Working with and Crossing the Pathologist in a Gunshot Case

Home , Manner of death

such as cancer or a heart attack. This is not identical to Is It Really a Homicide? the manner of death. “Manner of death” is the opinion of a medical Working With and examiner or coroner as to what classification should Crossing the Pathologist be used when stating how a person died. These classi - fications are homicide, suicide, natural causes, acci - In a Gunshot Case dent, or undetermined. Being a coroner is not the same as being a forensic pathologist — though in some jurisdictions the same per - son holds both positions. Some large cities have a medical examiner’s (ME) office run by a forensic pathologist who forensic pathologist testifies in every homicide will determine both cause and manner of death and do so trial, the only exception being the rare case in in a professional manner, guided by science. Awhich the prosecutor contends a murder took On the other hand, in most locations a coroner is an place even though a body has never been found. This elected official, not necessarily a physician, whose duty is article contains some basic information to help defense to certify the manner of death. This is an important dis - attorneys examine a case before trial, decide whether tinction to be aware of in jurisdictions in which political they need to retain their own forensic pathologist, and considerations may enter into a coroner’s determination effectively conduct trial cross-examination of the doctor of cause or manner of death. Sometimes the coroner’s who performed the autopsy. determination will not be supported by the physician who conducted the autopsy. I. What is a forensic pathologist? Manner of death seems to be a straightforward deci - Pathology is the study of disease. A forensic pathol - sion (and in a homicide prosecution, the prosecutor will ogist is a physician who examines a corpse and reaches certainly represent it as such). It is important to remem - an opinion as to the reason a person died. In order to ber, however, that it is an opinion by a professional, and qualify as a forensic pathologist, the doctor will have that in some cases reasonable people may disagree. Every completed four years of medical school, a three-year criminal defense lawyer must be prepared to challenge residency in pathology, and a one-year fellowship in cause or manner of death in the appropriate case. forensic pathology. A good forensic pathologist should be completely “Cause of death” is defined as the actual reason a independent of the prosecutor or law enforcement person died, such as exsanguination due to a gunshot or officers. The ethics of forensic pathologists’ profession stab wound, death by ingestion of a toxic substance such demand that they perform their duties on behalf of as poison or a heroin overdose, or death from diseases the patient, which in this case is the deceased.

BY DEJA VISHNY

18 WWW.NACDL.ORG THE CHAMPION Unfortunately, many doctors who per - This list of materials is much more issues and will help him to prepare to form autopsies are improperly influ - than the prosecutor will have. If the meet with the doctors on the case. enced by law enforcement officers or defense team can obtain some of these the prosecutor and conform their items by doing an open records IV. Meet with the doctor who interpretive findings to the state’s the - request or ordering them from the performed the autopsy or ory of the case. ME’s office, the prosecutor may not will testify for the state. know at an early stage in the proceed - In many locations, the forensic II. Obtain and review all the ings how thoroughly the defense is pathologist who performed the autopsy proper documents. reviewing the case. This can be a huge will meet with defense counsel. In fact, At the outset of the case, defense advantage for the defense. Why? many are happy to do so and comment counsel must make sure she has all of the Prosecutors often do not closely on how rarely they are consulted by the relevant materials related to the autopsy. review their cases until shortly before lawyers on the case. However, some Some, but not all, of these documents are trial, and if they want additional time pathologists will refuse to meet with found at the ME’s office. What docu - to hire experts, an aggravated judge defense counsel unless the prosecutor is ments should the defense attorney may deny the request to do so. present. If so, the defense team must obtain? The list below is comprehensive, The defense must pay careful make a strategic decision regarding but not all items exist in every case. The attention to all the details in the docu - whether or not to meet under those cir - defense should collect these documents: ments when reviewing them. Often cumstances. If the doctor who performed there will be material in the docu - the autopsy was privately retained or con - v Autopsy protocol. ments that will help the theory of tracted by the county, she may refuse to defense apart from the conclusions meet unless the defense pays for her time. C v Medical investigator’s report. regarding the cause of death. The doc - In order to know what questions to R tor who performs the autopsy will ask at the meeting, defense counsel O Death certificate. conduct an external and internal should form a theory of the case — inso - S v S

examination of the deceased. Here are far as it relates to the medical evidence. - v Radiographs. examples of information to look for in The meeting with the doctor will be E the documents: Does the deceased most productive if the doctor shows the X A v Scene photos taken by police have gang tattoos? If the theory of autopsy photos on a screen and can show or ME’s investigator. defense is that the defendant fired in defense counsel exactly what she saw M I

