1 Pathology and Neuropathology

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PathologyandNeuropathologyintheForensicSetting

Jan E. LEEstma, mD, mmELainE WhitfiELD sharp, JD

ThePathologistandtheJusticeSystem

Medical proessionals have had a long history o providing valued services to the legalproession as advisers, experts, and sometimes also as attorneys. Te legal system has ofen

looked to the medical proession or guidance in attempting to oer justice to the people.Many times this service is advisory to the court, as a so-called riend o the court (amicuscuriae) regarding interpretation o complex issues o a medical–technical nature. Moreofen, medical proessionals are approved, selected, and may be engaged by the court or jury (triers o act) to assist counsels or prosecution or deense in their cases and the courtin its judgments. In the course o legal history, the role o the expert (medical and other-wise) has had varying inuence on the judicial process and has been subject to evolvingstandards beore the court that will be discussed in detail in Chapter 2.

Most ofen, a responsible government entity looks to a pathologist to certiy deaths that

are not otherwise certied by a practicing physician who had knowledge o the deceased.In years past the bulk o such work was done by hospital pathologists on a contractualbasis, but in recent years orensic pathologists have assumed much o this role. Te orensicpathologist generally unctions within the ramework o a state, county, or city govern-mental agency in an ocial, volunteer, or consulting capacity. He or she may work withina coroner’s system, in which an appointed or elected ocial, not necessarily a pathologistor even a physician, is responsible or the administration o the oce. Tere has been atrend toward development o medical examiner systems in which administrative direc-tion is provided not only by a physician pathologist but also by a board-certied orensic

pathologist who supervises a sta o other orensic pathologists. Whatever the system, themission o the orensic pathologist, regardless o his or her position, is essentially to gener-ate a death certicate under circumstances specied by statute.

CertifcationoDeath

Although any licensed physician is empowered to sign a death certication, it requently may all to a coroner or medical examiner to generate such a document because there are

circumstances that call or a orensic analysis or there is no physician who is willing or ableto generate a death certicate or a given individual. I involved, in whatever capacity, thepathologist must endeavor to determine, by whatever method he or she deems appropriate,the medical cause or causes that led to a death and also the manner o death. In most statesor other governmental units, the manner o death must all into one o ve categories: homi-cide, suicide, accident, natural, or undetermined. Tis quasi-judicial assignment has beencriticized by many orensic pathologists as ofen being arbitrary, conusing, prejudicial, and

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limiting. Various replacement terminologies have been suggested. Nevertheless, the judg-ment as to which category a given case belongs resides with the coroner/medical examinerand the orensic pathologist. Tese determinations are based on the best interpretation o all the available acts or may be determined by a coroner’s jury or coroner’s inquest (in the

case o a coroner’s system and certain local practices). Te determination o the cause andmanner o death must appear on the certicate o death, which over the years has becomea nearly standard document in the United States. o ampliy the inormation provided onthe certicate, contributing causes o death may also appear.

Although the types o cases and the manner in which they come to the attention o theauthorities may vary slightly rom place to place, according to either convention or statute,in general, the medical examiner or coroner must be notied when [1–4]:

1. An individual has died and there is no one who can or will sign the death certicate(unattended by a physician), or a body is unclaimed

2. Tere is evidence or suspicion o oul play, accident, criminal abortion, or suicide(violent or unnatural death)

3. An individual dies suddenly and unexpectedly while in apparent good health (ounddead)

4. An individual dies within 24 hours o admission to a hospital5. Death occurs under anesthesia during an operation, childbirth, or therapeutic

procedure

6. Death occurs during incarceration or while in police or institutional custody 7. Death occurs in the workplace or the possibility exists that death was due to a toxicagent

8. Death may be due to some cause that poses a threat to public health9. A body is to be cremated, dissected, or buried at sea

