Dead people tell no lies – and can’t testify, either

A Wisconsin judge recently ruled that only the forensic pathologist who autopsied a person shot 10 times in 2003 could testify about his autopsy report in the murder trial. He wouldn’t allow another forensic pathologist to testify to the report’s findings or conclusions.

That’s a problem. The original pathologist is dead.

The judge based his ruling on the 2011 U.S. Supreme Court decision in Bullcoming v. New Mexico. The supremes said Mr. Bullcoming’s constitutional right “to be confronted with the witnesses against him” was violated when a supervisor testified at his trial instead of the technician who performed his blood-alcohol test.

The Wisconsin judge interpreted the Supreme Court ruling to mean that only the person who performed any test or procedure or evaluation, the results of which are meaningful to the determination of a defendant’s guilt, may testify to his report. He said that’s the case even when the original analyst or expert is dead.

With few exceptions, my colleagues view this as a “terrible outcome” that will put a huge burden on the criminal justice system.

The original Bullcoming ruling – that the analyst who performed the blood-alcohol test must testify – is burden enough. Most crime laboratories have huge backlogs of work. If analysts must travel hither and yon to testify, they will do less work and backlogs will increase further.

The broader Wisconsin ruling – if upheld and applied to experts including forensic pathologists – would make it questionable whether it’s worth the effort for police to pursue so-called “cold cases” by bringing modern methodologies to bear on crimes committed long ago. Such investigations can and have solved old crimes, but this ruling would make conviction a lot harder because it’s a near certainty the original experts would not be available.

The same difficulty applies when a suspect flees the area or the country and is not apprehended for years – years during which experts retire, become disabled or die.

The decision that forensic pathologists cannot review and interpret the reports of other forensic pathologists is inconsistent with normal practice in all fields of expertise. Professionals routinely review and interpret the reports of others in the same profession – when asked to give a second opinion, for example.

I have no doubt of my ability to review and interpret the autopsy report of another forensic pathologist. I’ve testified in place of colleagues who were unavailable, and others have testified for me. It’s been common practice that saves the justice system time and money.

Will all the people found guilty in part on the basis of the testimony of replacement experts now have grounds for appeal? If such appeals are made, will prosecutors using experts whose hands are largely tied be able to cobble together sufficient evidence to convict again? I doubt it.

If this interpretation of the Bullcoming opinion is upheld and applied to forensic experts generally, it could have the surely unintended practical consequence of placing a statute of limitations – the lifespan of the expert witness – on murder. Dr. Carol J. Huser, a forensic pathologist, has served as La Plata County coroner since January 2003.

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