The Baby Tyler Case: Should Medical Examiners Have Access to ...

The Baby Tyler Case: Should Medical Examiners Have Access to ...

THE ROLE OF THE MEDICAL EXAMINER AND AVOIDING COGNITIVE BIAS Judge Stephanie Domitrovich, Ph.D., Courtroom Knowledge of Forensic Technology and the Impact on Frye/Daubert Standards August 9, 2016, Duquesne Univ. Workshop Pittsburgh, PA

BACKGROUND: HOW TRIAL JUDGES HANDLE SCIENTIFIC EVIDENCE 2 WORLDS OF L AW & S C I E N C E Archimedes and proving guilt of goldsmith

adulterating gold content of crown Bathtub and weighing gold first law of hydrostatics 3 JUSTICE & SCIENCE COEXIST Integrity of Courtroom & perceptions

Courts view of Science as ally in truth-finding Law depends on Science 4 B ATT L E G R O U N D O F L AW & S C I E N C E Adversarial system of litigation and temperament of scientists ~ Scientific method incompatible American system: Counsel extracts

slanted picture of witness Scientists trained to objectivity 5 H I S T O RY O F D E V E LO P M E N T O F J U RY & L AW O F EVIDENCE Adversarial procedure pressured judge toward passivity and broke up older working relationship of judge and jury.

With trials being more commonly directed by lawyers, judges played less active roles in producing the evidence. 6 U.S. COURT SYSTEM Adversary model in which parties in dispute present & refute evidence before impartial judge or jury Opportunity of cross-examination essential

safeguard of accuracy & completeness of testimony 7 MUTUAL ADVANTAGES Value in educating judges, lawyers, and scientific experts in each others line of reasoning and mode of communication. Judges in tort actions, for example, would gain a basic understanding of epidemiology, cancer bioassays & risk

analysis. Scientists would in turn benefit from learning credibility standards & goals of legal process. 8 JUSTICE BREYER: KEY IS COOPERATION (G.E. V. JOINER CASE ) [A] judge could better fulfill this gatekeeper

function if he or she had help from scientists. Judges should be strongly encouraged to make greater use of their inherent authorityto appoint expertsReputable experts could be recommended to courts by established scientific organizations, such as the National Academy of Sciences or the American Association for the Advancement of Science. 9

E VA L U AT I N G E V I D E N C E VA R I E S A M O N G JURISDICTIONS 1. Nature of judges role as active or passive 2. Criteria--deference to experts opinions vs. assuming role themselves 10

LEGAL STANDARDS VARY High barmore rigorous and active judicial role Low barmore permissive and more quantum of evidence for jurors to weigh evidence -- down to zero weight 11 EVALUATE PROBATIVE VALUE

1. Highly deferential to expert and rely mainly on qualifications 2. Consult the particular field of expert and achieve expert consensus 3. Theoretical principles, research methods and supporting data 12 FRYE V. U.S . Defendant failed to establish test was

demonstrative, not merely experimental Test had not gained standing and scientific recognition 13 STANDARD AT THAT TIME VERY BROAD: When the question involved does not lie within the range of common experience or common

knowledge, but requires special experience or special knowledge, then the opinions of witnesses skilled in that particular science, art, or trade to which the question relates are admissible in evidence. 14 SOMEWHERE IN THIS TWILIGHT ZONE THE EVIDENTIAL FORCE OF THE PRINCIPLE MUST BE RECOGNIZED, AND

W H I L E C O U RT S W I L L G O A L O N G WAY I N A D M I T T I N G E X P E RT TESTIMONY DEDUCED FROM A WELLRECOGNIZED S C I E N T I F I C P R I N C I P L E O R D I S C O V E RY, THE THING FROM WHICH THE DEDUCTION IS MADE MUST BE S U F F I C I E N T LY E S TA B L I S H E D TO H AV E G A I N E D G E N E R A L A C C E P TA N C E I N T H E PA R T I C U L A R I N W H I C H I T B E L O N G S . F RY E

15 DAUBERT V. MERRELL DOW 509 U.S. 579 (1993) Issue: Whether Plaintiffs evidence of animal studies, chemical structure analyses and unpublished re-analysis of previously published human statistical studies was scientifically reliable to prove Bendectin caused birth defects?