When notied by a hospital, nursing home, police, or other ocial, the medical exam-iner or coroner must determine whether the case alls within his or her jurisdiction. I thisis ound to be so, the medical examiner/coroner, or designee, must determine the cause

and manner o death and generate a death certicate beore any disposition o the body may take place. Inormation regarding the circumstances o death may be obtained rominvestigative sta, personal observations, and interviews at the scene, as well as observa-tions o police or other ocials or o medical personnel who may have been associatedwith the case. Te method o collection o inormation and evidence in any case variesenormously rom location to location and may be perormed by the coroner or medicalexaminer, the police or other law enorcement agencies, the state or local health depart-ment, the state or local crime laboratory, etc. In special cases ederal agencies or the mili-tary may be involved, as in the cases o transportation accidents; deaths in or near military

or governmental acilities, Indian reservations, or institutions; deaths on a large scale, asin natural disasters or terrorist attacks; and suspicious or violent deaths o military, dip-lomatic, governmental, or elected ocials. In addition, in the course o investigating spe-cial crimes (civil rights violations, kidnapping, environmental disasters, sabotage, terroristactions, espionage, etc.) or crimes involving interstate issues, ederal authorities may havespecial authority and responsibility that may involve but rarely supersede those o the localmedical examiner/coroner.




pology d neuoology e foec seg

Based on preliminary data, the coroner or medical examiner may elect not to examinethe body in detail and may “certiy” death with or without taking blood or other uids ortoxicological examination. As an alternative, it may be decided a more detailed examina-tion is indicated that may include a complete postmortem examination. In most locations,

the coroner or medical examiner is able to request a postmortem examination without thenecessity o obtaining permission rom the next o kin and may also have the power o sub-poena to secure evidence or interview persons in connection with the death or may haveother powers [3]. When there is some argument or objection to an autopsy or any otherunction in the death investigation on the part o the next o kin or personal or religiousreasons, the issue o whether a orensic autopsy will be perormed or whether the investiga-tive method is appropriate may have to be resolved in court.

TheForensicAutopsy

When an autopsy or orensic purposes (determination o cause and manner o death) isperormed, the designated pathologist generally has wide latitude in the methods to beemployed. Tese may include nonstandard incisions or dissections (as compared to usualhospital autopsy) and retention o any body parts deemed necessary [1, 3], including dis-section and retention o projectile wounds to any part o the body and dissection o thehead, neck, spine, and extremities, with removal and retention o bones and other tis-sues i needed. I necessary, the entire body may be retained or whatever period o time

is required to complete the investigation. Te orensic pathologist may not be ocially concerned with all the medical aspects o a case, but only those that bear on the ability toidentiy the deceased, establish natural disease processes that might be present, establishany injuries that may have an exogenous or inicted basis, and determine the cause andmanner o death. Tis goal-directed approach is ofen criticized by hospital pathologists asbeing “sloppy” or unenlightened; nevertheless, it is appropriate that the orensic patholo-gist perorm the procedure required and that the hospital pathologist should do the same.Ofen the orensic autopsy is ar more detailed and rigorous than any hospital autopsy, orreasons dictated by the acts surrounding the case and the act that the autopsy rate has

allen in hospital deaths and many pathologists emerging rom training programs havecomparatively little autopsy experience or interest in the process.

From time to time, unanswered medical questions come back to haunt the orensicpathologist, especially in cases in which a civil suit is brought regarding the death, wherethe issues may involve underlying or coexistent disease in an individual whose immedi-ate cause and manner o death are obvious, or example, in a vehicular accident in whichthe victim is burned. In recent years, there have been successul suits that have won huge judgments against deendants in product liability and other liability actions, and many cases are proving to be highly complex and to rely heavily upon pathological expertise

not envisioned or employed previously. For example, in claims against automobile manu-acturers that allege aulty design o uel tanks, and with state laws that allow or punitivenancial damages or “conscious pain and suering” prior to death, it may become neces-sary to exhume and completely autopsy victims who had been quite properly “signed out”by orensic authorities as having suered accidental death due to trauma or burning afer a visual inspection o the body and toxicological examination o blood. Such reexaminationsmay be required to gain insight into whether traumatic injuries underlying the burning or





other scenarios were sucient to render a victim unconscious and thus oblivious to theinjuries that ollowed. One might argue that the medical examiner/coroner pathologistshould have developed this inormation initially and extended his or her responsibility toavoid any later questions, but strictly speaking, he or she is not compelled to perorm stud-

ies to suit other parties, only to ulll the statutory responsibility. It is in cases where com-plex medical or unctional questions arise in connection with litigation that the consultantneuropathologist or another subspecialist may be asked to become involved.

