Visit http://johncaputo.com/aop/head-trauma… injuries can occur in many different ways. Obviously, trauma can cause a brain injury. Some of these are the result of carelessness causing direct traumatic contact to the brain by an outside object or force. Others are caused by the brain literally striking the inside of the skull in what is caused a closed head injury. Closed head injuries can result in fluid collection called hydrocephalus, bleeding of the tissues which is a hemorrhage, and sometimes a herniation of the brain from the fluid or blood which is a destructive movement of the brain from the force of the fluid or blood collection.
Yet, the brain is sometimes injured very seriously without a fluid or blood collection. A serious concussion or bruise of the brain can injure the connecting fibers of the brain and damage the electrical system. This can cause what is known as cognitive changes such as loss or deterioration of memory, difficulties in reasoning and thinking, speech and learning abilities.
There are occasions where a problem with breathing caused by an arrest, by shock, stroke or from a deficiency in the lung whereby blood is not oxygenated sufficiently can cause temporary anoxia, (the lack of oxygen), or persistent hypoxia, (a lowered amount of oxygen to the brain) which damages the tissue resulting in severe motor and mental function deficits. Fore more information on brain injures caused by delayed diagnosis, click here.
At our law firm, we have had the experience in pursuing many cases for injured citizens which have occurred in all of the above ways.
Understanding Rule 16 of the Academy’s Code of EthicsIn recent months, the Academy’s Ethics Committee has seen a sharp upswing in the number of challenges and inquiries regarding potentially inappropriate expert witness testimony. Until this year, the Code of Ethics had been silent on this issue, and the Ethics Committee had no authority to investigate such cases. In the absence of a Rule of Ethics addressing this matter, the challenge or inquiry was returned to the submitter noting that the responsibility to dispel false, deceptive or misleading testimony rested with the attorney conducting the cross examination.
In light of the 7th U.S. Circuit Court of Appeals decision in Donald C. Austin, MD v. American Assn. of Neurological Surgeons, the Ethics Committee concluded there is legal precedent for a Rule of Ethics defining appropriate expert witness testimony. The Academy Board of Trustees agreed, and in June 2003 approved a proposed Rule to be
voted on by the general membership. The Rule was approved by the membership December 2003, and went into effect January 1, 2004.
The Rule provides:16. Expert Testimony. Expert testimony should be provided in an objective manner using medical knowledge to form expert medical opinions. Non-medical factors (such as solicitation of business from attorneys, competition with other physicians, and personal bias unrelated to professional expertise) should not bias testimony. It is unethical for a physician to accept compensation that is contingent upon the outcome of litigation. False, deceptive or misleading expert testimony is unethical.
What is Expert Witness Testimony?The expert witness plays an essential role in determining medical negligence, and courts depend on expert witness testimony to establish the standards of care in questions of medical malpractice. Expert witness testimony serves to describe relevant standards of
care, helps to identify conformance with or any breaches in those standards, and whether or not a breach caused injury. In addition, an expert may be needed to testify about the current clinical status of a patient as part of the process of determining damages.
In civil litigation, expert witness testimony is much different from that of other witnesses. In legal proceedings involving allegations of medical negligence, “witnesses of fact” (those testifying because they have personal knowledge of the incident or people involved in the lawsuit) must restrict their testimony to the facts of the case at issue.
The expert witness is given greater latitude. The expert witness is allowed to compare the applicable standards of care with the facts of the case, and offer an opinion as to whether the evidence indicates a deviation from or conformance with the standard of care. The medical expert also provides an opinion (within a reasonable degree of medical certainty) as to whether that breach in care is the most likely cause of the patient’s injury. Without the expert’s explanation of the range of acceptable treatment modalities within the standard of care and interpretation of medical facts, juries would not have the technical expertise needed to distinguish malpractice (an adverse event caused by negligent care or “bad care”) from maloccurrence (an adverse event or “bad outcome”).
Standards of admissibility of expert witness testimony vary with state and federal rules of procedures and evidence. Although most state laws conform with the federal rules of procedure and evidence, some do not. The same testimony from a given expert witness, therefore, might be admissible in some state courts but not in federal court and vice versa. Ideally, expert witnesses should be unbiased conveyers of information: The pivotal factor in the medical tort process is the integrity of the expert witness. The testimony should be reliable, objective, and accurate and provide a truthful analysis of the
standard of care.
