Opinion
The Pathologist as an Expert Witness
Harry E. Emson, MA, MD, FRCPC
Harry E. Emson, MA, MD, FRCPC, is emeritus professor of pathology at the University of Saskatchewan and holds a diploma in medical law and ethics. He is based in Saskatoon, Saskatchewan.
In the past, pathologists in most parts of Canada could make a choice as to their involvement with the legal system, and its degree. Pathologists could choose whether or not to do medicolegal autopsies either in a coroner’s or medical examiner’s system. However, in the more remote and less populated regions, involvement with the legal system was not always possible to decline and circumstances could arise anywhere in which pathologists, from no desire or choice of their own, found themselves involved with cases that proceeded to court hearings and in which they were summoned to give evidence. For all of us, it is necessary to consider this eventuality in advance and to define our beliefs and attitudes in the event of becoming involved in the legal system.
The legal system in Canada, in those of its aspects with which a pathologist may become involved, is almost entirely based on the adversarial principle. Lawyers are trained in this way from their first day in law school. It permeates and imbues their lives, and many of them find it difficult or impossible to think in any other way. This principle believes that a legal case is best solved by reducing it to a single simple question and deciding the answer by a court hearing before a judge, often sitting with a jury, and conducted as a gladiatorial contest in which the parties to the controversy are represented by lawyers – “advocates” acting as “counsel.” The questions are put to witnesses in various ways, and the answer to each individual question is sought in opposing terms – yes or no, right or wrong, black or white. On the sum of these answers, the judge or jury decides the answer to the question posed: for example, did A kill B under the circumstances defined by the law as murder?
Pathologists do not think in this way, nor do any physicians. They seek a much vaguer and ill-defined concept of the total truth of a situation, which in many cases remains fuzzy around its edges, despite all attempts at clarity and precision. They find the adversarial method alien, frequently frustrating, unproductive, and often unpleasant. However, when summoned to court, we are on the law’s grounds and, to a degree, are subject to its rules. Commitment to the adversarial system is implicit from the first formal contact, the subpoena to a witness, that identifies the witness as being summoned because he or she is thought able to give evidence for one side of the case or the other; it explicitly conscripts the pathologist onto one side, one team, usually that for the prosecution.
It is very easy to find fault with the adversarial system, and to pick holes in it, until one tries to find a better alternative; and in any event, this option is not in practice open to us. It does break down very obviously in some of its applications, and to some extent, the law has accepted this and sought alternatives, notably in family law, with which the pathologist is rarely concerned. In the courtroom, the adversarial system entitles counsel to the most minute inquiry into the credentials, training, experience, and beliefs of the witness, which is legitimate; although questions based on false implications of the type, “When did you stop beating your wife?” may also be raised.
The desire of the law for a single simple answer and the belief of the pathologist in complex and interacting multiple causes may be a source of frustration. I remember from my early years in Saskatchewan a case in which a young woman died. She had been beaten more spectacularly than seriously, was drunk, and was exposed to a cold winter night. I stated that these factors all contributed to her death and that I could not quantify the contribution of each. I got into deep trouble in the witness box for sticking to this opinion rather than isolating a single cause of death. I think it was fortunate that in those days I was a stubborn young man – some said pig-headed – and the case did encapsulate for me at an early age some of the problems I was going to face if I chose to continue in medicolegal work.
It may be difficult for the pathologist not to become a partisan, for instance, in the death of a child following sexual assault. The pathologist is never in possession of all the facts of a case; he or she has performed a minute and exact analysis of a small section of the evidence, which may be conclusive in such matters as a cause of death but totally lacking in other circumstances surrounding the death. If the facts are clear, their interpretation may be the subject of different opinions. For instance, regarding orbital hematomas in death from a gunshot wound of the head, are these the result of antecedent external assault or of increased intracranial pressure? Or how did an overdose of a toxic substance come to be taken? – a question better addressed within the expertise of a toxicologist. Whenever pathologists step outside their very narrow bounds of certainty, they should bear in mind, irrespective of their personal religious belief, the words of Oliver Cromwell: “I beseech thee, in the bowels of Christ, think it possible that ye may be mistaken.” There is one type of counsel, much more dangerous than the old exponents of bluff and bluster, who will profess incompetence in the subtleties of medical evidence, flatter the witness into an inflated belief of his or her own omniscience, and, having lured the pathologist onto the tip of a bough of speculation, briskly saw it off at its proximal end. One phrase that the pathologist should never be afraid of using is, “I do not know.”
There is another, antithetical belief in the role of the expert witness to which the law pays some attention. This is to regard the expert witness as an independent person bringing education, training, and experience to the court as a whole rather than to one side of the case or the other, in the hope that this may assist the court to come to a just conclusion. Although this is sometimes more of a token genuflection than a true commitment, the Goudge Inquiry in Ontario did emphasize its importance. The expert is neither a partisan nor an advocate, hired by one side or the other; though under the adversarial system, counsel for either side will endeavour to extract from the expert’s evidence those facts and opinions that favour their side of the case. The pathologist is independent, impartial, and objective, a witness for the court, not for either of the parties to the case. This is an austere, and some might say self-righteous, belief, but I think it is the correct one.
This is the ethos and attitude in which I believe. I have tried to practise and teach this principle all my professional life and to swim against the strong current that endeavours to involve me as an adversary. This is not easy when the Crown and defence counsel are clearly adversaries. Other pathologists have adopted the opposite view and consciously accepted their recruitment to a “team,” most commonly that of the Crown and the prosecution. The perception of the independent and impartial expert may be diminished when the first contact with the legal system, that is, the receipt of a subpoena, is to appear as a witness for either the defence or Crown. In the official view, the witness is believed capable of giving evidence to support one side of the case or the other. For the pathologist, this most commonly means for the prosecution, and any notion of impartial objectivity can be firmly squashed at the outset.
It would make things far easier for the pathologist if he or she were summoned by the court, rather than by one side of the case or the other. I understand that this possibility is open, but I have never known it used. Its use would not, and should not, prevent the subpoena of other expert witnesses by the opposing sides to the case, particularly where evidence is of opinion and interpretation rather than of fact; but it would endorse the ideas of independence, non-partisanship, and objectivity that I believe to be integral to the expert. However, in practical terms, and from my experience, I think this is most unlikely to happen. The adversarial attitude is too deeply ingrained in the law and the thinking of lawyers. The best that we can hope for is that pathologists educated in the requirements of the criminal justice system will practise in the manner and in the beliefs that I have suggested are correct and manage to resist the forces propelling them into the adversarial attitude, as well as the temptations of its adoption.
There is one risk that the pathologist as witness will continue to run under any system, and that is of perceiving himself or herself as the righter of wrongs, the crusader for the downtrodden, the knight on the white charger standing for truth and justice against evil and oppression. This is a heady intoxicant and as dangerous as all intoxicants taken at the wrong time in the wrong place. It may well lead in short order to domination of opinion over fact, wilful distortion of evidence, and the attempted imposition of one’s own judgment over that of the court. I would be the last person to suggest that courts, judges, and juries are infallible, but they are less fallible than individual judgment fortified by a stiff dose of self-delusion. The pathologist as witness needs a mastery of the facts, an admission of where the facts are partly known or unknown, an absolute differentiation between fact and opinion, and an ultimate capacity to admit his or her own limitations – “I do not know.” In almost 50 years in the part-time practice of forensic pathology, I can count on my fingers the cases into which I have gone feeling that I had a duty to try to prevent a miscarriage of justice or to rectify injustice where it had been caused by poor pathology. What I think we should do, I have tried to spell out above, as a pragmatic creed forged on the anvil of hard experience.
|