On many occasions, or one reason or another, a valid autopsy permit may have beenobtained on a coroner’s case i the death occurred in a hospital or other medical care insti-tution. In such a circumstance, the coroner or medical examiner may deputize or elect topermit the hospital pathologist to perorm the examination, with the stipulation that acopy o the report be sent to his or her oce in due course, or he or she may preempt thisexamination and direct that the body be transported to an ocial acility. At times there

may be considerable negotiation over who will perorm an autopsy, especially when a givencase proves interesting or important or medical reasons to the physicians who had caredor the deceased, but ultimately the medical examiner/coroner has the last word.

Tere is ofen an issue about witnesses who wish or demand to attend an autopsy.Practices vary widely on this matter. Many pathologists do not wish to have police, orother nonmedical personnel present, whereas others allow all manner o persons with various interests to attend. Regardless o what standard is adopted, the pathologist shouldnot permit intererence or inuence with the task at hand to occur. Te standard is that thepathologist should be unbiased, uninuenced by desired outcomes or opinions, and ollow

the acts and ndings as they unold, regardless o where they lead. Further, the autopsy isa solemn and serious aair and the pathologist must prevent, i possible, any exploitationo the proceedings or violation o the deceased’s right o privacy.

TheNeuropathologist’sRoleinForensicPathology

o the public and probably the legal proession, the eld o pathology, and specically neuropathology, is not understood except in vague terms inuenced by popular television

and mystery novels. Pathology is a recognized medical specialty with many subspecialty divisions, most o which have their own board certications by the American Board o Pathology [5]. Pathology is the study o disease in all its orms, how it maniests in the vari-ous organ systems, the mechanisms by which disease occurs, how it progresses, how thebody attempts to overcome the disease process, and how it kills. Te eects o treatment,pro and con, are also important in pathology. It should be remembered that disease isany internal or external alteration in normal body unction caused by genetic abnormali-ties, toxins, physical orces, neoplasms, inectious agents, autoimmunity, electromagneticorces, and radiation, alone or in combination. Te pathologist must have knowledge o the

basic physical, chemical, and biological sciences as well as a good working knowledge o allthe branches o medicine in order to accomplish his or her mission. As a practical matter,the pathologist, in general, is not a clinician and does not treat patients as would a surgeon,internist, pediatrician, etc., though he or she may have had training at one time in a clini-cal specialty. In practice, the pathologist relies on the proessional literature, laboratory sciences, radiology, and perormance o an autopsy or examination o various tissues todiscover what disease processes might be operating in a given case and how they might





have interacted. Te neuropathologist does the same things, only within the more ocused

context o the nervous system. Pathologists may unction within the context o a medi-

cal care acility, teaching acility, the military, coroner/medical examiner acility, or other

settings that may include government and industry. Te job requirements vary rom envi-

ronment to environment. In the health care environment the pathologist’s work productis directed ultimately to patient care and assisting the clinicians as well as the teaching o

students, residents, and ellow physicians. In the orensic environment, the work product,

as noted above, is mostly directed to determining cause and manner o death and provid-

ing inormation to the relevant governmental agency.