self-defense, look for abrasions and when she conducted the autopsy. There is N

v Digital version of autopsy photos contusions to the deceased’s body that no dumb question. Defense counsel I — both taken by police and can be indicative of a fight. What should ask about everything he does not N

the ME’s office photographer. do the toxicology reports show regard - understand and have the doctor explain G

ing whether the deceased was drunk or the basic findings and terminology. Doctor’s handwritten high at the time of death? Are there Many times lawyers will complain A

notes if these exist. metabolites that indicate recent that the doctor told them one thing at P

drug usage? Sometimes the ME’s scene the meeting and said something differ - A Dictation tapes by the doctor. 1 investigator will document witness ent when testifying at trial. A good prac - T

v H statements reported to them by tice is to take notes and read them back O v Toxicology report. the police that do not appear in any to the doctor to ensure they are correct. L

police report. Lawyers and doctors speak two different O Histology report. languages, and it is important to under - v G III. Study forensic pathology. stand exactly what the doctor means. I v Tissue sample and slides When reviewing the materials, be After returning to the office, counsel S if they exist. sure to understand what all of the ter - should send the doctor an email thank - T minology means. Look up all unfamil - ing the doctor for her time. Counsel v Body fluid samples. 2 iar terms. Lawyers who are lucky should include a copy of the notes and enough to have doctors as friends or ask the doctor to please inform counsel v Inventory of what was sent to doctors in the family should ask them if anything is written down incorrectly. a crime lab for analysis. questions. An excellent book for those This can provide great impeachment if who are not familiar with the human the doctor changes her findings while v EMT reports. body is Clinical Anatomy for Lawyers .3 testifying on the witness stand. These Many terms can be looked up for free notes may be provided to the prosecutor, v Photos of clothing of the deceased. using the Google search engine. and thus counsel must be careful not to “Innerbody” is an interactive website include notes that reflect the defense v Hospital reports (if deceased was that allows visitors to view anatomic theory of the case or anything that could treated at hospital before death). locations of the body. 4 harm the defense. A few basic texts are helpful in On the other hand, defense counsel v Prior medical records of reviewing cases. Spitz and Fisher’s should not be afraid to ask questions. deceased if available. Medicolegal Investigation of Death is a Often the prosecutor may already know classic text. If the deceased was shot, the defense theory from the client’s state - v Copies of email correspondence defense counsel must consult DiMaio’s ment to police. For example, if the client among law enforcement Gunshot Wounds .5 Reading these texts was charged with homicide and told officers, the prosecutor, and the will give defense counsel a good basic police that the deceased killed himself by doctor regarding the case. working knowledge of some of the a self-inflicted gunshot wound, the theory

WWW.NACDL.ORG DECEMBER 2015 19 of defense is not going to be a surprise. Lexis and Westlaw may also lead to help - sive head trauma (AHT) cases, the doc - The defense wants to know why the doc - ful information, such as revealing if the tor is called up to determine whether a tor states she has reached a firm conclu - expert has been involved in civil cases or child died from a fall or from being sion as to manner of death and how she has been sued. physically abused. The medical evidence explains the autopsy findings. Criminal defense attorneys in the can be ambiguous because either mech - The doctor will testify in court that area may be able to help. They may have anism could have caused the child’s the findings are to a “reasonable degree of tips, stories, or perhaps can just share death. The doctor — told by police that medical certainty.” Defense counsel information about the nuances of the the client confessed to abusing the child should ask the doctor what that phrase prosecution’s doctor and provide helpful — concludes the trauma was caused by means. Forensic pathologists and other information for the cross-examination. physical abuse and opines the manner of medical experts have debates about how death is homicide. to define that phrase, which is strictly VI. Research the legal issues Expert testimony is admissible legal and not medical in nature. Some will concerning forensic under Rule 702 because an expert has say it means over 51 percent, others will pathologist testimony. unique qualifications that enable him say 95 percent, and some will refuse to When the doctor who performed to render an opinion that is outside the put a number on it. In any case, it may the autopsy is unavailable at trial, the knowledge and experience of the aver - differ significantly from “beyond a rea - prosecutor will call a surrogate physician age juror. In the case of forensic sonable doubt,” and the answer to that to testify regarding cause of death. This pathology, the doctor’s medical train - question may provide great fodder for the raises Confrontation Clause concerns. ing and the medical findings at autop - closing argument. Thus far, the courts that have ruled on sy allow the doctor to draw conclu - Confrontation Clause challenges have sions regarding cause of death. But T V. Investigate the doctor’s differed in their analysis of what is per - basing an opinion on a confession or S

