me expert witness court

8/2/2019 Me Expert Witness Court

1/19

Role of the Medical Examiner as an

Expert Witness in Court

Michael Iliescu, MD


2/19

Introduction

The fact witness: can testify only to firsthand

knowledge of the situation at issue

The expert witness is given the power tointerpret the facts and draw inferences that a jury

would not be competent to draw


3/19

Subpoena

Subpoena duces tecum: the court commands awitness to produce at the trial physical evidence

pertinent to a case likeDocuments

Papers

Articles

Records

Exhibits

Radiographs

Microscopic slides


4/19

What to do when subpoenaed

1. Determine the legality of subpoena

2. Respond by contacting the attorney whose name

appears on it3. Understand the requirements stated in the subpoena

4. Understand the professional liability involved in

subpoena and failure to respond (failure to respond isconsidered contempt of court)

5. Attempt to resolve issues concerning appearance andtestimony prior to trial (e.g. Problems with credential,

legal ramifications concerning trial issues)


5/19

What to do when subpoenaed

6. Discuss the financial aspects of your response (time,

research, travel)

7. Find what the attorney would like to discuss orpresent in trial

8. Prepare a CV

9. Prepare note, diagrams, records that will berequested by attorney

10. Discuss all potential problems and pitfalls in the case


6/19

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


7/19

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


8/19

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


9/19

Demonstrative evidence

1. Blackboard and chalk (to be placed directly in front of the jury)

2. Flip-charts (can be retained as evidence)

3. Overhead projector4. Prepared diagrams, drawings and charts

5. Radiographs, MRIs on a CD etc

6. Anatomic models; human torso, skeletons, organ models7. Organs: fixed or plastinated

8. Photographs

9. Microscopic slides


10/19

Demonstrative evidence

10. Analogies (for ex. the use of five steel balls on stringedapparatus to illustrate the transmission of energy in a rear-endcollision)

11. Reenactment (in court or other designated location)

12. Experimental demonstrations

13. Notes

14. Audiovisuals15. 35 mm slides (best used in conjunction with diagrams)

16. Slide projection combined with diagrams


11/19

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 withdemonstrative evidence that is out of place in the courtroom

Dont use a poorly constructed experiment

Never use poor photos, artistry, prerecorded tapes etcAvoid the appearance of being an advocate at the expenseof your objectivity

Let the attorney be advocate for your demonstrative

evidence and opinions


12/19

The Dos

1. Witness should make arrangements with attorney as to

the time and place for pretrial meetings and be punctual

2. Witness should inform the attorney about new findingsfrom review and research

3. Witness should become familiar with the courtroom

4. Witness should be pleasant and have a good attitude and

present evidence with confidence

5. Witness should wear conservative clothing


13/19

The Dos

6. Witness should be relaxed on the stand

7. Witness should face the jury while testifying

8. Witness should use terminology that is understood

by jury

9. Witness should answer only the questions asked

10. Witness can/should disagree with other authorities

11. Witness must give impartial testimony and must be

a good communicator


14/19

Trial preparation

Pretrial meeting with attorney: to discuss tactics and case

details

Review of old or new case materials allows the expert tofind 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 tocourt that day)


15/19

Medicolegal and Other Specimens or

Samples- questions that may be asked1. Name of person from whom the sample was obtained

2. Laboratory and other identification numbers

3. Time and date of collection

4. Location of collection

5.Demographic information


16/19

Medicolegal and Other Specimens or

Samples- questions that may be asked6. Description of sample

7. Proper collecting container

8. Sufficient quantity of sample

9. Proper sealing and safeguarding

10.Warning labels for infectious materials

11. Request for specific type of analysis


17/19

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 transmissionerrors?

Was there possibility of contamination?What system do you use to monitor errors andtechnicians?


18/19

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 tohappen, 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


19/19

The End