Limitations of the Rule & the Submission Process
Academy members should be aware that only testimony offered and/or depositions taken on or after January 1, 2004 will be actionable under Rule 16. The Ethics Committee will carefully screen new cases submitted for review, because the Academy does not have the resources to hold a hearing in every case, and is not the proper forum to adjudicate close calls. The Ethics Committee therefore will give priority to the most egregious cases.
Inquiries or challenges on this topic or others related to Rules of the Code of Ethics may be submitted by ophthalmologists (whether or not they are Fellows or Members of the Academy), other physicians, health care institutions, health care reimbursers, allied health professionals, patients and their families or organizations representing any of these.
Submissions may be sent to: Ethics Committee, American Academy of Ophthalmology, 655 Beach Street, San Francisco, CA, 94109. For the full text of the Code of Ethics, please use this link:
http://www.aao.org/aao/member/ethics/code_ethics.cfm. General questions may be posed to the Ethics Committee via email@example.com.
ANDREA C. TONGUE, MD
Lake Oswego, OR
Child abuse has occurred throughout recorded civilization and has received considerable attention in the medical literature. In 1860, Ambroise Tardieu,1 a French physician, published the results of autopsies performed on 32 children who died of injuries, mainly inflicted by their parents. Caffey, 2 in 1946, suggested that multiple fractures in long bones in infants with chronic subdural hematomas were secondary to trauma. Two of these children also had retinal hemorrhages. Caffey recognized that only trauma could explain the spectrum of injuries, yet he failed to implicate intentional trauma and stated that the injuries could be the result of forgotten or relatively minor traumatic episodes. Seven years later, Silverman3 emphasized that children with multiple unexplained fractures may actually be the victims of trauma intentionally inflicted by their caretakers. In 1961, Kempe organized a multidisciplinary symposium,4 “Battered Child Syndrome,” which was instrumental in alerting the media, professionals, and the public to the problem of child abuse. This symposium was largely responsible for the legislation that protects children. By 1966, all states, except one, had laws mandating that physicians report suspected child abuse.
The first article in the ophthalmologic literature describing ocular injuries resulting from child abuse appeared in 1964.5 It was followed by a number of articles dealing with ocular abnormalities in children suffering from probable abuse. Findings most commonly described were periorbital bruising or edema and retinal hemorrhages. However, these were rarely concomitant findings. Retinal hemorrhages occurred predominantly in children with signs or symptoms of central nervous system (CNS) injuries. In 1974 Caffey6 reported the prominent feature of the shaken baby syndrome: the paucity of external or radiologic signs of injury to the head or neck in infants or young toddlers who had intracranial and retinal hemorrhages. Ophthalmologists may be asked to examine possible victims of abuse to determine whether retinal hemorrhages exist; they may be asked whether the existence of the retinal hemorrhages indicates deliberate or accidental trauma. Although it is possible that certain types of retinal hemorrhages and retinoschisis are a sign of shaken baby syndrome,7 to date there is no evidence that clearly establishes that retinal hemorrhages, be they intraretinal, subretinal, or subhyaloid, are indicative of nonaccidental trauma. Evidence does exist, however, that retinal hemorrhages in all layers of the retina occur in experimental8,9 as well as clinical situations that are not related to child abuse. They are seen in newborns, in some infant eyes after cataract surgery, in infants undergoing extracorporeal membrane oxygenation therapy, in infants with subdural or subarachnoid hemorrhages secondary to accidental trauma, and in infants with bleeding dyscrasias and hemoglobinopathies. Central nervous system trauma (and associated retinal hemorrhages) from abuse occurs predominantly in children younger than 2 years of age and occurs in this age group with much greater frequency than accidental CNS trauma. It is difficult to obtain an age-matched control group of children who present with CNS injuries from accidental trauma to ascertain whether the same type of retinal pathology occurs in this group. Age-matched controls are critical in order to rule out factors in the vascular system, hemodynamics, and immaturity of ocular and brain tissue that may predispose infants to retinal hemorrhages with greater frequency than older children.