In the perormance o their duties, orensic pathologists (coroner/medical examin-

ers) may enlist whomever they desire to assist with the primary mission—the determina-

tion o the cause and manner o death. Tis ofen involves the use o expert consultants

such as orensic dentists (odontologists), orensic anthropologists, orensic psychiatrists,biomechanicians, and neuropathologists. With regard to the latter, until recently there

were very ew neuropathologists working on a regular basis with orensic pathologists in

coroner/medical examiner acilities, but with the declining hospital autopsy rate and the

corresponding scarcity o good neuropathological autopsy material, more and more neu-

ropathologists have sought out orensic pathologists as a source or good teaching material

and have taken on the challenge o orensic work in their disciplines. In addition, with

more and more proessionalism in orensic pathology, the increasing prevalence o medi-

cal examiner systems, and the well-known concentration o neuropathological problems

in the orensic pathology caseload, the need or subspecialty neuropathologic inormationhas created the demand or neuropathological consultations, and a signicant number o

pathologists now have training and board certication in orensic pathology as well as

neuropathology and unction within coroner/medical examiner systems.

Te issues that may involve the consulting neuropathologist include a wide range o

problems, many o which will tax his or her ingenuity and proessional skills. Examples

include dierentiation o injuries caused by blows vs. alls, interpretation o alleged acci-

dental craniocerebral injuries in suspected child abuse cases and their probable or pos-

sible mechanisms, determination o the unctional signicance o brain lesions, analysis o

various diseases that maniest themselves as sudden and unexpected death, and accident

reconstructions based on probable neurological decits caused by central nervous system

(CNS) lesions discovered at autopsy (a orensic clinical–pathological correlation). In addi-

tion, this may involve the diagnosis o unsuspected intracranial disease processes that may

include neoplasms, inectious diseases, malormations, degenerative diseases, neurological

maniestations, and eects o drugs, toxins, and other poisonous substances. An important

aspect o orensic pathology and neuropathology may involve the resolution o matters that

have public health impact, such as diagnosis o various orms o encephalitis, AIDS, prion-

caused spongiorm encephalopathy diseases (Jakob-Creutzeldt and mad cow diseases),and many others. It is obvious that many o these issues are normally beyond the capability

o even the most skilled orensic general pathologist, and it is indeed ortunate that there

is potentially someone well versed in these complex problems who can help. Such increas-

ing interaction between orensic pathologists and neuropathologists, out o necessity and

mutual interest, has dramatically acilitated and improved the mission perormance o

many orensic pathologists in recent years.





WhomDoestheForensicPathologistServe?

In a restricted sense the orensic pathologist serves the governmental and political systemthat employs him or her. In a broader sense the medical examiner/coroner and his or her

pathologists are servants o the public and guardians o the public health and welare. Con-sumers o the service oered by the medical examiner/coroner include many diverse andofen incompatible groups, such as prosecuting attorneys and deense attorneys, the courts,special interest groups o consumers, citizens’ action groups, labor and other unions, newsmedia, commercial enterprises, politicians, insurance companies, hospital administrators,physicians, and riends and relatives o victims. Each group may expect dierent and spe-cic actions rom the medical examiner/coroner, which he or she may not be willing orable to satisy. Tus, in the course o his or her duties, the orensic pathologist may comeinto conict with the very people who employ him or her and must tread a careul linein not only serving the system and its administrators but also serving a greater constitu-ency in an unbiased and ethical manner. Te complexity o this task is illustrated by thedilemma that aces the medical examiner when a governmental ocial or prominent per-sonage dies, when an oender or citizen dies and there are accusations o police brutality,or when some other circumstance arises where the glare o publicity, an inamed public,or media passions intrude into his or her proessional activities. In such circumstances it isofen very dicult to maintain authority, objectivity, condentiality, and security so thata proessional job can be done.

Within this anxiety-producing context, the proessional consultant to the oce mustbe keenly aware o his or her position and that o the orensic pathologist, who also mustcareully examine the existing proessional and ethical responsibilities and act accordingly.Discretion and condentiality are ofen vital, and every consultant must realize that he orshe may not be ree to discuss or share any ndings with riends or colleagues. Tis restric-tion represents a considerable departure rom the usual academic or hospital proessionalenvironment, where interchange o case inormation is ofen unettered and proceeds with-out second thought. However, considerable embarrassment and sometimes legal liabilitiesor complications can result rom indiscrete or nonproessional discussion o happenings or

observations in connection with ocial duties in the orensic setting. I a consultant can-not maintain a proessional demeanor that includes an awareness o proessional privilegeand condentiality, it would be best that he or she not become involved in situations thatdemand these demands. In the end, any opinion or judgment given must be unbiased, ac-tually correct, and based upon the scientically supportable inormation and data.