16 SUPREME COURTS FACTORS IN DAUBERT : Not a definitive checklist or test Theory, technique, reasoning, methodology, etc. referred collectively as explanative theory Whether explanative theory is scientific knowledge which will assist the trier of fact.

17 EXPERT TESTIMONYF.R.E.702 1. Reliable scientific knowledge grounded in scientific methodology and connoting body of known facts accepted as true on good grounds & 2. Relevant having a valid scientific connection to pertinent inquiry

18 Rule 702 Testimony by Experts If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto

in the form of an opinion or otherwise . . . TRIAL JUDGE MAKES PRELIMINARY ASSESSMENT Under Rule 104(a), must decide whether underlying reasoning or methodology is: 1. Scientifically valid and 2. Can be properly applied to facts

20 CONSIDERATIONS-WHETHER theory can be tested; peer review and publication; known or potential rate of error; standards maintained to control techniques operation; and widespread acceptance in relevant scientific community

21 NATURE OF THE INQUIRY --Flexible, no definitive checklist or test --Focus on Principles and Methodology, not on Conclusions generated 22

DESIGN OF RULES OF EVIDENCE To strike a balance, not for exhaustive search for cosmic understanding, but for particularized resolution of legal disputes 23 ROLE OF GATEKEEPER

In practice, will sometimes prevent the jury from learning of authentic insights and innovations. 24 A N A LY S I S O F D A U B E R T FA C T O R S Testing or falsifiability: Is the theory testable? Who conducted the test? Was there independent testing?

How was it tested? What methods were used? How was data collected? Was the sample size large enough to be statistically significant? 25 MORE DAUBERT FACTORS Known or Potential Error rate: What was rate of error? Was it statistically significant? What was rate of

acceptability? <1% -DNA Hard Sciences 1%- HLA Hard Sciences, Medicine 5%- Standards of Deviation 50%-50%- a coin toss 26 DAUBERTS THIRD FACTOR Peer review: Who reviewed the tests and data? Were

there true peer review journals? Did Board of editors scrutinize and test theory before publishing? Was it an informational exchange journal? Was the article published without testing its contents? Are there any critical journal articles? 27 DAUBERTS 4 T H FACTOR Existence and Maintenance

of Standards controlling the techniques operation 28 DAUBERTS FIFTH FACTOR General Acceptancea/k/a Widespread acceptance (Frye test)-- Whether principle and methodology are generally accepted by relevant scientific, technical or specialized community? Need not be

unanimously endorsed 29 G.E. V. JOINER 522 U.S. 136 (1997) Worker exposed to PCBs Fitting the facts to be relevant & reliable Trial court ---sole discretion to admit or reject proposed scientific evidence.

Standard on appeal: abuse of discretion. 30 NO MORE IPSE DIXIT Latin She herself said it. Bold assertion resting on the authority of an alleged expert All expert testimony does not equal expertise.

31 K U M H O T I R E V. C A R M I C H A E L 526 U.S. 137 (1999) ALL MATTERS of expert testimony-scientific, technical & other specialized-reviewed for their methodology in conclusions or opinions 32

KUMHO TIRE V. CARMICHAEL D E F E C T I N T I R E S D E S I G N O R M A N U FA C T U R E CAUSED BLOW-OUT E X P E R T C R E AT E D H I S O W N T E S T W H E R E 2 O U T O F 4 P H Y S I C A L FA C T O R S S U C H A S B E A D GROOVE, MARKS, DISCOLOR, NO PUNCTURES-DESPITE AGE OF TIRE--MEANS DEFECT 33 I N PA RT I I I O F K U M H O , J U S T I C E B R E Y E R

