One of the most common questions I face from attorneys when I testify in criminal cases is whether I get hired more often by the prosecution or by the defense. In civil cases, I get asked whether I testify disproportionately for plaintiffs or for defense attorneys. Why do lawyers across the spectrum ask this of doctors on the stand? Because it’s a quick way to assess—and attack—an expert’s bias. A forensic scientist needs to have no bias. One way to demonstrate this ethic is for the expert to maintain a relatively even split of cases where he or she testifies for either the prosecution or the defense.

Dr. Judy Melinek

In my opinion, every forensic scientist working for a government agency should be free to do outside consulting work. Our employing agencies should also encourage us to maintain an open door policy, and be willing to answer questions about the work we do under their auspices for both sides of any legal case. Yet in a 2013 survey of forensic pathologists, approximately one-quarter reported that they are considered prosecution witnesses within their jurisdiction, and 42 percent reported that prosecutors demand they violate confidentiality to divulge details of their conversations with the defense. In the same survey, two-thirds (64 percent) of government-employed forensic pathologists reported that their employers limit their ability to perform private practice consultation. 

Recently the American Association for the Advancement of Science released a statement on scientific freedom and responsibility, saying “scientific freedom and scientific responsibility are essential to the advancement of human knowledge for the benefit of all. Scientific freedom is the freedom to engage in scientific inquiry, pursue and apply knowledge, and communicate openly. Scientific responsibility is the duty to conduct and apply science with integrity, in the interest of humanity, in a spirit of stewardship for the environment and respect for human rights.” How is a forensic expert supposed to uphold the highest level of scientific integrity if she is forced to work only for a government entity and if she is muzzled when talking to criminal defense attorneys?

Pathologists who perform their work exclusively for medical examiners or coroners and do no consult work end up with a restricted perspective on the complexity of their own cases. The information they have reviewed prior to determining the cause of death is often limited to whatever was available at the time of death, and their conclusions often rely on incomplete medical records. At the time of death, the expert pathologist rarely has access to finalized police reports or witness statements. Things may be different years later when the case goes to court; then there are transcripts of witness interviews, video evidence, and even confessions available to discovery. The questions that get raised in litigation frequently have more to do with the nuances of how to interpret the evidence, rather than the determination of cause and manner of death and nothing else.

Cause and manner are the minimum requirements of the coroner or medical examiner’s determination. Prosecution needs these determinations in order to establish causality—proof that the criminal act resulted in the death of an individual. But legal cases are about much more than causality. Questions about whether the defendant was acting in self defense may rest on analysis of bloodstain evidence or the pattern of injury on the defendant rather than the victim. I have seen prosecution cases fall apart when the coroner’s pathologist couldn’t answer questions about the position of the deceased at the time of the injury, or about the survival interval, since they hadn’t been given access to crucial eyewitness testimony or medical records. Experienced experts learn more from consult work than they learn when they limit themselves to government cases—if for no other reason that consult work invariably involves the most interesting and contentious cases in our field of science.

One other important reason government-employed forensic scientists should run their own private practices is that consulting is an excellent source of supplemental income when many government agencies are unable or unwilling to match private-sector professional salary rates. Forensic pathology is the rare field of medicine in which an extra year of fellowship training actually depresses your annual income, since starting salaries for most hospital pathologists are generally higher than those for forensic pathologists at government offices. I know of many reputable forensic scientists who have stayed in miserable, underpaid jobs because they felt they had “no way out” other than to relocate cities. Furthermore, taking on forensic consult work allows you to help increase salaries for others in your profession across the board. Consultants frequently research the salary rates of other experts in their region and increase their rates accordingly to keep up with the market, and to stay ahead of experts with less education and training. In doing consult work you are empowered to understand your value. Private practice increases your confidence in negotiating higher salaries for both yourself and your staff in the public sector. 

But the most important reason forensic pathologists should do consulting work is that there are too few of us—and so there are defendants who don’t have access to our expert legal help at all. This has real-world consequences for the criminal justice system: every time a defendant doesn’t get access to an expert and loses a case where there was a forensic pathologist testifying for the prosecution, they can appeal based on inadequate assistance of counsel, because their defense attorney didn’t retain a qualified expert. Seriously—think about the following hypothetical. I am retained by a defense attorney. I review all the materials. Then I get on the phone with the lawyers and tell them I can’t testify because their client is flagrantly and inarguably guilty—but that they need to cross examine the pathologist on this point and that point, which supports manslaughter versus murder. Even if the defendant subsequently gets convicted of murder, I have done my job with integrity and there is no grounds for an appeal, and the opposing expert’s opinion has been validated in court.

So if you’ve ever disparaged experts who “work for the other side,” and if you believe it is your job to help the prosecution defeat the defense—then you are undermining the integrity of the adversarial legal system. In cases where the pathologist is way off and the science isn’t there to support a prosecution, you’d better believe I testify for the defense as a corrective expert. Even if the defendant gets convicted (because of juror bias, other evidence, bad lawyering, or whatever other reason), I have done my job to the best of my ability, with honesty and integrity.

Dr. Judy Melinek is a forensic pathologist who performs 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, writer T.J. Mitchell, is now out in paperback. She is also the CEO of PathologyExpert Inc.