TheProblemotheManneroDeath

As discussed above, the determination o the manner o death is one o the key responsi-bilities o any ocial orensic pathological examination and is more complex than mightbe realized at rst. On the one hand, the pathologist is uniquely qualied to determinethe medical cause o death o an individual, but on the other hand, his or her competenceor supposed omniscience may be severely taxed in determining the manner o death, orthis judgment involves a synthesis o medical, circumstantial, and physical evidence and,most ofen, simply an application o common sense. In this task the pathologist must rely





on others or inormation that, i collected and recorded properly, enables a cogent analy-sis and determination. However, as is usually the case, ancillary nonmedical inormationis garbled, blurred, partial, absent, or has been lost. Judgment based on such imperectinormation may involve a great deal o conscientious guesswork and thus be open to errorand criticism. Generally or the consultant pathologist (neuropathologist), the most valu-able inormation is objective, i.e., material or inormation that exists in pure uninterpreted

orm, such as autopsy photographs, tissue, microscopic slides, radiographs, and scene pho-tographs and evidence. Medical records represent a valuable inormation source but may or may not be completely actual or complete. Witness accounts and other statements may or may not be true or objective and have to be put in context with the objective evidenceand orm the basis or questions, not answers.

An example o the types o cases by manner o death that one urban medical examineracility (Cook County, Chicago) has encountered can be seen in able 1.1 [6].

Tese gures are not markedly dierent rom similar acilities in the United Statesin the years since 1977. It is obvious that the largest category is the natural manner o

death. Tese types o cases most commonly involve individuals more that 40 years o age,in whom cardiovascular and cerebrovascular disease are the leading etiologies. Tat isnot to say that these cases are always obvious, though many are. For example, i an individual is ound dead at home or in the workplace, without a careul analysis that includesan autopsy, it may not be apparent i the case is a suicide (perhaps by some nonobviousmeans), an accident, a homicide, or a death due to some disease process (natural mannero death). Te signicance o such a determination may involve a double indemnity pay-ment on a lie insurance policy or accidental death, a cancellation o insurance benets i suicide is declared, or an accusation o murder against someone i homicide is determined.

Te ramications o such a decision may mean notoriety, vindication, or ruination o anindividual’s public reputation, not to mention signicant nancial reward or loss.

In some circumstances, it may not be possible or the coroner/medical examiner, ina best good-aith judgment, to determine the exact manner o death, in which case thelabel o “undetermined” may be assigned the case. Tis is, o course, proessionally andintellectually unsatisying and may lead to considerable criticism and second-guessingby others, including the press; nevertheless, sometimes there is no other option than to

Table1.1 CertifcationsbyManneroDeath,CookCountyMedicalExaminer

Natural causes 64%

Homicide 11%

Suicide 4%

Accident (total) ~17%

Drug related 2%

Motor vehicle related 6%

Home/occupational related 6%

Other 5%

Undetermined ~5%

Source: Oce o the Medical Examiner, Cook County,Illinois [6].





admit uncertainty. Te consequences o this classication on disposition o certain oren-sic cases are requently hotly debated. On the one hand, it might be argued that such alabel, undetermined manner o death, will prejudice a state’s attorney rom pursuing anindictment, the police rom pressing an investigation to search or a perpetrator, or other

interested parties rom pressing an issue, but it should be pointed out that this judgmentby the medical examiner/coroner is not the last word. Altlhough this opinion is certainly admissible in court, the inormation contained in the case, plus that developed later, may in other hands (a prosecutor, deense attorney, expert witness, etc.) be developed to yielda dierent opinion. In addition, should other evidence come to light, the death certicatecan be amended to reect a new determination. Te basic concept o this category o deter-mination still stands—that at the time and place o the determination, the best judgmento the pathologist was that he or she could not be sure enough to be more specic. By thesame token, any other manner o death may be subject to interpretation, argument, and

change at some later date as well.

