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An attorney asks you to change your report by omitting mention of evidence that is in dispute. Omitting the information does not alter your opinion; in fact, it significantly strengthens it, but this makes you vulnerable to cross-examination if it is admitted. Do you change your report to omit the information?
You are asked to review a civil wrongful-death case for an attorney. You come to the opinion that the attorney's client is lying to him, and is likely to blame in the death of the decedent. The death was certified by the original autopsy physician as an accident, and the client was never charged. After reviewing the records, you think this case is a homicide, and that the attorney’s client did it. Your contract with the attorney has a confidentiality clause. Do you break confidentiality to report the crime to the police?
A couple of years ago I was part of a panel of forensic pathologists who formulated these questions and others, and then posed them to both forensic experts and attorneys. We got very different answers from each group.
Nearly half the attorneys expected their expert to revise the report. Over three-quarters of forensic experts surveyed said they would refuse to do so. And the unreported homicide? Over half of the experts said they would violate confidentiality to report it to police—while over 80% of attorneys expected the experts to stay mum.
Ethical questions in science and medicine become hot topics in the press when they touch on taboos like sex or death, and when they affect public health and safety. Recent examples include the ethics of caring for the terminally ill at great cost on “death panels,” or empowering those same terminal patients to alleviate their own suffering by ending their lives of their own volition in an “assisted suicide.” Even the ethical ecology of self-driving cars has come under scrutiny. Do the algorithms employed to keep the driver safe consider collateral damage, maybe lethal, to pedestrians?
Forensic science is popular on television, yet we don't often hear about the ethical challenges that vex forensic experts. One of the few that gained attention in the press in the past year was a story out of Boston in which an assistant district attorney allegedly tried to influence the testimony of a forensic pathologist in a child abuse case. The pathologist felt "bullied" by the attorney to stick to his original determination of homicide, even though the scientific literature and new evidence in the case did not support it. He memorialized his impression in a note in the Medical Examiner's chart, which was eventually released to the defense; he amended the manner of death, and the ADA dropped the charges, but in another child death case the same ADA was barred by a judge from contacting and attempting to influence another medical examiner.
It’s common for non-scientists to attempt to influence the outcome of a forensic investigation. In a 2011 survey published in Academic Forensic Pathology, a quarter of forensic pathologists surveyed reported that they are considered prosecution witnesses within their jurisdiction, with the expectation that they not cooperate with defense counsel. More than 10% related that elected or appointed officials had exerted pressure on doctors to change their testimony or withdraw as an expert in a specific case. Sixty-four percent of government-employed pathologists reported that their job contract imposed limitations on private consultation.
When scientists are forced to testify exclusively for the government, and any defense or outside consult work is viewed as a "conflict of interest,” everyone suffers. The public stops seeing forensic pathologists as impartial, unbiased scientists. We become instead part of a prosecution team that puts people in jail, period. When that's the public perception and someone dies in police custody, it's no wonder that the investigating medical examiners and coroner's pathologists are accused of bias, while the media present the retained expert hired by the family as "independent." It's much harder to be ethical when you are not independent. It is the very essence of our job to speak out in the public interest, even when speaking out puts us in direct conflict with the government that writes our paychecks.
Ethical questions, by their nature, seldom have a single defensible answer. The best course of action may change due to subtle differences in the circumstances of an individual case. Sometimes we make decisions based on the nuances of personal interactions and life experience that can't be quantified in a survey or codified by a commission. Cultural shifts happen over time; what is considered ethical in one place or time might be egregiously wrong in another.
We must speak publicly and openly and often about the difficult choices we make as forensic professionals so that we can alert other scientists to the challenges they will face in their careers, and educate attorneys and others who interact with forensic scientists about the differences in our training and professional cultures that will spur conflict. We need the public to understand that when science and medicine evolve with advances in research, our culture evolves too, and the definition of what is ethical or what constitutes a conflict of interest will also change. Everyone would like to think that scientific findings are absolute, and that the scientists who testify in court are the purest sort of empirically rigorous professionals—but court testimony is not a laboratory experiment. It is an opinion: a professional, expert opinion that might change over time, or might differ from the opinion held by another, equally scrupulous forensic professional. Forensic science can include an unexpectedly changeable human component when it intersects with a court of law or with the press. It's an ethical requirement of our job to explain to people what we can do, what we cannot, and what we can argue over.
It's not an easy task. Nothing worth doing ever is. Or, rather—I should say—that's my opinion.
Dr. Judy Melinek is a forensic pathologist who does autopsies for the Alameda County Sheriff Coroner's office in California. Her New York Times Bestselling memoir “Working Stiff: Two Years, 262 Bodies, and the Making of a Medical Examiner” co-authored with her husband, T.J. Mitchell, is now out in paperback. She is the CEO of PathologyExpert Inc.