S TAT E S : Relevant issue was whether the expert could reliably determine the cause of the tires separation Does the explanative theory as actually applied to the facts produce a correct and/or accurate result. 34

F. R. E . 4 0 3 B A L A N C I N G T E S T Relevant evidence excluded if probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. 35

F.R.E. 706 Court has authority: On its own motion or On motion of either party To enter a Rule to Show Cause as to why expert witnesses should not be appointed 36 F.R.E. 706

Parties submit nominations of experts. Court appoints own expert or expert agreed upon by parties. 37 Court must have consent of expert. Court shall inform the expert of the experts duties. Expert advises parties of findings.

38 C O U RT-A P P O I N T E D E X P E RT S Can be deposed, examined and cross-examined. Reasonable compensation No ex parte communications

39 CONSTRUCTION OF SCIENCE IN THE COURTROOM Due to nature of adversarial process Need for educating judges, lawyers and experts in each others line of reasoning and mode of communication 40

POST-DAUBERT WORLD Courts considering admissibility of expert testimony must become experts themselves Judges not only call the balls and strikes but must also understand something about pitching Know validity of methods & application 41

THE COURTS ROLE IN STRENGTHENING FORENSIC SCIENCE: A Path Forward 42 NAS: ADMISSION OF RELIABLE F O R E N S I C S C I E N C E I N L I T I G AT I O N

Laws reliance in criminal prosecutions Daubert: Quest for truth differs in courtroom vs. laboratory Daubert: Scientific conclusions ~ perpetual revision whereas law ~ resolves disputes finally & quickly 43 NAS RECOMMENDATION 10 ~ AS TO INSUFFICIENT EDUCATION &

TRAINING: NIFS (Natl Institute of Forensic Sciences) should also support law school administrators and judicial education organizations in establishing continuing legal education programs for law students, practitioners and judges. 44 NAS FINDING:

The fruits of any advances in forensic science disciplines should be transferred directly to members of the judiciaryso that appropriate adjustments can be made in judicial decisionmaking. 45 NAS FINDING: Better connections must be established and promoted between experts in the forensic science disciplines and law

schools, legal scholars and practitioners. 46 ANOTHER NAS FINDING: And judges need to be better educated in forensic science methodologies and practices. 47

T H E B A BY T Y L E R C A S E : S H O U L D M . E . S H AV E A C C E SS T O S TAT E M E N T S O B TA I N E D BY L AW ENFORCEMENT TO DETERMINE C AU S E A N D M A N N E R O F D E AT H ? Judge Stephanie Domitrovich, Ph.D., Dr. Jeffrey Jentzen, M.D., and Judge Donald Shelton, Ph.D.

State of Iowa v. Hillary Lee Tyler Iowa Supreme Court, No. 130588 June 30, 2015 Agent Roehrkasse Cause and manner:

undetermined Cause: bathtub drowning Manner: homicide 50 Years Reversed

and Remanded for Dr. Thompsons opinions on the cause and manner of Baby Tylers death were not sufficiently based on scientific, technical, or other specialized knowledge so as to assist the jury. Rather, Dr. Thompson admitted that his opinions on the cause and manner of Baby Tylers death were based primarily, if not exclusively, on Tylers

inconsistent and uncorroborated statements to police, as opposed to objective medical findings. . . . He admitted the only way he reached his final opinions was by reference to Tylers statements to police during her interview at the police station. . . . Without her statements, crediting some and discounting others, Dr. Thompson could not have offered an opinion on the critical issue in this case: whether Baby Tyler was born alive. His opinions were not sufficiently based on

CONTEXT FOR THE BABY TYLER CASE: ROLE OF MEDICAL EXAMINERS GENERAL CONCEPTS Police own the scene; ME owns the body. Police are in charge of scene safety. Police investigate and arrest suspects.

