forensic odontologists apply dental science to the identification of human remains and make bite-mark comparisons by using both physical and biologic evidence. They are required to have a doctorate in dental science and specialized forensic training. About 90 people are certified by the American Board of Forensic Odontology. Forensic anthropologists are physical anthropologists who assist in the identification of skeletal remains. They can determine whether the remains are of human or animal origin; the deceased person’s sex, age, and race; marks of trauma and occupational stress; and health status. Many are also trained in archaeologic procedures. They are often used in facial reproduction when only the skull of the deceased person remains. The 64 people certified by the American Board of Forensic Anthropology are an average of 44 years old. Eight forensic entomologists are certified by the American Board of Forensic Entomology. They study insects and other arthropods to identify the time of death, and, to help to determine the location of death, they can analyze whether fauna are indigenous or foreign to the site where the body was found. There is a crucial need for investigators at the scene to collect specimens properly and preserve them for transport to one of those eight certified forensic entomologists. DISCUSSION Infrastructure Funding Several participants reiterated the need for more federal funding for infrastructure (Kurt Nolte, Marcella Fierro, Randy Hanzlick, Victor Weedn). Because both prosecution and defense value the accuracy and integrity of death investigations, they are natural

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allies in to advocating for higher funding levels for infrastructure under the NFSIA (Tom Andrew). Wrongful Convictions and Oversight Mechanisms Greater understanding of the circumstances of wrongful convictions is imperative (Richard Bonnie, Barry Scheck, Garry Peterson). The Innocence Project is undertaking systematic study of the nature of forensic science errors in its cases of successful exonerations; the study is also examining errors in witness identification and false confessions (Barry Scheck). Through several state task forces, the American Judicature Society is looking at wrongful convictions to determine how to improve the overall system (Susan Narveson). Professionals involved in death investigations need to be more active in trying to understand the problem of wrongful convictions and in supporting organized efforts to expedite disciplinary actions incompetent members of the profession and those engaged in fraudulent practices; in several cases, years elapsed before successful action was taken, although many were aware of, but failed to organize action against, the incompetent or fraudulent member (Barry Scheck, Vincent Di Maio, Tom Andrew). Judicial authorities are not aware of the importance of valid scientific testimony (David Kaye, Garry Peterson), and the field has not organized itself sufficiently to undertake disciplinary action against bad actors (Vincent Di Maio, Tom Andrew). There needs to be greater oversight of the field of death investigation by the medical and judicial communities through independent institutions (Barry Scheck, Tom Andrew). New York established a Forensic Science Review Board, which includes judges and defense lawyers, to oversee all crime and forensic laboratories in the state (Barry Scheck). That so many professional credentialing boards are involved in the field of death investigation means that peer review has a potential role in disciplinary action (Richard Bonnie). Organizational Placement of Medical Examiner Offices There are many instances of potential or actual conflict of interest between coroner or medical examiner offices and law enforcement (Ellen Clark). In some counties and states, the coroner is

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also the district attorney; and in many locations, the medical examiner hires death investigators that are currently employed or retired law-enforcement officers (Ellen Clark, Mary Fran Ernst). During training, educators should make students aware of the potential for conflict of interest (Ellen Clark) and the limits of their knowledge in a particular field and the understanding of the roles played by other professionals in the legal process (Richard Bonnie). To ensure their independence, objectivity, and integrity, medical examiner offices should be removed from departments of public safety (Garry Peterson). They should be independent agencies associated with academic institutions (Barry Scheck). Forensic Epidemiology Forensic epidemiology is a relatively new subspecialty of epidemiology (Steve Hargarten, Kurt Nolte, Marcella Fierro). It began to emerge in importance in the context of toxic-tort litigation, in which epidemiologists would discern patterns of cases that were not detected by physicians (David Kaye). The field branched into hospital deaths by examining correlations between staff and times of death (Vincent Di Maio). It later grew with public health interest in family and interpersonal violence and in substance abuse (Marcella Fierro, Carl Parrott). Several high-profile medical examiner offices have created positions for forensic epidemiologists in research or surveillance. For example, New Mexico recently hired an epidemiologist to work on a bioterrorism mortality surveillance project. The Maryland medical examiner’s office has a staff epidemiologist to study deaths in firefighters and an epidemiologist in the Office of the Armed Forces Medical Examiner, is developing a military mortality database. (Kurt Nolte). Virginia’s forensic epidemiologist performs surveillance of child fatalities and family violence (Marcella Fierro); the surveillance function emerged from awareness that 29 children in the state witnessed their mothers’ murders, and the surveillance data were critical in drawing attention to a hidden public health problem and the importance of protective orders and stalking laws (Marcella Fierro).