IssuesortheNeuropathologistintheForensicSetting

Tere are a number o issues and phenomena that are part o the special orensic environ-ment o which any consultant, including the orensic neuropathologist, must be aware.Tese include the special mission requirements o the orensic pathologist as outlined aboveand the issue o preservation o evidence and the chain o custody [3, 7], the requirements

and elements o the orensic report, the nature o the interaction with the orensic patholo-gist, and the nature o the interaction o the consultant with the courts, deense, plaintis,and prosecuting attorneys. Tere are many issues that center around the consultant’s unc-tion as an expert medical/scientic witness [8, 9] that appear to be growing more complexwith each passing year. Many o these will be covered in Chapter 2.

PreservationoEvidenceandtheChainoCustody

In the course o the practice o orensic pathology (including orensic neuropathology),

physical or other tangible evidence may be discovered or developed that have subsequentimportance in whatever legal proceeding may occur. Tis may take the orm o physicalobjects or personal eects o the deceased, including objects such as a bullet or projectileragment or other objects discovered in a specimen recovered rom the body or brain at thetime o autopsy or brain cutting, or t may be the actual neuropathological specimen itsel.It may also take the orm o a tissue block, paran block, or microscopic slide derivedrom a given autopsy or surgical examination; notes or drawings o a body, body part, ororgan; photographs o specimens or body parts; or medical or other records pertaining tothe case. It is essential that such evidence or inormation be precisely identied by case,

adequately marked, and preserved by the expert in a logical and secure manner until thecase is concluded, sometimes or a considerable period thereafer. Tis is especially true o objective (physical) evidence such as a bullet or an important specimen that the neuropa-thologist might come to possess [1, 7, 9].

Not only is it important to keep such items secure and marked with sucient inorma-tion so as to provide unambiguous and certain identication o their source, but it may alsobe important to keep a record o where such items were kept, whether their place o storage





was secure, who had access to these items, and also to whom any item was given by whomand when, and when and what was returned. Such a written record documents the chaino custody [7]. Although this sort o obsessional record might seem more than is necessary,there are times when just such a record is required, and its absence might prove not only

embarrassing but also damaging personally and to the administration o justice [9, 10].Such a situation may arise when a bullet has been discovered in a specimen. It is necessary that the object be marked so as not to damage riing grooves (an appropriate place to mark would be the base o the bullet); that it be unambiguously retained in a sealed envelope withthe case identication plainly on its ace with date, time, and place o its acquisition; andthat a receipt record be kept o who had possession or access to the object. It may be neces-sary to produce this record at the time o trial or hearing. I this record does not exist or isawed, it might be possible to cast enough doubt concerning the identity o the projectileand its connection with the case or with the deendant that the evidence becomes worthless,

and an otherwise persuasive case may be terminated or lack o evidence.As a matter o procedure, when any orensic evidence, especially o a physical nature,

is collected by anyone, it should be sealed in some manner, labeled clearly, and securely stored. Tis may apply to a neuropathologist in the hospital setting who may have occasionto examine a specimen containing a projectile such as a bullet. Under some circumstanceslocal law enorcement ocials should be notied o its existence. In any case, i the possessoro this evidence is required or requested to give up custody o this evidence to someone else,a signed receipt should be retained that indicates what was given to whom, when, how, andwhy. When or i the evidence is returned, its identity should be reestablished along with its

condition, and another signed receipt should be obtained (and copy given) that indicateswhen, how, where, and by whom the evidence was returned. Ofen a record o these trans-actions should accompany the physical evidence so as to provide a written chain that estab-lishes the movement o the evidence and its integrity. Such an eort, which need not be inany special orm, will obviate diculties later. A more complete discussion o this issue andtechniques commonly employed can be ound in many standard texts and monographs .