In this respect, it is interesting to note that Lange’s fold occurs only in children’s eyes. This fold is a fixation artifact, seen at the ora serrata in post mortem fixed eyes, and according to Yanoff and Fine9 may be caused by greater adhesions of the inner retinal surface to the vitreous base than the adhesions of the retina to the retinal pigment epithelium in this age group. Could this also be a factor contributing to the formation of retinal folds as described by Massicotte et al11 in this month’s issue of Ophthalmology? They describe circumferential retinal folds in the posterior pole of the eyes of three infants, one of whom was presumed to have been shaken only, the other two showing the additional evidence of direct head trauma. Histologically, the folds were associated with vitreous traction, and the authors hypothesize that vitreous traction secondary to shaking is the cause of the folds. They are, however, careful to point out that controlled studies are needed to establish that these folds do not occur in accidental trauma. Of interest in this respect is an isolated case report by Wolter12 describing a circumferential retinal fold in one eye obtained from an adult who died in a motor vehicle accident. The fold was located anteriorly near the ora serrata, and was associated with peripheral epiretinal acellular membranous changes. Of Massicotte et al’s cases, two had peripheral vitreous base hemorrhages and one had hemorrhages posterior to the folds. Clinically, in my experience, the folds have always been associated with adjacent massive hemorrhages. Could massive retinal hemorrhages in an eye that has plasticity of movement of the retina in relation to the pigment epithelium play a role in the formation of the folds?
Until it is unequivocally proven that retinal folds are secondary to dynamic vitreous traction and shaking and not some other factors, it is imperative that we not equate retinal folds with child abuse, just as we cannot equate the presence of retinal hemorrhage with child abuse. Nonaccidental trauma is still a diagnosis of exclusion. The diagnosis needs to be entertained and vigorously pursued if the facts or explanation do not adequately explain the nature or extent of the injury. Careful documentation of the clinical findings in children who have sustained trauma, accidental or deliberate, is critical in establishing the spectrum of physical findings in these patients. Trauma is the culprit; whether it was accidental or not is known only with absolute certainty by the perpetrator or a direct observer. Physicians can and must make an educated assessment as to the probable cause of the injury: accidental trauma or intentional trauma. They should not be afraid to give their opinion as to the probability that the injury could or could not have resulted from the circumstances leading to it. Reports such as the one published in this issue of Ophthalmology are to be encouraged. It must be emphasized, however, that the ophthalmologic findings cannot be reported in isolation; they need to be documented with all of the other physical findings in these children. Most important, a sufficient number of eyes of children who sustain accidental CNS trauma during infancy need to be examined clinically and histopathologically to ascertain whether certain ocular manifestations are pathognomonic for certain types of trauma. By correlating clinical with histopathologic findings, patterns may be established that may more accurately pinpoint the pathophysiology of the injury.
1. [Auguste] Ambroise Tardieu. Cited in Hems M. The “battered child” revisited. JAMA 1984: 251:3295-300.
2. Caffey J. Multiple fractures in the long bones of infants suffering from chronic subdural hematoma. Am J Roentgenol 1946;
3. Silverman FN. The roentgen manifestations of unrecognized skeletal trauma in infants. AJR Am J Roentgenol 1953; 69:413-27.
4. Kempe CH, Silverman FN, Steele BF, et al. The battered-child syndrome. JAMA 1962; 181:17-24,
5. Kiffney GT, Jr. The eye of the “battered child.” Arch Ophthalmol 1964; 72:231-3.
6. Caffey J. The whiplash shaken infant syndrome: manual shaking by the extremities with whiplash-induced intracranial and intraocular
bleeding, linked with residual permanent brain damage and mental retardation. Pediatrics 1974; 54:396-403.
7. Greenwald MJ, Weiss A. Oesterle CS, Friendly DS. Traumatic retinoschisis in battered babies. Ophthalmology 1986: 93:618-
8. Ommaya AK, Faas F, Yarnell P. Whiplash injury and brain damage an experimental study. JAMA 1968; 204:285-9.
9. Smith DC, Kearns TP, Sayre GP. Preretinal and optic nerve-sheath hemorrhage: pathologic and experimental aspects in subarachnoid
hemorrhage. Trans Am Acad Ophthalmol Otolaryngol 1957; 61:201-11.
10. Yanoff M, Fine B. Ocular Pathology: A Text and Atlas, 2nd ed. Philadelphia: Harper &, Row, 1982.
11. Massicotte SJ, Folberg R, Torczynski E, et al. Vitreoretinal traction and perimacular retinal folds in the eyes of deliberately traumatized
children. Ophthalmology 1991; 98:1124-7.
12. Wolfer JR. Circular fixed fold of the retina. Am J Ophthalmol 1965; 60:805-11.
The Court of Appeal decisions and guidance on shaken baby syndrome (SBS) (1) reported by Claire Dyer (2) are disturbing. The Justices justification for the decisions and guidance indicates a basic misunderstanding of the nature of medicine and scientific evidence.
