William R. Oliver

Inference in Forensic Pathology

Forensic pathologists make inferences about cause and manner of death. Those inferences have come under increasing scrutiny by the courts, by social critics of our findings, and by society at large. Much of this criticism is due to our inability to explain our inferential process. Forensic pathologists should be able to cogently explain the reasoning behind their findings, and express it in terms useful to stakeholders. This requires that we have a basic understanding of different kinds of inference and the scientific method, how they are used and their limitations. Medical diagnosis is not a simple matter of application of cookbook-style inferential laws, but involves a combination of deduction, induction, abduction, dialectic, and informal inference. There are significant differences between the way physicians make inferences compared to how they justify them. A discussion of different kinds of inference, inferential fallacies, evaluation of evidence, causation, and the scientific method is provided, with illustrations from the practice of forensic pathology.

Manner Determination in Forensic Pathology

A traditional function of forensic pathologists in the United States is the determination of cause and manner of death. The formal certification of manner of death is an American innovation of the early 20th century. Many countries do not follow this tradition. While originally established for vital statistics and public health purposes, the use of manner has grown to include increased legal, social, and business functions. The expanded role of manner determination has led to controversy regarding its true function, who should do it, and if it should be done at all. Much of the controversy regarding manner determination is due to inherent ambiguities that arise primarily from the limited number of categories and fundamental epistemic issues. Much of the heterogeneity in manner determination is structural and not a matter of error. Other criticisms come from those who focus on the legal implications of manner determination. Some have claimed that the use of circumstantial information in manner determination constitutes cognitive bias. Others suggest that manner determination is not a medical issue at all. A response is that the integration of circumstances and history with physical examination and laboratory findings represents the classic paradigm of medical diagnosis, and reinforces rather than opposes recognition that this is the practice of medicine. Transferring the task of manner determination to another agency would do nothing to improve accuracy, timeliness, or function. Other candidates to perform this function would be successful only to the degree that they were trained and function as forensic pathologists.

National Association of Medical Examiners Position Paper: Medical Examiner, Coroner, and Forensic Pathologist Independence:

Objective Forensic pathologists play a vital role in the justice system in matters concerning questions of death. Science as applied in the justice system should be objective and neutral. Since the goals of medical examiners and coroners are to determine the cause and manner of death for certification and public health functions (goals different and distinct from the missions of law enforcement agencies), it is important that medicolegal death investigation be independent. Accurate investigation, examination, reporting, and testimony by forensic pathologists are important to determine the cause and manner of death of individuals who die under sudden, unexpected, or violent circumstances. These cases can become the focus of political or legal pressure by individuals or offices seeking to influence the pathologists findings. This pressure, even if seemingly unsuccessful in an individual case, can introduce error, bias, and corruption into the medicolegal investigation process. This paper reinforces the principle that medical examiners, coroners and forensic pathologists should be allowed to perform medicolegal investigations free of these influences. Participants The ad hoc Committee on Medical Examiner Independence of the National Association of Medical Examiners (NAME), a self-selected volunteer committee, developed this position paper. The findings are based on surveys of the NAME membership regarding members’ experience with, and reaction to, outside influence. Evidence Surveys of NAME members revealed that medical examiner independence was important to most members. Over 70% of survey respondents had been subjected to pressures to influence their findings, and many had suffered negative consequences for resisting those influences. In a separate study, over 30% of respondents indicated that fear of litigation affected their diagnostic decision-making. In 2009, the National Research Council of the National Academies published recommendations to strengthen the forensic sciences; they specifically recommended that medical examiner and coroner offices should be independent from law enforcement agencies and prosecutors’ offices. Consensus Process This position paper represents the consensus of the ad hoc Committee on Medical Examiner Independence, submitted to the Executive Committee and Board of Directors of NAME, and subject to comment and review by the membership. Conclusions It is the position of NAME that forensic pathologists working in or for medical examiner or coroner offices or as private consultants should be permitted to objectively pursue and report the facts and their opinions of those cases which they are investigating independent of political influences from other agencies within their respective jurisdictions and independent of the threat of litigation.

Medical Examiners’ Independence is Vital for the Health of the American Legal System

Forensic pathologists play a vital role in the justice system in matters concerning questions of death. Accurate investigation, examination, reporting, and testimony by forensic pathologists are important to determine and demonstrate the cause and manner of death of individuals who die under sudden, unexpected, or violent circumstances. Cases involving political influence on the work of forensic pathologists have gained notoriety within the media and have been a source of concern for experts who practice in this highly selective field. In 2009, the National Research Council (NRC) of the National Academies published a report listing recommendations to strengthen the forensic sciences throughout the country. A specific recommendation within the report contends that medical examiner and coroner offices should be independent from, or at least autonomous within, law enforcement agencies and prosecutors’ offices. It is our position that forensic pathologists working in or for medical examiner or coroner offices or as private consultants should be permitted to objectively pursue and report the facts and their opinions of those cases which they are investigating independent of political influences from other agencies and institutions within their respective jurisdictions. This paper discusses three cases involving political influence, presents survey data of NAME members concerning such influences, and reviews the recommendations of the NRC.

