Role of the Medical Examiner as an Expert Witness in Court

Michael Iliescu, MD

Introduction
The fact witness: can testify only to firsthand knowledge of the situation at issue The expert witness is given the power to interpret the facts and draw inferences that a jury would not be competent to draw

Subpoena
Subpoena duces tecum: the court commands a witness to produce at the trial physical evidence pertinent to a case like
Documents Papers Articles Records Exhibits Radiographs Microscopic slides

What to do when subpoenaed

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Determine the legality of subpoena Respond by contacting the attorney whose name appears on it Understand the requirements stated in the subpoena Understand the professional liability involved in subpoena and failure to respond (failure to respond is considered contempt of court) Attempt to resolve issues concerning appearance and testimony prior to trial (e.g. Problems with credential, legal ramifications concerning trial issues)

What to do when subpoenaed

Discuss the financial aspects of your response (time, research, travel) 7. Find what the attorney would like to discuss or present in trial 8. Prepare a CV 9. Prepare note, diagrams, records that will be requested by attorney 10. Discuss all potential problems and pitfalls in the case
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Time of Appearance
If subpoena for trial ME is requested to appear at the beginning of the trial, but after
Discovery Jury selection Motions Expert witness qualifications

Physical evidence
The physical evidence (autoptic evidence) consists of:
Articles Records Exhibits Other things that jurors can see and inspect

Such evidence is called exculpatory evidence

Physical evidence
Types of physical evidence:
Real evidence (a weapon, clothing, laboratory instruments, drugs, etc) Documentary evidence: writings, inscriptions, tax records, lab logs, copies of accounts or billings, tapes, medical records, lab manual, QA procedures, lab operating manual Demonstrative evidence which is visual or auditory evidence prepared to help the judge and the jurors to understand the testimony

Demonstrative evidence
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Blackboard and chalk (to be placed directly in front of the jury) Flip-charts (can be retained as evidence) Overhead projector Prepared diagrams, drawings and charts Radiographs, MRIs on a CD etc Anatomic models; human torso, skeletons, organ models Organs: fixed or plastinated Photographs Microscopic slides

Demonstrative evidence
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Analogies (for ex. the use of five steel balls on stringed apparatus to illustrate the transmission of energy in a rear-end collision) Reenactment (in court or other designated location) Experimental demonstrations Notes Audiovisuals 35 mm slides (best used in conjunction with diagrams) Slide projection combined with diagrams

Problems in presentation- instructions for an ME

Dont bore the jury Dont present highly technical evidence Avoid improper analogy, e.g., He was chained like a dog Dont try to deliberately prejudice or shock the jury with demonstrative evidence that is out of place in the courtroom Dont use a poorly constructed experiment Never use poor photos, artistry, prerecorded tapes etc Avoid the appearance of being an advocate at the expense of your objectivity Let the attorney be advocate for your demonstrative evidence and opinions

The Dos
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Witness should make arrangements with attorney as to the time and place for pretrial meetings and be punctual Witness should inform the attorney about new findings from review and research Witness should become familiar with the courtroom Witness should be pleasant and have a good attitude and present evidence with confidence Witness should wear conservative clothing

The Dos
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Witness should be relaxed on the stand Witness should face the jury while testifying Witness should use terminology that is understood by jury Witness should answer only the questions asked Witness can/should disagree with other authorities Witness must give impartial testimony and must be a good communicator

Trial preparation
Pretrial meeting with attorney: to discuss tactics and case details Review of old or new case materials allows the expert to find errors or moot points Bring to court as little as possible (the court may order the expert witness to turn over everything he/she brought to court that day)

Medicolegal and Other Specimens or Samples- questions that may be asked

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Name of person from whom the sample was obtained Laboratory and other identification numbers Time and date of collection Location of collection Demographic information

Medicolegal and Other Specimens or Samples- questions that may be asked

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Description of sample Proper collecting container Sufficient quantity of sample Proper sealing and safeguarding Warning labels for infectious materials Request for specific type of analysis

Laboratory errors questions

What is your laboratory error rate? Were the collection procedures followed correctly? Was the sampled properly identified and labeled? Was there any computation and transmission errors? Was there possibility of contamination? What system do you use to monitor errors and technicians?

Trial traps and correct answers

Q: Are you certified or licensed A: Not all of us need or are required to be licensed or certified in this subject, nor is there any means in this country to allow this to happen, but I am qualified by education and experience Q: What are you being paid for your testimony? A: I am not being paid for my testimony. I am being reimbursed for my professional knowledge, experience, research results, time, services and studies in preparing for this case

The End