Lord Justice Moses criticism of Dr. Jan E. Leestma as fundamentally flawed is fundamentally flawed. Dr. Leestma wrote the original textbook of forensic neuropathology in 1986. The CRC Press published the second edition in 2009 (3). The new edition includes a unique chapter on injury biomechanics and more than one thousand references not included in the first edition. Most of the new references have been published during the past ten years. Dr. Leestma not only has a current understanding of the medical literature, he has published several articles in the peer-reviewed literature since 2000. The statement that he had not systematically reviewed the literature since the mid-1990s is baffling. How could he have written the new edition of his textbook without the required reading? Further, he had not only read Geddes I and II at the time they were published in 2001, he knows Geddes personally. Leestma is correct regarding APP-positivity in an anoxic background. The lack of an appropriate control group in most published studies, including Reichard, precludes verifiable statements regarding the significance of isolated brainstem axonal damage and its relationship to clinical signs and symptoms.
The Justices clearly do not understand the nature of an autopsy and a consultative practice in the USA. An autopsy is merely a technique to examine and remove organs from a body. The prosector documents his or her findings with a report, photographs, and microscopic slides. The documentation allows anyone, including the person who initially performed the autopsy, to review the findings months and occasionally years later. Studying these organs with an unaided eye and microscope does not require that one actually perform the autopsy. Dr. Leestma has personally examined over twenty thousand brains during his 45-plus year career. He does not need to perform another autopsy or personally examine another brain to make diagnoses based on the gross and microscopic findings. It is incorrect to state that his knowledge emerges from studies of the literature which excluded the important material contained in Geddes I and II and Reichard. Geddes herself will tell you that medical science simply does not know how to interpret isolated brainstem axonal damage in the face of hypoxic-ischemic injury.
Experience is valuable. However, a physician must differentiate experience (anecdote) from evidence. He or she must link experience to the scientific method. Eminence-based medicine is not evidence-based medicine, as emphasized by the US National Academy of Sciences report regarding scientific testimony in the Courts (4). Dr. Al-Sarrajs up-to- date experience may merely allow him to repeat an initial error with increasing confidence (5). His denigration of biomechanical studies is absurd. He may not understand injury biomechanics, but others do. The Justices note that the Court in the Cherry appeal described the science of biomechanics as complex, developing and (as yet) necessarily uncertain. The science may be complex and developing, but it is by no means uncertain. Biomechanics is the fundamental tool for injury evaluation. One learns biomechanics by studying biomechanics, not by performing autopsies. If Al-Sarraj and others doubt the biomechanical science behind our understanding of injury mechanism, they must be willing to use non- seatbelt and non-airbag-equipped vehicles, allow their children to ride unrestrained in the front seat of their automobile, play on swings over asphalt surfaces, and engage in contact sports and recreational activities without appropriate protective gear. The advances made through the science of biomechanics as it relates to our understanding of injury mechanism and prevention in these everyday activities is the same scientific, evidence-based approach used to evaluate pediatric brain injuries in cases of alleged abuse. The brain is not sensitive to the intent behind the injurious forces acting upon it. The same laws of physics apply to accidental and non-accidental injury, regardless of what Al-Sarraj and others might believe.
Whether a proposed expert is still in practice is unimportant. Consultation is the practice of medicine. Consultation involves the same skills as examining a living patient or performing an autopsy. Whether or not someone has recently seen a case in his own clinical practice is also immaterial. Leestma and others have not seen a case of shaken baby syndrome (SBS) in the last fifteen years for the simple reason that SBS does not exist, regardless of the experience of Al-Sarraj et al. There has never been a witnessed shaking in which a child suffered any injury. There is no scientifically acceptable evidence that shaking a child can cause subdural bleeding, retinal hemorrhage, or an encephalopathy. The only evidence is the confession literature. However, none of the published confession studies includes specific details of the confession, the circumstances under which it was obtained, and a correlation of the confession with the actual injuries (6-8). It is noteworthy in this regard that at least 20 percent of those found to be factually and indisputably innocent through the work of the Innocence Project had confessed to the crime in question (9). It may be possible to kill a young infant or neonate by shaking, but the mechanism of injury will be major structural neck damage, not cerebral damage or subdural bleeding. The author of two recent Law Review articles has called shaken baby syndrome the next innocence project (10-11). Changing the name from SBS to abusive head trauma, as recently adopted by the American Academy of Pediatrics (12), does not alter the issue.