TheForensicNeuropathologicalReport

In many instances when a consultant is called upon to examine case material and render adiagnosis, a written report may be requested, but not always. It may be within the preroga-tive o the retaining counsel or person seeking consultation to request that no report beprepared and that ndings be communicated verbally or inormally. Tat such a request ismade is in no way unethical or improper. Each jurisdiction mandates the rules concerningthis matter. Tere are a number o appropriate reasons or this request. In a civil litigationcase, a report may be “discoverable” by opposing counsel prior to trial, and various usesmay be made o this report that retaining counsels, or their own reasons, may not wish tohave happen. One instance o this may be that the report o the expert may not benet the

client o the attorney and might not be introduced in evidence at a trial (or the expert may not be asked to render testimony). In such a situation, one must remember that the consul-tant may have the burden o work product condentiality to legal counsel and cannot takeit upon himsel or hersel to go beyond the consulting relationship. Tere could, however,be circumstances in which the consultant may have a greater burden o responsibility o disclosure, in which case it would behoove one in such a situation to seek independent legaladvice or a proper course o action.




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Te consultant’s report may or may not be subject to examination by opposing attor-neys, other experts and consultants, and a variety o laypersons, depending upon localpractices and statutes. Occasionally, reports are wittingly or unwittingly released to themedia. It is important, thereore, that any report be prepared with care. Adherence to

general guidelines on the preparation o reports that have orensic import can save muchexplanation later and sometimes prevent embarrassment.

Te consultant neuropathologist’s report should identiy what was examined. In thecase o tissues, a simple listing o what organs were examined may suce. In the case o microscopic slides or photographs, these should be identied in some ashion. I records ordocuments were examined, they should be identied and also listed. In general, a consulta-tive report should consist o a descriptive portion dealing with the observations made onthe material at hand and a separate portion dealing with conclusions based on the observations and the reasons or them, sometimes listing reerences. Te consultant should

inquire o whoever retained him or her as to the orm and content desired in his or herreport beore preparing it. Te expert report may be limited to the expert’s observationsand opinions only or may deal also with an evaluation o the analysis or opinions o others.Te length and depth o the report can be highly variable but, as a practical matter, can-not be expected to cover every conceivable detail o the case in anticipation o every pos-sible question an opposing counsel or anyone might have. Tere are some circumstances,especially in civil litigation cases in many jurisdictions, that mandate that everything theexpert might wish to or be called upon to testiy upon at a trial must, in some ashion, bein the report; otherwise, such possible testimony might not be permitted. Tus, it is impor-

tant to have a rm knowledge o what is required beore writing a report.Te report need not be versed in lay terminology unless requested, but descriptions

should be thorough and precise. I conclusions are to be included, they should be to thepoint and as clear-cut as possible, avoiding conjecture, speculation, overinterpretation,and moral or personal judgments. Diagnoses, similarly, should be as precise as possible.When dicult or complex issues arise, these should be discussed clearly and concisely.Te consultant should avoid wordiness or rambling interjections o personal opinion andshould conne himsel or hersel to the medical issues at hand that are supportable scien-tically. When appropriate, mechanistic conclusions may be included unless specically

requested to the contrary by counsel. Diagrams, photographs, and gures quite properly can be part o a report and may orm an invaluable part o it, especially when the reportcontains descriptions o external lesions, wounds, or injuries. A list o reerences in sup-port o relevant interpretations is ofen appropriate. Care should be taken that these reer-ences are correctly quoted rom and cited. Te pages o the report should be consecutively numbered and the last one signed and dated, usually with a statement to the eect that theoregoing is true to a reasonable degree o medical and scientic certainty. A photocopy or other copy should always be maintained. Some examples o typical orensic pathology reports and consultant’s reports can be ound in several current orensic pathology texts

and articles [11, 12].It should be borne in mind that very ofen, notes and other materials relating to a

report or consultation and the “working le” can be requested o the consultant by oppos-ing counsel and might be subpoenaed (discoverable) or use in depositions, hearings, ortrial. For this reason, care should be exercised in maintaining the working le. When suchmaterials are requested, retaining counsel may request or demand that privileged attorney-client materials be removed. When there are concerns about this, they should be discussed





with retaining counsel, who may need to seek a judicial ruling on the matter. At timessubpoenas will be issued to an expert to turn over an unreasonable volume o materials orpersonal documents that have no bearing on the case. Such requests in practical terms may not reasonably or easily be complied with. In most instances o this type, retaining counsel

should be inormed and can deal with the subpoena, perhaps seeking relie or the expertby a ruling o the court. In any case, a subpoena cannot be ignored and must be obeyed orormally dealt with.