ME determines cause and manner of death. Prosecutor investigates and convicts. INVESTIGATIVE GUIDELINES History Scene Details Procedures at Scene Body Information

Documenting Facts Correlation of Findings THE AUTOPSY BEGINS AT THE SCENE ME INVESTIGATOR ARRIVES AT THE SCENE

Introductions and identification Participate in a scene briefing / collect info Exercise scene safety Conduct a scene walk through with police Confirm and officially pronounce death DOCUMENTING THE SCENE

Photograph the scene Develop descriptive documentation Establish probable location of injury Evaluate (with law enforcement) items as property vs. evidence Interview witnesses (if appropriate)

Establish chain-ofcustody DOCUMENT CASE INFORMATION Date and time notified Time of arrival at scene Decedents name, address phone. Date and time pronounced dead

Identification Personnel present Case number Date of birth SCENE DEBRIEFING Does the condition of the body and scene fit with the history of events as given by the caregiver?

Is there evidence of abuse, neglect or dangerous environment? Are other children at risk? JUMPING TO CONCLUSIONS BEFORE COMPLETING THE INVESTIGATION

Sepsis mimics assault FAILURE TO DOCUMENT, UPDATE AND DISSEMINATE INFORMATION IN A TIMELY MANNER Identification Notification of NOK

Objections to Autopsy Special Requests New Evidence New Theories DOCUMENT DISCOVERY HISTORY Who discovered the body:

when, where, how, why? Witnesses Circumstances DOCUMENT TERMINAL EPISODE Last known alive

Personal Physician Incident prior to Hospitalization death Medications

Obtain relevant Compliance medical history Obtain antemortem samples Document drugs

DOCUMENT SOCIAL AND MENTAL HEALTH HISTORY Suicidal ideations Hospitalizations Domestic history Drug/alcohol use Sexual background Financial and criminal history

SPECIAL CASES: DEATHS IN POLICE CUSTODY High-profile cases Suspicions of police responsibility Pressure from family and press for immediate answers Demands prompt involvement of the Medical Examiner Full cooperation with witness

statements and reports SPECIAL CASES: EVALUATING CHILD DEATH SCENE The General Environment Position of the Child Sleeping Area Other Children at the Location

Other Adults Drugs, Alcohol, and Cigarettes Weve learned more about the influence of bias in peoples judgment. it can operate at a subconscious level and that is an important consideration. Dr. Edward Imwinkelried, UC Davis What is Cognitive Bias?

On a more unconscious level and occurs when people tend to see what they expect to see. This distortion of persons perception or thought process can affect decision-making, having influence on findings of forensic expert. Types Of Cognitive Bias The umbrella term of cognitive bias encompasses a variety of specific biases, including: Contextual Bias This occurs when decision of a person is influenced by extraneous (often ambiguous) information, that is not needed

to draw conclusion. For example, fingerprint examiner who receives file containing prints and a case summary (suggesting suspect is actual perpetrator), may be more likely to find prints match, than analyst who receives no case information. THE BABY TYLER CASE OPINION OF IOWA SUPREME COURT: ~ MAJORITY AND DISSENT

I O WA S U P R E M E C O U RT MAJORITY RULED: M.E.s opinionBaby Tylers death was homicidal drowningshould not have been admitted since M.E.s opinion based primarily, if not exclusively on Defendant Mothers inconsistent and uncorroborated statements to police about circumstances of Baby Tylers birth as opposed to

objective, scientific, or medical evidence. MAJORITY AFFIRMED D I S T R I C T C O U RT A N D VAC AT E D D E C I S I O N O F C O U RT O F A P P E A L S : District Court (Trial Court) properly denied Tylers Motion to Suppress Statements she made to police. She was not in custody at trailer, during ride to police station or during questioning at station. No 5th Amendment rights violated. And