Widely held but incorrect beliefs in medicine are not uncommon. For example, the established view until recently was that stress and too much acid caused chronic gastritis and peptic ulcers. Therapy followed belief, and included both medical and surgical intervention. Two future Nobel Prize winners used the scientific method (including application of Kochs postulates) to disprove the prevalent belief in 1982. The extent that a view is widely held is not a valid criterion to evaluate a medical opinion. What is relevant is application of the scientific method to assess the belief. The Courts must critically evaluate the reasoning process by which the experts connect data to their conclusions in order for courts to consistently and rationally resolve the disputes before them (13). The Courts must examine the steps used to go from A to B, not the experience or pedigree of the person giving the opinion. Lord Justice Moses, referring to defense witnesses, states, such experts are, usually, engaged only in reviewing the opinions of others. Nonsense. Case review is an intense, detailed, and thoughtful process. It is not a brief clinical encounter. When we review a potential infant injury, we examine the birth records, the well-baby records, all hospitalization records, the police reports and scene investigation data including photographs, and all autopsy findings (if a death occurred) including photographs and microscopic slides. The opinions of others is secondary. We defer to evidence, not opinion. The Justices sound reasons relating to his [Leestmas] experience in comparison with Dr. Al-Sarraj for rejecting what he told us are not sound at all.
The Justices would do well to remember William Harveys admonition almost 400 years ago: I tremble lest I have mankind at large for my enemies, so much doth wont and custom become a second nature. Doctrine, once sown, strikes deep its root, and respect for antiquity influences all men. Still, the die is cast, and my trust is in my love of truth, and the candour of cultivated minds. (William Harvey, On the motion of the heart and blood in animals, 1628.)
References:1. Dyer C. Court of Appeals issues guidance on shaken baby syndrome. BMJ 2010; 340:3318.
2. Royal Courts of Justice, Case No: 2007/6546/D4, available athttp://www.bailii.org/ew/cases/EWCA/Crim/2010/1269.html. Last accessed June 26, 2010.
3. Leestma JE. Forensic Neuropathology (Second Edition) CRC Press, Taylor and Francis Group, 2009.
4. Available at: http://www.nationalacademies.org/morenews/20090218.html. Last accessed June 26, 2010.
5. Wilkins B, Sunderland RS. Head injury abuse or accident? Arch Dis Child 1997;76:393-7.
6. Leestma JE. Case analysis of brain-injured admittedly shaken infants. Am J Forens Med Pathol 2005;26:199-212.
7. Leestma JE. SBS: Do confessions by alleged perpetrators validate the concept? J Am Phys Surg 2006;11:14-16.
8. Starling SP, Patel S, Burke BL, Sirotnak AP, Stronks S, Rosquist P. Analysis of perpetrator admissions to inflicted traumatic brain injuries in children. Arch Pediatr Adolesc Med 2004;158:454-8.
9. Available at: http://www.innocenceproject.org/index.php. Last accessed June 26, 2010.
10. Tuerkheimer D. The next innocence project: shaken baby syndrome and the criminal courts. Wash Law Rev 2009;87:1-58. Available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1354659. Last accessed June 26, 2010.
11. Tuerkheimer D. Criminal justice at a cross roads: Science- dependant prosecution and the problem of epistemic contingency. Alabama Law Rev 2010 (in press). Available at:http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1579394. Last accessed June 26, 2010.
12. Christian CW, Block R; Committee on Child Abuse and Neglect; American Academy of Pediatrics. Abusive head trauma in infants and children. Pediatrics 2009;123:1409-11.
