Forensic Evidence Seminar

Forensic Evidence Seminar

Section 1

Spring 2001

Professor Leo H. Whinery

Post Mortem Determinations

Robert Simpson and Edward Stump

April 20, 2001

This paper focuses on the legal and scientific factors relevant to a forensic pathologist’s testimony as to post mortem determinations: cause of death, separation of death due to disease, from death due to external causes, identity of the deceased, time of death, the nature and consequences of the wounds, and the type of wound inflicted.

Expert Witnesses, In General

Under Federal Rule 702, “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” FRE 702[1]. (See also Oklahoma Evidence § 2702[2]) “An intelligent evaluation of facts is often difficult or impossible without the application of some scientific, technical, or other specialized knowledge. The most common source of this knowledge is the expert witness.” Notes of Advisory Committee on Rules. “The rule accordingly recognizes that an expert on the stand may give a dissertation or exposition of scientific or other principles relevant to the case, leaving the trier of fact to apply them to the facts.” Id. “While the admissibility of such evidence is, and remains, subject to the general principles of Rule 403,[3] the revision requires that expert testimony be "reasonably reliable" and "substantially assist" the fact-finder.” Committee notes. (See Woods v Fruenhauf Trailer Corporation, 765 P.2d 770 (Okla. 1988) applying the “assist” standard for admissibility of expert testimony for scientific evidence.)

The old standard (still followed in some jurisdictions) for the admissibility of novel scientific evidence is the “Frye” test. The court in Frye v The United States[4] held that the scientific principle or discovery from which expert testimony is derived “must be sufficiently established to have gained general acceptance in the particular field to which it belongs.” Winery, Courtroom Guide to the Oklahoma Evidence Code 1998-99, at 566 (West 1998) (quoting Frye). The Supreme Court, however, ruled that the “Frye” test did not survive the enactment of Federal Rule 702 and adopted a different test for determining reliability in Daubert v. Merrill Dow Pharmaceuticals.[5] The criteria established by the Court is:

(1) Has the scientific theory or technique been verified through testing?

(2) Has the theory or technique been subjected to peer review and publication?

(3) What is the known or potential rate of error in applying the theory or technique?

(4) Has the theory or technique received general acceptance in the relevant scientific community?

Whinery, Courtroom Guide at 567 (quoting Daubert). In Oklahoma, for example, the Court of Criminal Appeals rejected the “Frye” standard and adopted the Daubert “factors” in Taylor v State.[6]

Additionally Federal Rule 703 states, “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.” F.R.E. 703 [7]. (See Oklahoma Rules of Evidence § 2703.[8]) The court will determine whether data is of a type “reasonably relied upon” in the similarly to how the court can determine that the witness has personal knowledge of the subject matter of his testimony. Whinery Courtroom Guide at 582. “For example, if a physician is called upon to testify as an expert concerning the cause of a condition and states that his opinion is based, in part, on the reports of physicians diagnosing the cause of similar conditions, the physician would be required to testify that these reports are ordinarily used by other physicians in diagnosing the cause of the condition.” Id. (See Taylor v State [9]) As to Physician’s Diagnoses, Whinery explains:

In Ake v. State[10] the defendant pled insanity as a defense. On appeal, the defendant contended the trial court committed reversible error in refusing to permit his expert to state his expert to state the diagnosis of other physicians which he relied upon in reaching the opinion of the sanity of the defendant at the time of the commission of the crime. The State contended the diagnosis of the other professionals constituted inadmissible hearsay. However the court rejected the State’s argument on the ground that under 2703 it is no longer required that all data be admitted into evidence, so long that it is the type reasonably relied upon by experts in the particular field in forming opinions or inferences on the subject. The court also agreed with the defendant that the disclosure of the underlying facts or data upon which an expert bases his opinion is permissible under 2705 on cross-examination. However, since the physicians whose diagnoses were available and could be called to testify, it concluded that the trial court had not abused its discretion.

Whinery, Courtroom Guide at 584. (See also Harjo v State [11])

Under Federal Rule 704, “testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.[12] (See Oklahoma Rules of Evidence Rule 2704[13]. Expert testimony is admissible under section 2704 of the Oklahoma Code if the specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact at issue. Whinery, Courtroom Guide at 588. The Court of Criminal Appeals, for example, in Romano v State[14] held that the opinion of a blood splatter expert that the defendant was in close proximity to the decedent was not impermissible opinion under 2704. Whinery, Courtroom Guide at 588. However, the opinion that the person wearing the bloody clothing, identified as the defendant’s clothing, was not a “passive observer of this stabbing” effectively told the jury that the defendant murdered the victim and was an impermissible opinion on the ultimate legal issue in the case. Id. As Whinery explains, 2703 should be read in conjunction with 2701[15], 2702, and 2703. An expert should be permitted to give his expert opinion even if it embraces an ultimate issue to be decided by the trier of fact, provided it meets the requirement of 2702 that the opinion will assist the trier of fact in determining a fact in issue. Whinery, Courtroom Guide at 595.

Pathology

True comprehension of medicolegal investigation requires an understanding of pathology, which is the scientific discipline dealing with postmortem study, and a familiarity with the protocol and documentation generated by a postmortem investigation. Cause of Death as Determined from Autopsy [16] The forensic pathologist’s postmortem practice allows his opinion testimony to be more definitive. Id. “The pathologist’s findings are scientifically demonstrable, and the after-the-fact perspective gives the pathologist the unique ability in the world of medical experts to state an opinion in unequivocal terms based on facts rather than probabilities.” Cause of Death. “It is the factual nature of the findings that sets the forensic expert apart and makes his testimony and opinion so valuable to a case.” Id.