I credentials, publications, missible. All have permitted the testimo - police interviews with witnesses does

G and presentations. ny, however, as long as the surrogate has not call for specialized medical train -

O In addition to case-related docu - reviewed the old reports and photos, and ing. Defense counsel should move to L ments, the defense attorney should obtain the surrogate is testifying about her own suppress any opinion testimony that is

O a copy of the testifying doctor’s curricu - opinion regarding cause of death based based on nonmedical facts because it 6 H lum vitae (CV) and review it closely. If on that review. invades the province of the jury. State T concerns arise about its accuracy, have an Limits exist, however, concerning v. Tyler and State v. Sosnowicz 9 have A investigator confirm the doctor’s educa - what is admissible in court. The autopsy followed this approach. P

tional and medical training and board protocol itself is inadmissible under the

A certifications. According to estimates, up Confrontation Clause. Other documents VII. Use cross-examination to to 30 percent of all professionals falsify or might also be inadmissible depending show the opinion of the G puff their résumés. on the circumstances. Furthermore, prosecution’s expert N

I Some résumé items may raise red while courts have currently permitted supports the defense

N flags. For example, if the doctor the surrogate doctors to testify, theory of the case. I attended a foreign medical school, the Confrontation Clause litigation is still a Often the forensic pathologist called

M defense must make sure it is a legiti - hotly contested area, and the U.S. by the state can give testimony that is

A mate educational institution. Some Supreme Court has not ruled on the helpful because it is consistent with the X schools are “diploma mills” and have admissibility of this testimony. An excel - defense theory of the case. In these situa - E

- been put out of business or had other lent article on this subject is The tions, defense counsel probably does not

S scandals. Defense counsel can use the Confrontation Clause and Forensic need her own expert to testify because she S Google search engine to discover avail - Autopsy Reports — A “Testimonial” by can accomplish the same objective

O able information. Marc D. Ginsberg. 7 through cross-examination. R Has the doctor been disciplined? There may also be cases in which Consider the following example: C Counsel should check with the medical the testifying doctor cannot have an The client (defendant) is charged with society. Some doctors, after licensing opinion other than what is in a nontesti - first-degree murder for shooting the issues, malpractice lawsuits or patient fier’s lab report. For example, in a “Len deceased in the head. The autopsy complaints in another medical specialty, Bias” homicide, the diagnosis may be shows that the deceased was shot in switch to pathology to earn a living. that the cause of death is a drug over - the left occipital region of his head just The CV will contain a list of pub - dose. That is not a physical finding in an behind the left ear, and that the bullet lished papers and speeches given by autopsy report; the doctor must also rely travelled through the skull and exited the doctor. The defense team must on the testing done by a forensic toxicol - out the right parietal side of the head. review these carefully to see if the doc - ogist. Many times the prosecutor will The client tells defense counsel he was tor has published any articles on topics not call this person as a witness. Defense selling marijuana and drove to meet that are relevant to the defendant’s counsel should move to exclude the the buyer, who sat in the back seat to case. If some of the material is rele - forensic pathologist’s testimony on con - make the purchase. The purchase vant, defense counsel must obtain frontation grounds and argue it violated turned out to be a robbery, and the copies of the articles to see if they can the U.S. Supreme Court holdings in deceased pulled a gun on defendant. be used to impeach the findings in the Melendez-Diaz v. Massachusetts and The client was able to disarm the defendant’s case. Bullcoming v. New Mexico .8 deceased by grabbing the gun from the A Google search of the prosecutor’s Other legal issues arise in cases deceased’s hand. The deceased had the expert may reveal cases in the news in when the doctor’s opinion regarding car door open when the gun fired; he which the expert offered a questionable cause or manner of death is based on fell out of the car onto the curb and opinion. Running the expert’s name in nonmedical facts. For example, in abu - died instantly. The defense theory of