13. Brock v. Merrell Dow Pharmaceuticals, Inc., 874 F 2nd 307 (5th Cir. 1989).
John Plunkett, M.D. Forensic Pathologist. Welch, Minnesota USA
Patrick D. Barnes, M.D. Pediatric Neuroradiologist. Stanford, California USA
Thomas L Bohan, PhD, JD Physicist. Immediate Past President, American Academy of Forensic Sciences. Peaks Island, Maine USA
Harry J. Bonnell, M.D. Forensic Pathologist. San Diego, California USA
Thomas Carlstrom, M.D. Neurosurgeon. Des Moines, Iowa USA
James T. Eastman, M.D. Pathologist. Madison, Wisconsin USA
Steven Gabaeff, M.D. Clinical Forensic Medicine/Emergency Medicine. Sacramento, California USA
John G. Galaznik, M.D. Pediatrician. Northport, Alabama USA
Horace B. Gardner, M.D. Ophthalmologist. Manitou Springs, Colorado USA
Julie Mack, M.D. Radiologist. Hershey, Pennsylvania USA
Marvin E. Miller, M.D. Pediatric Geneticist. Dayton, Ohio USA
Janice Ophoven, M.D. Pediatric Forensic Pathologist. Woodbury, Minnesota USA
Peter J. Stephens, M.D. Forensic Pathologist. Burnsville, North Carolina USA
Shaku Teas, M.D. Forensic Pathologist. Chicago, Illinois USA
Kirk L. Thibault, PhD. Biomedical Engineer. Lester, Pennsylvania USA
Larry E. Thibault, Sc.D. Biomedical Engineer. Lester, Pennsylvania USA
Ronald H. Uscinski, M.D. Neurosurgeon. Washington, D.C. USA
Competing interests: Many but not all of us have consulted and testified for the defense in alleged infant injury cases.
The scientific method, a time-honored approach for discovering and testing scientific truth, does not and cannot work for the forensic sciences in its standard form because it does not work for past events. Past events cannot be observed, cannot be predicted or deduced from physical evidence, and cannot be tested experimentally. The forensic scientific method is a modified form of the scientific method that compares anamnestic evidence obtained by investigators with observable physical findings discovered at the crime scene, in the crime laboratory, or in the autopsy suite. This comparison verifies if witnesses or suspects are telling the truth about what they witnessed. The method is a powerful technique for determining the truth of past events. Unfortunately, a confused reliance on the standard scientific method for past events can lead to mistaken conclusions. The Shaken Baby Syndrome or Shaken Infant Syndrome hypothesis is one notable and regrettable example.
http://www.lawbravos.com – For those accused of shaken baby syndrome, there is legal help. The Law Offices of Zachary Bravos pride themselves representing clients with difficult, complex, novel, and sensitive matters. In keeping with that view, they have helped clients in such varied and seemingly disparate areas ranging from psychiatric and medical malpractice, to false allegations of child abuse, serious personal injury, complex business disputes, and complicated trust and estate litigation.
Shaken baby syndrome theory, by whatever name it morphs into, which holds that a small dead child displaying certain limited soft tissues pathologies but no other injuries was shaken to death by the last person who held the child when he or she was conscious. Of all the questioned forensic theories and practices, this is the one I would put at the top of the list for the threshold examination. Of all the currently questioned practices, this is the only one asserted by a respectable minority of specialists to be completely invalid. While a vitriolic dispute continues between the pro and con groups, defendants continue to be sentenced to exceedingly long prison terms based on the theory. While the theory’s supporters accuse the doubters of profiting from defending baby-killers, the doubters label the supporters as zealots lacking any knowledge of physics or of the scientific method. It is long past time that an authoritative body outside the adversarial system examined the underpinnings of the theory and published its results.
Strengthening Forensic Science A Way Station on the Journey to Justice
“In any legitimate justice system, … truth must play a paramount and integral role…. The very survival of the rule of law depends not only on a justice system that administers the law fairly, but a system that is just by being well-grounded in … truth….[M]ore research is needed in the techniques and science already in use. With the importance of forensic science to truth and justice, the science employed and relied upon by judges and juries must be valid. It does not matter how well forensic scientists abide by testing protocols, or how reliable the techniques are, if the underlying science does not actually reveal what the expert says it does. Method validation studies and new research must be on-going even in the area of traditional forensic disciplines.”1 [Emphases added.]—Kenneth E. Melson, President, AAFS, 2003–2004
Melson’s words, published 6 years before Strengthening Forensic Sciences in the United States: A Path Forward2 was issued saying much the same thing, made me immensely proud to be a member of the American Academy of Forensic Sciences. So much so that I placed a special order for reprints of his essay to show others what the Academy stood for. The absence of any anti-defense-bar attitude in this writing by a career federal prosecutor further strengthened its explicit message: the duty of all in the criminal justice system is to seek out the truth and act on it. Although, because of the inherent asymmetry of the system, this duty falls more heavily on prosecuting attorneys than on defense attorneys, it must be the touchstone for all forensic science practitioners. Their allegiance, our allegiance, must always be to the truth. Although this may seem too obvious to merit stating, this is clearly not the case as long as we have crime lab directors who speak of defense attorneys as “the enemy.” It is not the case as long as anyone questioning an established forensic practice is labeled a “defense hack” or told “well, I don’t know how you stand on law enforcement.” As one whose work in criminal matters is with the prosecution as often as with the defense, I find these attitudes reprehensible and the antithesis of the view set out in the words cited at the top of the page. The counterpart of these attitudes on the civil side is found in forensic practitioners who, at the behest of their employing attorneys, destroy their notes or never create them, in order to avoid writing down a truth that can in some scenario assist the other side.