special agents informed her of Miranda rights and she signed waiver at follow-up questioning at hospital. M A J O R I T Y I N B A BY T Y L E R C A S E RULED: M.E.s opinions inadmissible ~ amounted to impermissible comment on Mothers credibility. Mother complained M.E. vouched for what Mother herself told police. Mother never testified from witness stand. Central issue: whether Baby Tyler born alive and survived for

sufficient to drown baby OR whether baby was stillborn or died immediately so that Mother could not drown him. M.E. found fluid in babys lungs and in part was amniotic fluid which is composed of water and therefore no scientific basis for whether some of fluid was bathwater. I N I O WA , M A J O R I T Y S TAT E D C A S E L AW P R E C E D E N T: Expert testimony is not admissible merely to bolster witnesss testimony.

Most courts reject expert testimony that either directly or indirectly renders opinion on credibility or truthfulness of witness. Recognized a very thin line between testimony that assists the jury in reaching its verdict and testimony that conveys to jury that a witnesss out of court statements and testimony are credible. MAJORITY: Without benefit of objective findings, M.E. in Tyler testified to ultimate

issues of fact questions for the jury to determine. Focused on M.E.s conclusion, not methodology. Majority found M.E. relied primarily of not exclusively on Mothers inconsistent and uncorroborated statements to police. Not based on scientific, technical or other specialized knowledge. Unique facts in this case ~ amounted to impermissible comment on Mothers credibility. Found M.E. had no reasonable degree of medical certainty. D I S S E N T:

I O WA M A J O R I T Y R U L I N G B A S E D O N M I S TA K E N P R E M I S E False premise: M.E. based his opinion as to cause (drowning) and manner (homicide) of death solely on Mothers statements to police. CONFLICTS WITH M.E.S TRAINING AND LAW REQUIREMENTS:

Because practice of forensic pathology necessarily requires M.E. consider witnesss statements when determining cause of death, M.E.'s expert opinion is not rendered inadmissible if based in part on criminal defendant's statement. M.E.S ARE NOT socially isolated basement dwellers who do nothing more than perform autopsies in their dimly lit morgues.

M.E.S ARE PHYSICIANS SPECIALIZING IN FORENSIC PAT H O LO GY Earned either M.D. or D.O., 4 years in residency program & 1 year forensic pathology fellowship. Medical training fundamental to practice of forensic pathology.

PHYSICIANS MEDICAL TRAINING Diagnose patients properly, physicians rely on patients medical history. Medical history is never considered in isolation;

Contrasted with & viewed in light of physical exam and testing; and Leads to medical diagnosis. PRACTICE OF FORENSIC PATHOLOGY Gather history of deceased from witnesses, relatives of deceased, police agencies, [and] treating physicians, examine body (autopsy), and perform laboratory tests.

Each of 3 steps-history, examination, and testingnecessary components of M.E.s opinion as to cause & manner of death; if M.E. skips history, then opinion is as reliable as treating physicians who refuse to talk to patients. M . E . S D O N O T W O R K I N I S O L AT I O N Forensic pathologists who solely rely on postmortem morphological or laboratory observations to properly assign manner and occasionally even cause of death will err at unacceptably high rate. Reece, Child Abuse: Medical Diagnosis and Management, 638 (3d ed. 2009).

Iowa Supreme Court Majority would require M.E.s form opinions in labs without talking to anyone with knowledge of what might have happened. C O N C LU S I O N : W I T H I N A REASONABLE DEGREE OF M E D I C A L C E RTA I N T Y B A BY T Y L E R D R O W N E D Complete autopsy requires integration of information from

various investigative sources M.E. followed proper procedure in this case: gathered history of Baby Tylers death by reviewing photographs and reports of crime scene and reviewing Hillary Tylers taped statements, performed extensive autopsy, and conducted and reviewed laboratory testing of Baby Tylers vital organs. M.E. TESTIFIED IN BABY TYLER : so Im a physician first..as Ive been saying, my diagnosis, which we

call cause of death, is based on a history, physical exam, and then supplemental lab testing. if you just did the physical exam, I would miss a significant number of cause and manner of death. It would be similar to you going to your primary care physician, sitting down on his exam table and just havinghave him start listening to your lungs, looking in your ears, checking your eyes without him asking you whats wrong. I cant obviously ask my patients whats wrong with them, so I have to ask other people whats wrong. I have to ask police whats wrong. Sometimes witnesses will come forward and say whats wrong or what happened. So that part of my diagnosis of cause of death, the history, is absolutely essential.