20 WWW.NACDL.ORG THE CHAMPION the case is that the defendant disarmed ways to him, that would be will be prepared for re-direct as well. the deceased and fired the gun instinc - consistent with your findings, The prosecutor may not even go into tively in self-defense. wouldn’t it? this area: chances are the prosecution The prosecutor thinks he has a A: Yes, that would be consistent. has a theory of the case and will great case and tells the jury that the doggedly stick with it, returning to deceased was shot “in the back of the Q: So if my client says that he dis - using the phrase “back of the head.” head.” Defense counsel’s cross-exami - armed the deceased just as the Defense re-cross can be very brief and nation can establish that the shooting deceased was getting out of the to the point: happened exactly the way the defen - car, that is consistent with your dant (who will later testify about what findings? Q: Doctor, let’s go back to using my happened) says it did, and defense A: Yes. head as an example. Can you counsel will use this in her argument please again show the jurors to bolster the client’s credibility. When using the forensic patholo - where the bullet entered? gist to demonstrate that the theory of A: (Doctor demonstrates). Q: The prosecutor asked you where defense is consistent with the physical the entry wound was on Mr. facts, the defense lawyer must remem - Q: This is what many people call Deceased? ber to use the phrase “consistent with” the side of the head, right? A: Yes. as she lays out the facts supporting her A: Yes. view of the case. A doctor will never be Q: The entry was in what is called able to testify as to how events such as Q: And while it’s true that some the occipital region of the head? a shooting unfolded and will remind people might refer to this as the C A: Yes. the jury that the autopsy is done when back of the head, it’s a different R the body is in the anatomic position location than back here (counsel O Q: (Counsel using her own head as (lying face up on the autopsy table). In places her finger in center rear of S S

a model). So the bullet went in order to show the jury that she knows head)? -

right here, where I’m pointing, what she is talking about, the defense A: Yes. E on the side of the head? lawyer should bring this out before she X A: Yes. asks the questions above: Q: Certainly no one would call this A the side of the head? M I

Q: And then exited on the other Q: When you perform an autopsy, A: Yes. N

side of the head, right here the body is in what’s called the I

(using own head as a model), so anatomic position? VIII. Does the defense need N

the bullet traveled on an even A: Yes. to hire its own expert? G

plane, going from left to right? If defense counsel is concerned that A: Yes. Q: This means the body is face up the prosecution doctor’s cause or man - A

on the autopsy table? ner of death determination or the details P

Q: So the bullet went from the left A: Yes. of the prosecution doctor’s analysis con - A side of the head just behind the tradict the theory of defense, she should T ear to the front on the opposite Q: That is the position in which hire her own expert to review the case. H side of the head? you measure the bullet entry, She must be sure that all of the informa - O A: L Yes. exit, and angles of the bullet tion gathered is provided to the defense O path? expert to review. Also, counsel should Q: The bullet traveled pretty even - A: Yes. send the defense expert additional infor - G I

ly, at just a very slight upward mation, such as crime scene photos, wit - S angle? Q: And of course, from examining ness statements, recorded interroga - T A: Yes. the bullet path, it would be tions, or other items that will bear on the impossible to tell what position expert’s analysis. Q: This angle would be consistent the shooter and the deceased Defense counsel must carefully with two people of about equal were in relative to each other? choose the expert. It is a good idea to height, both being seated in a A: Correct. talk to colleagues in the field about car at the time the shot was which expert will suit the defendant’s fired? Q: But what you can say is whether case. If the issue is gunshot wounds, the A: Yes, it is consistent with that. or not a particular set of facts as defense should hire someone who is pro - to how the people and gun were ficient in that area; if the issue is AHT, it Q: And it’s also consistent with positioned is consistent or not is essential to talk to lawyers who have someone in the front driver seat with your findings? handled AHT cases and know which of the car shooting at a person A: Yes. experts are suitable for those cases. In in the back seat of the car? some cases the defendant may need A: Yes. In order to prepare this type of more than one expert; in AHT cases the cross, defense counsel should act out defense often brings multiple experts Q: Now if the person who fired the scenario and make sure it fits the into the case. the gun had just gotten the defense theory of what occurred. Defense counsel must research the gun in his hand and the gun Defense counsel should try out several defense expert as carefully as she went off immediately toward scenarios to get a feel of what the pros - would research the prosecution expert. someone who was turned side - ecutor might also try to do so that she Counsel must vet the expert’s qualifi -