Melson’s essay appeared as we were beginning to grasp the magnitude of the wrongful convictions brought to light through forensic science and the efforts of the Innocence Project. It was quickly found, again largely through efforts of the Innocence Project, that the wrongful convictions arose from incompetent defense attorneys, unethical prosecutors, misguided reliance on “eyewitnesses,” and flawed forensic testimony, occurring either singly or in combination. Scores, and then hundreds, of persons were discovered to have been convicted of heinous crimes of which they were innocent. Even as this depressing news was being assimilated, we realized that we were seeing but a small fraction of the total: those wrongful convictions discoverable through forensic DNA analysis. Criminal acts leaving no DNA, by far the largest category, are prosecuted using the same procedures and evidence types that led to the known wrongful convictions. For example, eyewitness testimony, in spite of mountains of peer-reviewed studies showing it to be perhaps theleast reliable type of evidence, continues to be considered the strongest evidence by most laypersons and many judges. Consequently, it remains an effective means of gaining convictions even in the absence of other evidence and even when the testimony is from a single witness. Unfortunately, it is going to be a long time before this flaw in our justice system can be eliminated, and longer still before consideration will be given to reversing single-eyewitness convictions. Another problem that will be difficult to solve in the short term is the conjunction of incompetent defense work and incompetent forensic testimony. Although appeals claiming insufficient assistance of counsel do get considered, the odds against success for such efforts are very high. This leaves forensic science as the single part of the system amenable to near-term improvement.
Although the trials known to have led to wrongful outcomes rarely turned on forensic testimony alone, there appears to be a reasonable likelihood that, had the forensic work been correct, the outcomes in those trials would have been different. Therefore, flawed forensic testimony cannot be absolved from blame just because it was not the sole cause of the bad outcome. For the most part, that flawed testimony was delivered by an incompetent or overreaching practitioner. However, the National Academy of Sciences report that arose in part from concern about wrongful convictions quite rightly went further than simply calling for better supervision and certification of forensic practitioners. Stating that many common crime-lab forensic practices had never been scientifically validated, the report called for research to determine which practices were valid and over how broad a range of application the validity existed. It has been noted that during the months immediately following its release, the report did not have a significant effect on criminal trials, including those in which the prosecution was relying on the same types of evidence criticized by the report. This lack of immediate response may be due to the conclusory manner in which the criticisms were framed. Although, given the breadth of the study, this brevity with respect to specific practices is understandable, it means that more review work needs to be done. An illustration of what remains to be done is provided by other National Academy of Sciences reports on forensic practices, such as that regarding the use of polygraphs3 and that regarding the use of trace-metal analysis in bullets.4Those earlier reports tick off all of the studies claimed to have validated the practice in question, then describe strengths and weaknesses of those studies as support for opining that the practice in question has not been validated. With respect to the pattern-based techniques the latest report criticized, the tabulation of prior studies needs to be done. As it stands, the report’s conclusions about lack of validation have not been accepted by practitioners of the questioned practices, most of whom continue to cite studies that they claim constitute validation. This contrasts, for example, with the effect of the cited National Academy of Sciences report on trace-metal analysis of bullet lead. Once that report issued, there was an immediate and complete cessation of attempts to proffer evidence based on the use of the criticized technique.
The studies that Melson, the National Academy of Sciences, and the American Academy of Forensics Sciences call for will have several benefits in addition to the direct one of establishing the ranges of validity of commonly used forensic theories and techniques. For example, they will help call the attention of judges and trial attorneys to basic forensic facts. What if the Montana judge or defense attorney in the hair-morphology travesty-of-justice trial had possessed the then-widespread knowledge that basic hair morphology is worthless for individualizing hair specimens to a defendant? What if the judge in the Willingham case in Texas5 had been aware that scientific studies had eliminated from fire investigators’ armamentarium the rule-of-thumb analysis of the prosecution’s expert witnesses?
