Testifying for the defense

Now that I’m semi-retired, I do the occasional private consultation.  I still work part-time as a ME at a regular ME office, but at any given time I usually carry three or four consult cases.  Most, though not all, of my consult cases are for the defense with respect for criminal cases.  I don’t do many torts, for some reason, but they are again primarily for the defense.

I have been asked on the stand why I favor doing defense cases as a private consultant.  I thought I’d address that.  If nothing else, I know that counsel in some trial will peruse my blog, and will see this, so maybe I can answer this off the stand (though I’m happy to repeat it on the stand).

Here’s the deal.  Even now that I’m semi-retired, most of my cases are regular ME cases.  Medical Examiners are not ex parte.  In other words, we don’t work for the prosecution *or* the defense (though some District Attorney’s don’t believe this).  As an ME, I *don’t care* who wins in a case.  I *don’t care* if someone gets convicted or is found not guilty.  I’m just there to get up on the stand, provide my findings, and go back to my office.

But… here’s the rub.  As an ME, I am almost always called by the prosecution.  It makes sense.  If my findings are not favorable to the prosecution, the DA is almost never going to take the case to court.  In doing so, he or she would have to impeach the pathologist who works for the state.  What this means is that in the normal course of things, the tendency of a lot of pathologists is to write reports *as if* they were going to be used by the prosecution.  I see this a lot in the interpretation of things like petechiae in the conjunctivae and the diagnosis of strangulation.   It is possible to develop an unconscious pattern of interpretation that slightly favors prosecution.

The other thing is that, largely, we tend to go unquestioned.   Only in a small minority of cases has there ever been an opposing forensic pathologist on one of my cases.  In 38 years, I can count the number on my fingers, though my memory may be lacking.  So, if we develop this pattern of interpretation, it will likely go unchallenged, and become a habit.  That can lead to mistakes, and if there *is* an opposing expert, to some uncomfortable moments.

I started taking defense cases as a private expert while still an active Medical Examiner in order to counter this.  Examining a case from the perspective of a *critic* makes me a lot more careful, and has made may reports better, I think.  When I write a report,  I ask myself “OK, Bill, how would you criticize this if you were ex parte for the prosecution?”  and then “OK, now how would you criticize this if you were hired by the defense?”   When I perform an autopsy, I ask myself. “If I were criticizing this case for money, what would I say I haven’t done that I should do?”  It has made me a *lot* more circumspect in my findings and much more open to admitting ambiguity.  Some of the posts I’ve done on photomicrography are the result of this.  The case of the myofibroblastic tumor of the humerus is one such case.  Twenty years ago, I would have looked at the radiograph and assumed it was not a traumatic lesion.  I would have been right, but I asked myself “A defense expert would say I should have done histology on that thing.”  So I did.  And I’m glad I did because it was an interesting finding. Working for the defense does not mean that you are trying to force some particular perspective favorable to the defense.  Even when you are ex parte, you are there to find the truth, not to push a narrative.  But it does often mean reading a Medical Examiner report critically.  For a longer explanation of this, see here.

I’ve found that it works better with juries as well.   Given a piece of evidence, you can say that it is diagnostic of something, that it is strongly suggestive of something, that it is weakly suggestive of something, or that is can rule something out.   My observation is that Medical Examiners who only testify for the prosecution seem to have a greater tendency towards “diagnostic of something” while those of us who take defense cases tend to move more towards the “strongly suggestive” or “suggestive” type statements.  Admitting that little bit of ambiguity doesn’t seem to hurt with juries.  I’ve had prosecutors tell me that when I get up on the stand and admit that I’m not God, juries tend to believe me more.  And, juries seem to be able to handle the implications of a little bit of ambiguity.

So, my personal belief is that taking on defense-related private cases makes me a better pathologist when it comes to being called by either defense *or* prosecution.  I am better able to criticize my own cases before someone else does it on the stand.

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