WWW.NACDL.ORG DECEMBER 2015 21 cations. Defense counsel wants to about their fee. The defense doctor will also leaves stippling, i.e., pin - know how the expert performs during of course acknowledge that she is point abrasion marks left on cross-examination. The defense team being paid for her work. There is noth - the skin’s surface when must use the Google search engine as ing wrong with helping the expert unburnt gunpowder particles well as research the expert through develop a more complete answer, such strike the surface of the skin. Lexis or Westlaw to see if something as responding to the district attorney negative can be found in case law. by saying that she is paid for her time 4. How doctors determine if a It is important to review prosecu - just as every other person in the court - wound is a contact, near contact, tor manuals or canned cross-examina - room (or like the prosecutor’s expert). or intermediary wound, or a tions circulated in prosecutor organi - wound of indeterminate range. zations regarding crossing the expert IX. Study the fundamentals on a particular area or specific cross or in gunshot wound cases. v Contact wounds will be sur - avenues of attack on particular Gunshot wounds are one of the rounded by a muzzle imprint, experts. 10 If defense counsel thinks the most common causes of death in which is an injury left on the canned prosecution cross-examination homicide cases. It is important to be surface of the skin by the bar - is effective against her expert, she may familiar with some of the fundamen - rel of a gun when it makes want to retain a different person to tals in gunshot wound cases, such as contact. It can take the form review the case. the following: of either abrasions (scrapes) After reviewing the defense doctor’s or contusions (bruising). findings, it is time to decide whether the 1. Distinguishing an entry wound from Often it has the shape of the doctor will be called as an expert witness an exit wound. end of the gun. It is not T at trial. If the jurisdiction requires coun - always present, but if it is then S

I sel to file a report by the expert, discuss v Frequently the police cannot defense counsel knows it is a

G the content of the report with the doctor tell the difference between an contact range gunshot

O and review it before it is in final form entry and an exit wound, and wound. L and provided to the state. Be prepared they conclude a person was shot Contact or near contact

O for the prosecutor to challenge the more times than they actually wounds usually have an irreg -

H admissibility of the testimony and to were. This can lead to false wit - ular shape of radiating mar - T argue its admissibility under Daubert 11 ness statements and false con - ginal lacerations due to the A or Frye .12 Even though evidence such as fessions coached by police. It is fact that gas goes under the P

opinion regarding cause and manner of really difficult to determine this skin and blows up from there.

A death may seem straightforward in scenes where there is blood This is often referred to as a enough, prosecutors will often file all over the place and poor stellate-shaped wound. These G Daubert challenges just to have the lighting. A marginal abrasion is kinds of wounds are most N

I opportunity to conduct a pretrial dis - a general marker of an entrance commonly on heads and far

N covery hearing. Counsel must be sure wound. Many forensic patholo - less often on other body parts. I the defense expert understands what gists will encourage their inves - Soot or searing is visible

M occurs at a Daubert /Frye hearing and is tigators to withhold judgment around a contact wound.

A prepared to testify that her findings and on this issue. Intermediate range X conclusions are legally admissible under wounds are defined by the E

- the prevailing standard. 2. Determining the entrance point and presence of stippling. There

S Testimony by the defense expert bullet track/path through the body, may be soot observed in some S needs careful preparation. Counsel and understanding what it means for of them, but this is not essen -

O should go over the questions she will defendant’s case. tial. Intervening objects, such as R ask her witness and listen to the way clothing or hair, will absorb the C the witness answers. Counsel should v Bullet path, as illustrated above, soot. Intermediate and more review all of the exhibits that will be may support or not support a remote wounds will have a cir - submitted and discuss how they will be witness’s version of events. cular abrasion with an abrasion used. It is essential that defense experts ring surrounding the entry know how to translate “medicalese” 3. The significance of stippling and the point. However, contact and into English so that the judge and presence of soot. close-range gunshot wounds jurors will understand the testimony. can also have marginal abra - The defense lawyer must not forget to v When a firearm is discharged sions. Marginal abrasions are think of the questions the prosecutor close to an object, it will leave often easier to identify in more will ask and listen to the way the soot on that object. Soot is the remote wounds. defense expert will respond to them on residue left behind from Sometimes a noncontact cross. If defense counsel thinks a par - unburnt gun powder when a wound to the head can have the ticular answer is problematic, she bullet is fired. The soot is appearance of a contact wound, should not hesitate to discuss it with actually the residue from the particularly in the case of key - the expert. She may decide to pre- combustion of the gunpow - hole entries (where the injury empt the line of attack by asking it der, just like soot from other looks similar to an old-fash - during direct examination, or to let the fires. Burned and unburned ioned keyhole). In these cases, prosecutor ask a fruitless questions on gunpowder particles can also the bullet enters the skull at a cross. For example, prosecutors will be left on skin and in tissue shallow angle and a stellate- often cross-examine defense doctors along the wound pathway. It shaped wound ensues.