In summary, what is needed immediately is a series of validation investigations. A validation investigation is a threshold study to determine whether a technique or theory the scientific validation of which has been questioned has in fact already been scientifically validated. This is a necessary first step in each instance, given that the practitioners of the respective techniques claim with some heat that their practices have already been validated. In order to secure their needed cooperation in studies aimed at finding the limits of reliability of these practices, a body with the recognition and respect of the National Academy of Sciences must first investigate whether the practice has already been validated, and, if so, what the limits of its validity are. More importantly, once the investigation is complete, this body must publish a definitive report on its conclusions. These threshold studies would not involve any experimentation or lab research, but rather an examination of all the prior studies (especially those reported in the refereed literature), that the practitioners believe have established the validity of their practices.
There will be three possible outcomes to the threshold studies. One, an unlikely one, will be that the practice in question has already been validated. The second, more likely one, is that it has not been validated, at least with regard to determining its range of validity. The third outcome would be, like that of the “bullet-tracing” method study, a finding that the theory or practice was invalid. A particularly important potential example of the latter is the so-called shaken baby syndrome theory. If the critics of this forensic theory are correct, there will be thousands of convictions and plea bargains to be re-examined. Yes, plea bargains, since most such bargains are entered into by defendants convinced that if they go to trial they will be convicted and sentenced to much longer terms than they can obtain through a deal with the prosecutor.
It should be obvious to all that the forensic practices that have come under serious challenge should be subjected to these validation studies. Calling for them is not a defense scheme for getting criminals released or acquitted on a technicality. It is an effort to prevent persons from being wrongfully convicted, to release those who have been, and to redirect law enforcement resources to the apprehension of the actual criminals.
The National Academy of Sciences February 2009 report drew the complaint from some that it had attacked the field of forensic science and, what in a perverse manner carried much the same message, the assertion that it had not attacked forensic science. Given the definition accepted by the AAFS among many others that forensic science is the application of science to questions arising in law, it is difficult to see how it is possible to attack “forensic science.” The report was in fact a criticism of the U.S. justice system for its misuse of science and of the individuals and laboratories who would misuse science. It was an attack on those who use nonvalidated applications of science in prosecuting defendants. It was an attack on those practitioners who claim zero error rate for their work and those who assert that only they are qualified to determine whether their methods are valid.
Another concern raised by those resisting a systemic examination of questioned forensic practices is that this examination will lead to a disruptive witch hunt or fishing expedition (depending on one’s taste in metaphors). This is far from being the case. Although scientists in different forensic specialties may be able to add a few practices to the list, I believe that it is fairly complete in terms of those practices that have been identified by the National Academy of Sciences and others as needing evaluation, that is, those that have come under questioning that is not frivolous. Some examples of the practices needing threshold studies follow:
As people of good will across the criminal justice system have grappled with how to implement the strengthening of forensic science called for by the National Academy of Sciences, I have been struck by the composition of those invited to partake in this crucial work. In particular, I have been struck by the near-absence of scientists from this group. I have heard lobbyists without the slightest idea of what scientific research consists of call for “research but not so that it interferes with our solving the most important problems.” I have had the experience of being in a roomful of people discussing the form legislation addressing scientific issues in the forensic arena should take and realizing that I was the only person present who had spent any time at all doing scientific research. It seems obvious that a broad swath of scientists should be engaged in examining each forensic technique about which serious questions have been raised. In determining the degree, for example, that handwriting comparison analysis has already been validated there should of course be an expert in that field. However there must also be statisticians and indeed scientists and engineers familiar with the examination of evidence. As stated above, this study and the threshold studies in other areas will not involve direct research of the type needed to validate the practice in question. Rather, they will be examinations of the professional literature in the field, including especially that put forth by practitioners to support the proposition that validation has already taken place. Until an authoritative body such as this has reached a conclusion as to what has already been validated and what has not, very little progress is likely in the basic validation research. Those tests that will ultimately be indicated are nontrivial undertakings and will not be undertaken until those who can carry them out are convinced of their need.
This is a crucial period with respect to forensic science in this country. The 2009 National Academy of Sciences report on forensic science in the United States has opened an opportunity for beneficial change that will soon be gone, gone for the foreseeable future. We must take advantage of it to erect the framework now that will instill and ensure a continuing robustness throughout all of forensic science. The result of this work will be to the immeasurable benefit of us all, because it will be of benefit to the American system of justice.