Intent in Manner Determination

Manner of death determination is a basic and traditional task for medical examiners. Though it has a history spanning centuries, many facets of manner determination continue to be problematic. Few issues are more vexing than the difficulties in determining intent. A survey of members of the National Association of Medical Examiners was performed to determine current practice and attitudes about the use of intent in manner determination. There were 168 completed responses, representing an approximately 20% response rate. The results reveal significant variation. While the concept of “volition” as distinct from “intent” has been common for over a decade, less than 60% of respondents made the distinction in their practice. There was also wide variation in the degree of certainty practitioners noted they used when determining manner with peaks at between 51-60% and 95-99%. Some of this represents real uncertainty in manner determination and some represents cultural and regional differences in practice. The variation and uncertainty in these determinations has led some to suggest that this role be abandoned. However, the statistical, policy, and cultural need for these determinations dictate that the function will be performed even if abandoned by the medical examiner community. Medical examiners are uniquely positioned and trained to fill this need, and should continue to do so.

Cognitive Bias in Medicolegal Death Investigation

Cognitive bias is a popular criticism of medicolegal death investigation. However, many of these criticisms are misplaced. Some have criticized the use of history into medical diagnosis. However, this criticism ignores the fact that the practice of forensic pathology is a medical discipline; it is not a simple mechanical test. History is an integral and necessary part of medical practice, and the lack of history is more dangerous than its use. Criticisms of manner determination often reflect an incorrect understanding of what manner is and what it is properly used for. Many criticisms wrapped in the flag of cognitive bias are in fact errors in scientific orthodoxy, real scientific disagreements, issues of ignorance, and lack of competence or certification, ethical lapses, and political pressure. Solutions that address cognitive bias do not address these issues. Many of the proposed solutions have not themselves been proven to be effective. Alternatives, such as intensive peer review, might address both cognitive bias and these other issues. Any proposed interventions should themselves be able to demonstrate a sound empirical basis.

Digital UV/IR Photography for Tattoo Evaluation in Mummified Remains*

Abstract:  The presence and location of tattoos can be an important component in the identification of remains in the extended postmortem period if remnants of skin persist. However, when there is significant mummification, visualization of tattoos can be problematic. Multiple methods have been proposed to make tattoos more visible, but all have limitation. In this case report, a mummified body was discovered. The presumptive victim was reported to have a small tattoo on her hand but it was not visible to the naked eye. The hand was photographed using ultraviolet (UV) and infrared (IR) light. A tattoo matching the description was noted in the photographs. In contrast to film‐based IR and UV photography, digital UV and IR photography allows rapid visual evaluation of results and optimization of image utility. The ability to quickly modify photographic parameters quickly greatly increases the utility of IR and UV photography in the autopsy suite.

Considerations for Gross Autopsy Photography

Photography has been a mainstay of autopsy documentation for many years. Recent advances in digital photography have increased its prominence. Good photographic practice requires an understanding of how a camera works, basic optics, and basic digital processes, as well as traditional compositional issues. The quality of autopsy photography is a function both of the skill of the photographer and how the imaging process fits into the autopsy workflow. Numerous technical issues affect image quality, including the type of sensor, the type of camera back, the lens, the aperture, the shutter speed, and lighting. The choice of output format and procedures for archival of images is important. A number of special processes may be part of autopsy pathology including epiluminescence, indirect ophthalmoscopy, and ultraviolet and infrared photography. Postprocessing of images is common, but must be documented.

Moritz Revisited: Modern Mistakes about how we Think about Forensic Pathology

In 1956, Alan Moritz published a landmark article entitled Classical Mistakes in Forensic Pathology. This article has been required reading for two generations of forensic pathologists, and the mistakes he described are just as important today as they were 60 years ago. However, new technologies and challenges have changed how forensic pathology is practiced, and there are even more changes to come. A revisitation of Moritz is presented, with an emphasis on how we think about what we do.

The Ethics of External Peer Review

External peer review can be a useful part of a quality improvement program. However, it can also be used for political and punitive purposes. The distinction between potentially useful and damaging review is largely an issue of the ethics of how it is done. The ethics of external peer review lie not only in the process itself, but also in the role of the pathologists performing the review. While there are many ethical issues involved in external peer review, the most important may be a dedication to due process, allowing the pathologist under review to respond to allegations, and an insistence on complete information prior to drawing conclusions. Well established criteria for external peer review may provide protection both for the pathologist under review against allegations of negligence or incompetence, but also for the reviewers against accusations of bad faith.