22 WWW.NACDL.ORG THE CHAMPION Indeterminate range means that no significant because contact and near that the doctor did not have access to characteristics around the wound permit contact entry wounds over bone this information prior to making the doctor to draw any conclusions as to frequently have a stellate shape. the diagnosis. how far the gun barrel was from the target at the time of the shooting. v The deceased has a semicircle 2. People who commit suicide rarely This hypothetical illustrates the shaped abrasion on her right leave a note or tell others of their plans. importance of these issues: Police offi - temple, the same side of her face A common stereotype jurors may cers are called to a shooting. The caller as the gunshot wound, which is believe is that suicidal persons leave is a hysterical male who says his wife consistent with a gun muzzle. notes, but statistics show that about 75 just shot herself. When police arrive percent do not. The prosecutor may they see a female lying on a bedroom v The deceased had very thick hair, also call in bereaved family members floor with a gunshot wound to the rear which can absorb soot that is to testify about how happy the of the head in the occipital region, just invisible to the naked eye. The ME’s deceased was, how the deceased had so behind the right ear. The police are office disposed of the hair and much to live for, and they did not see suspicious of the husband because he therefore it was not available for any signs of depression. While courts is behaving in what they decide is an microscopic inspection. should not admit this useless unusual manner. They think he is testimony, many will, and doctors will lying. They think he killed her. The v The husband’s version of what acknowledge that families frequently ME’s investigator talks to police, who occurred is consistent with have a hard time accepting that a inform him that they believe the death how the wife could have person committed suicide. is a homicide. The doctor who per - died if she shot herself. C forms the autopsy concludes the cause 3. Medicine is an art as well as a R O of death is skull fracture and exsan - v The doctors cannot determine science, and doctors can disagree. guination from the gunshot wound, whether the death was a This is important because the state S S

and the manner of death is homicide. homicide or suicide. will elicit testimony from its expert -

He concludes that the death is a homi - and argue that its doctor has an E cide because (1) he does not observe One possibility is to cross-exam - advantage because she performed X soot or stippling, (2) the wound is in ine with the theory that even if the the autopsy and saw things with A the indeterminate range, and (3) due forensic pathologist who performed her own eyes. This can be M I

to the wound location and angle, the the autopsy made accurate observa - expanded to talk about the N

deceased could not have shot herself. tions, the wound angle, although importance of getting a second I

Based on the doctor’s opinion, the unusual, is possible. Thus, this could opinion. Probably every juror has N prosecutor charges the husband with first- have been a self-inflicted gunshot heard that a person diagnosed with G degree homicide. The husband’s defense is wound. Defense counsel should a serious illness should get a that the wife committed suicide. demonstrate a position that works second opinion before having A

Consultation with defense experts is with the facts and get the doctor to surgery or other invasive P critical in this case; the prosecution acknowledge that angle is possible. treatment. This line of questioning A experts will change their conclusions. If the defense is presenting its own will resonate with the jurors. T The doctors retained by the defense experts, cross-examination is crucial H disagreed with the conclusion regarding to show that their opinion is accurate 4. There is no deadline by which the O L

range of fire and believed the wound was and the ME’s office made mistakes. doctor must come to a final O a contact/near contact wound. They Here are some sample cross-examina - conclusion. Final protocols can wait examined the autopsy photos, reports, tion chapters that can be used to cross- for a thorough investigation of all G I radiographs, scene photos, and other examine the state’s forensic patholo - medical and relevant collateral facts. S collateral materials and made the follow - gist. While some of these chapters are T ing conclusions: unique to this set of facts, many are 5. Preserving evidence, taking photos, chapters that will be useful in many and providing documentation are v The scene photos taken by the cases in which cause or manner of important so that the case can be police before the body was cleaned death is disputed. reviewed by others. The defense show soot in the wound. The attorney can use classic texts and get doctors also saw soot in the wound 1. The examining doctor did not have the doctor to agree with the texts in the photos taken after the body sufficient facts. Defense counsel when she asks questions on this was cleaned. They were able to find should point out that forensic topic. Point out that their office uses photographs of other contact/near pathology is a type of medical high quality digital photography. If wounds with a similar appearance diagnosis, and a proper diagnosis the doctor ever does private in cases in which no dispute often requires not just observation of consulting, discuss how he has existed about the range of fire. symptoms but having access to a reviewed reports and photos to come thorough medical history. If to his own independent conclusions v There were visible bullet fragments information is available in a possible in other cases. in the radiographs that were suicide case that the person has not recovered or noted in the previously attempted suicide or that 6. Being thorough and recovering autopsy protocol. the person is not taking prescribed relevant evidence are essential. One antidepressant medications, this can suggestion is that the defense lawyer v The wound is a stellate shape and is be important to reaching a set up the doctor and get him to not a keyhole wound. This is diagnosis. Counsel should point out acknowledge the importance of