Pathology is the scientific field dealing with the kinds of procedures and techniques employed in death investigation. Id. [17] The College of American Pathologists defines pathology as the branch of natural science which treats the causes and nature of disease, together with the anatomical and functional changes incident thereto. Id. Pathology is the medical specialty which contributes to the understanding of diseases and medical conditions by way of information obtained from laboratory examinations made upon the human body or samples taken therefrom. Cause of Death. The medical specialty field of pathology consists of two major divisions, anatomical and clinical. Id. Anatomical pathology concerns itself with the gross and microscopic study of body tissues submitted as surgical specimens or obtained by autopsy. Id. Clinical pathology deals with hematology, chemistry, microbiology (including bacteriology, virology, parasitology, and mycology), urinalysis, serology, immunology, blood banking, and special endocrine studies. Id. These two divisions are inextricably intertwined. Id. A forensic pathologist investigates violent, sudden, suspicious, unexpected, and medically unattended deaths for the express purpose of determining the cause and manner of death. Id. Investigation of these type of deaths is often deemed a matter of “public health and safety,” as many states statutorily set up procedures and record keeping rules for medicolegal investigations by public officials such as Medical Examiners. See Oklahoma Statutes Title 63. Public Health and Safety, Chapter 37 § 933 . Establishment of Office of the Chief Medical Examiner.[18]

Forensic pathologists approach death investigation approaches death investigation differently from a normal treating physician. Cause of Death. Frequently, the clinical history of the deceased does not exist or is not available. Id. Thus, the forensic pathologist may not be able to correlate his findings to clinical observations, diagnosis, and treatment. Id. The forensic pathologist, importantly, may not be predisposed in any way, exposing his value in litigation because of his increased objectivity in reporting findings and postulating the causes of those findings. Cause of Death. Objectivity and ability to take the “causation” step make the forensic pathologist an integral and essential factor in personal injury litigation, insurance litigation, and criminal cases such as homicide, rape, drug abuse, and drunk driving (inter alia). Id.

Caselaw

Based in part on the sixty degree temperature of the apartment in which the corpse was found the medical examiner properly testified as to an approximate time of death as between 2 days and one week, with a best estimate of three to four days, allowing the prosecution in a homicide case to include this testimony as evidence of “opportunity” for the defendant to commit the crime. Romano v Gibson 2001 WL 12052. (10th Cir. 2001)

Medical Examiner testified that anal swab taken from deceased was positive for sperm and that deceased had peri-postmotem tears which indicated the tears were sustained immediately after or during death. Further the medical examiner testified that deceased had also sustained a peri-postmortem vaginal tear which was consistent with a trauma that could be caused by the insertion of a plastic toy like the one found in deceased’s vagina. This testimony, coupled with DNA evidence, placed defendant at the crime scene and allowed the prosecution to show that defendant intentionally killed deceased, and that deceased’s death was not an accident resulting from consensual autoerotic behavior. Welch v State, 2 P.3d 356, 367 (Okla Crim. App. 2000).

Medical examiners testimony regarding the “pain an suffering” that a minor child would have experienced a the result of her head and abdominal injuries found not speculative, and the court reasoned that “while the extent to which a particular person feels pain varies, we accept as fact the proposition that it is possible to determine whether, as a general rule, that pain is more or less severe. [The opinion testimony] assisted the jury in determining whether [the child’s] death was heinous, atrocious, or cruel.” The appellate court ruled that trial court did not err in overruling the defendants trial objection and admitting the testimony. Malicoat v State, 992 P.2d 383, 395 (Okla. Crim. App. 2000).

Admission of post-mortem photographs into evidence found admissible if their content is relevant and their probative value is substantially outweighed by their prejudicial effect. The mere claim of undue gruesomeness or duplication is insufficient where the burden is on the defendant to prove prejudice. Pennington v. State, 913 P.2d 1356, 1369 (Okla. Cr. App. 1996)

Opinion evidence on ultimate issue on ultimate issue is generally admissible. 12 O.S. § 2704 (OSCN 2001). However, the “otherwise admissible language” must be read in context with 12 O.S. §§ 2403 (OSCN 2001), 2701, 2702. Hooks v. State, 862 P.2d 1273, 1278 (Okla. Crim. 1993). While expert witnesses can suggest the inferences which jurors should draw from the application of specialized knowledge to the facts, opinion testimony which merely tells the jury what result to reach is inadmissible. Id. Expert’s testimony based on photographs of bloody clothing that the defendant was in very close proximity to the decedent and may have participated in the stabbing was admissible testimony. However, testimony that defendant, based on this same evidence, was “not a passive observer of this stabbing” was inadmissible. The Oklahoma Court of Criminal Appeals stated that the expert’s testimony was error because it overstepped the bounds of proper blood spatter expert opinion and constituted prejudicial personal opinion. “It is one thing to say a defendant is in close proximity to a violent attack and quite another to state definitely a defendant participated in the attack.” Further, the admission of the expert’s testimony is more prejudicial than probative because of the substantial weight and credibility of an expert opinion and invited the expert to express his personal opinion as to the defendant’s guilt. (the court ultimately held, however, that the error did not amount to a miscarriage of justice, rendering the error harmless beyond a reasonable doubt.) Romano v. State, 909 P.2d 92, 109-111 (Okla Crim. App. 1996)

[1] FRE 702 has been amended effective Dec. 1, 2000: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.”