M . E . I N B A BY T Y L E R R U L E D O U T A LT E R N AT I V E C A U S E S O F D E AT H : Congenital defects Substance Abuse Infections and Skeletal trauma M.E. AUTOPSY FINDINGS

C O R R O BO RAT E D M O T H E R S C O N F E S S I O N : M . E . D I D N O T PA R R O T HER CONFESSION Baby Tyler born alive, cried and took breaths before drowning. She described giving birth while standing and was corroborated by bruises noted in autopsy showing forehead bruised where he hit floor. Police found scissors exactly where she said she cut umbilical cord. Fluid found in the lungs and expanded alveoli corroborate her description of filling water in tub and placing baby face down.

Expanded alveoli in Baby Tylers lungs indicated baby born alive. M . E . I N B A BY T Y L E R C A S E WA S V I G O R O U S LY CROSS-EXAMINED: Weaknesses go to weight of his opinion, not its admissibility. Acknowledged he was unable to determine cause and manner of death without Mothers confession. With aid of cross-examination, jury is fully capable of detecting most plausible explanation of events.

Majority held Mothers confessions properly admitted into evidence. M.E. entitled to rely on same confessions jury heard, in addition to medical evidence (his autopsy findings) corroborating Mothers selfincriminating statements. D I S S E N T I N D I C AT E D : Majority's concern over experts bolstering credibility of Mothers confession to police, not implicated when expert relies on Mothers own words as to what happened. M.E. never commented on Mothers credibility, state of

mind or guilt in presence of jury. M.E. gave no opinion as to her motive or intent. M.E. assisted jurys understanding of medical evidence. M.E. simply relied, in part, on her confessions for determining physical cause & manner of death. D I S S E N T C O N T. Term homicide is no opinion as to criminality of killing or culpability of killer. By stating homicide, M.E. rendered neutral medical opinion.

Requisite intent must be present for killing to be crime and go to ultimate issue for jury to determine as to guilt or not. M.E. here did not cross the line; Simply because trial court admitted manner of victims death as homicide, did not mean M.E. improperly testified as an expert. M.E. assisted jurys understanding of medical evidence consistent with homicide. We should trust juries give expert testimony proper weight. I O WA R U L E O F E V I D E N C E 5 . 7 0 3 :

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the trial or hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. F. R. E . 7 0 3 Experts may base opinion on facts or data in the case that experts been made aware of or personally observed. If

experts in particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for opinion to be admitted. But if facts or data would otherwise be inadmissible, proponent of opinion may disclose them to jury only if probative value in helping jury evaluate opinion substantially outweighs their prejudicial effect. F. R. E . 8 0 4 (b) The Exceptions:

(3) Statement Against Interest. A statement that: (A) a reasonable person in the declarant's position would have made only if person believed it to be true because, when made, it was so contrary to declarants proprietary or pecuniary interest or had so great a tendency to invalidate declarants claim against someone else or to expose declarant to civil and criminal liability; and (B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in criminal case as one that tends to expose declarant to criminal liability.

BOTTOM LINE: Although Mother convicted by jury of lesser included offense of second degree murder, Mother is entitled to new trial. Trial judge abused discretion and should now prohibit M.E. from testifying that cause of death was drowning and manner of death was homicide. Likewise, should redact portions of autopsy report stating his ultimate opinions on cause and manner of death. 96

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