WWW.NACDL.ORG DECEMBER 2015 23 being thorough, complete and soot and prevent stippling. Point nesses who answer “yes” and “no” to accurate in his procedure, report, out how small soot can be and that even the most reasonable questions. and conclusions. Another suggestion it is much more visible through a Counsel should be prepared for them is to go through the importance of microscope. The doctor did not to give lengthy explanations to show evidence recovery — particularly use magnifying glasses or examine off their superior knowledge; the les - bullets and fragments — and the body or the hair through a son they are trying to impart as the documenting everything in the microscope — despite one being defense challenges them is that they protocol. This is crucial when available at the ME’s office. are the experts and can outdo defense important facts are omitted counsel at every turn. The defense from the report. 11. Impeach the doctor who claims lawyer should not interrupt or argue only her opinion is accurate because with them because the defense will 7. Point out objective facts that are not she performed the autopsy. When simply seem rude. noted in the autopsy report or the doctor says she had the best In this situation defense counsel evidence that was not recovered. vantage point because she should conduct a cross-examination Sometimes doctors will not recover performed the autopsy, impeach that will lead jurors to conclude that all the bullet fragments or will that assertion from the autopsy the state’s doctor has an overly high testify concerning details that they protocol. The protocol will note the opinion of himself, thinks of himself fail to note in their reports. Using wound measurements. If the wound as right at every turn, and is so egotis - the hypothetical mentioned earlier, is small, give the doctor a ruler and tical that he cannot acknowledge he the radiographs showed bullet have her draw the wound length to made a mistake. Counsel can lay this fragments in the hair of the scale as mentioned in the autopsy foundation by building up the author T deceased, but these fragments were protocol. Point out how small the of the learned treatise. One way to do S

I not recovered or mentioned in the wound is, for example .25 of an this is to point out that the book is on

G autopsy protocol. It is always good inch x .25 of an inch. Thus, defense the shelf at the ME’s office and that the

O to point out when someone does a counsel can demonstrate that the doctor and other forensic pathologists L less than thorough and competent soot deposited in the region of the on staff often rely on it or quote it.

O job. This can also include a failure wound would be smaller and can Let the jurors know that the text is

H by the doctor to review the point out to the jury that it is not found in ME offices all over the coun - T scene photos or learn collateral visible to the naked eye. Bring out try. Get the doctor to admit that the A information from witnesses prior to that the doctor did not look at it author is considered prestigious and P

reaching his conclusions as to cause using a microscope or other greatly experienced. Find out if the

A and manner of death. method of enlargement. The digital doctor wrote any articles in which he photograph the defense expert quoted the treatise, and point out if he G 8. Confirmation bias. The medical reviewed, on the other hand, is did. After doing this, impeach the doc - N

I examiner was at the scene, the doctor greatly enlarged, and it is easier to tor’s opinion with the text. If the doc -

N reviews his report before performing see smaller details. tor still disagrees or states that the text I the autopsy, and the report notes is outdated or irrelevant, there are

M that homicide is the suggested 12. Failure to preserve evidence for probably some jurors who will con -

A manner of death. Thus, it has already testing. The doctor knows that the clude that he has an overly high opin - X been concluded by someone else that hair could be preserved and ion of himself and will doubt his word. E

- this is a homicide before the doctor examined microscopically by a lab Finally, if the defendant or defense

S even touched the autopsy table. or another forensic pathologist, counsel’s office has the funds, counsel S but he failed to preserve it. The should hire as many experts as the

O 9. Other findings consistent with doctor may claim that he is budget permits. When an opinion is R client’s version. Assume that the unaware of any lab that does a challenged, the state may be able to call C client states he saw the deceased particular type of testing. The more than one physician from a ME’s hold a gun to her head and then doctor should admit on cross- office if the head of the office reviews shoot herself. If there are abrasions examination that he is not familiar the assistant’s work. It is always better to the face that look fairly fresh and with the practices of every forensic to have more experts or the last word, the shape is consistent with a gun laboratory in the country. Another and it may very well be the thing that muzzle, counsel should point out challenge is pointing out that there wins the case for the defense. that if a person was holding a gun are always changes in science, and © Deja Vishny, 2015. All rights to her temple and suddenly turned when evidence is not preserved, it reserved . her head, the abrasion to the skin cannot be tested later. Use DNA as would be consistent with that a parallel example; innocent people Notes action. Defense counsel should do were convicted before DNA 1. Doctors dictate as they perform an this while demonstrating with her testing, but preserved evidence has autopsy, and generally they destroy the own finger and turning her head, led to many exonerations. tapes after they write the report. If a or she can use a model or exhibit defense attorney is in the case early of some type. Defense counsel may impeach a enough, he should obtain a court order to doctor when his conclusions differ preserve the recording. 10. Soot deposits on intervening from something written in a well- 2. The defense must find out if tissue objects. An intervening object known treatise, such as DiMaio’s samples, slides, and bodily fluids exist. If between the muzzle of a gun and Gunshot Wounds . Lawyers should not so, they should be reviewed by the an entry wound can collect the expect doctors to be compliant wit - defense expert.

24 WWW.NACDL.ORG THE CHAMPION 3. SAMUEL HODGE & J ACK HUBBARD , C LINICAL ANATOMY FOR LAWYERS (2012). 4. Go to www.innerbody.com. 5. SPITZ AND FISHER ’S MEDICOLEGAL INVESTIGATION OF DEATH (Werner Spitz ed., 4th ed. 2005) (table of contents and preface found at http://www.washing - tondecoded.com/files/spitz.pdf); VINCENT DIMAIO , G UNSHOT WOUNDS (2d ed. 1998). 6. See, e.g. , People v. Dungo , 286 P.3d 442 (Cal. 2012); State v. Maxwell , 9 N.E.3d 930 (Ohio 2014); State v. Navarette , 294 P.3d 435 (N.M. 2013). 7. Marc D. Ginsberg, The Confrontation Clause and Forensic Autopsy Reports — A ‘Testimonial,’ 74 LA. L. R EV . 117 (2013). 8. See Melendez-Diaz v. Massachusetts , 557 U.S. 305 (2009); Bullcoming v. New Mexico , 131 S. Ct. 2705 (2011); State v. Van Dyke , 2015 Wis. App. LEXIS 189 (March 2015, recommended for publication); State v. Lui , C 315 P.3d 493 (Wash. 2014). R 9. Courts followed this approach in O State v. Tyler , 852 N.W.2d 522 (Iowa Ct. App. S S

2014) and State v. Sosnowicz , 270 P.3d 917 -

(Ariz. Ct. App. 2012), substituted opinion at E State v. Sosnowicz , 2012 Ariz. App. LEXIS 133 X (2012), modified by State v. Sosnowicz , 2012 A Ariz. App. LEXIS 118 (July 2012). M ERMOT ARRETT I

10. See, e.g. ,D G , N NAT ’L CTR . FOR PROSECUTION OF CHILD I

ABUSE , O VERCOMING DEFENSE EXPERT TESTIMONY N

IN ABUSIVE HEAD TRAUMA CASES (2013), G

http://www.ndaa.org/pdf/Abusive%20Head Trauma_NDAA.pdf. This is a guide to cross- A

examining defense experts in AHT cases, P

which includes specifics regarding some A well-known physicians who have testified T for the defense in these cases. H 11. Daubert v. Merrell Dow Pharms., Inc. , O 509 U.S. 579 (1993). L O 12. Frye v. United States , 293 F. 1013 (D.C. G Cir. 1923).

n I S About the Author T Deja Vishny, a member of the NACDL Board of Directors, is a criminal de - fense lawyer who has practiced with the Office of the Wisconsin State Public Defender since 1980, where she heads the Homicide Practice Group.

Deja Vishny Wisconsin State Public Defender Office 819 N. 6th St., Ninth Floor Milwaukee, WI 53203 414-227-4130 E-MAIL [email protected]