InteractionsotheNeuropathologistwithAttorneys

Te neuropathologist, in the course o normal duties, may come into contact with attor-neys who desire inormation rom him or her. Tere are many circumstances in whichthis can occur, and it is appropriate or the neuropathologist to be aware o them. In some

instances the involvement may be as an inormal consultant, but quite ofen the interac-tion may eventually involve the neuropathologist as a witness requiring an appearancein some orm o legal proceeding. Te parameters o this special orm o interaction arediscussed in detail below. One must be aware o issues o patient condentiality in all sec-ondary consultations.

Interactions in an Official Capacity

I the neuropathologist is involved as a consultant with the orensic pathologists o a coro-ner’s or medical examiner’s oce, it is likely that he or she will be approached rom time to

time by attorneys interested in orensic cases in which a report was generated or in whichthe neuropathologist was involved. Tese attorneys may be rom the state attorney’s oce,the public deender, or a private law rm representing a plainti or deendant. Becausethe coroner or medical examiner in most cases does not, and should not, represent any particular legal interest and as such is, or should be, an impartial observer (a riend o thecourt), the consultant should also assume this position. In general a good rule o thumb,when approached about a coroner’s case on which one has worked, is to inorm the coroneror medical examiner that inormation has been requested and to secure permission beoreconsenting to an interview or responding to a request or inormation. In most cases such

a request is appropriate and permission given, but occasionally this may not be so, in whichcase it is important to remember that, as a consultant, the neuropathologist does not haveprimary responsibility or the case and that the person who engaged his or her services hasthe privilege to restrict access on a ormal or inormal basis. However, one may be com-pelled to respond with inormation or to appear at a hearing, deposition, or trial as a wit-ness i a lawul subpoena is executed, regardless o the wishes o the other parties [13, 14].

The Neuropathologist as a Witness

When a neuropathologist is asked to testiy either in court, at a deposition, or beore some

administrative or quasi-judicial body, in most circumstances this participation has beenagreed to in advance and is a matter o choice. However, there are circumstances when thepathologist may not always be appearing voluntarily—that is, one may have been servedwith a subpoena requiring a mandated appearance. Such instances are rarely withoutwarning and should not be the subject o concern. Te command o a subpoena is lim-ited: the person named must appear on the date, time, and place specied (subpoena ad testifcandum) or may be requested to bring along certain documents or things described





in the subpoena, such as reports, microscopic slides, photographs, notes, or physical evi-dence (subpoena duces tecum). In many instances the issuance o a subpoena is a commonpractice or ormality to ensure that a person, documents, or other evidence is present whenrequired at a hearing, deposition, or trial to allow the orderly unctioning o the judicial

process and does not have any pejorative connotation or the recipient. At times the arrivalo a subpoena is inconvenient or impossible to comply with; in such cases, upon propernotication o the issuing authority, other arrangements can usually be made. Neverthe-less, a subpoena must be taken seriously, or ailure to honor it may result in punishmentor contempt o court that may include imprisonment, ne, or both. When summoned by subpoena, the recipient is required only to comply with the specic terms o the documentand is not required to perorm an additional service, research or preparation, or otherspecial activity as might be the case when a neuropathologist was participating voluntarily as a testiying expert.

In most instances in which a neuropathologist or other proessional has been servedwith a subpoena, it is because the pathologist either has personal knowledge o the actsrelevant to the particular judicial inquiry or has physical possession o relevant materialssuch as slides, tissues, photographs, or reports. For example, the pathologist may haveperormed an autopsy or neuropathological examination on a surgical specimen in con-nection with regular employment, only to learn years later that one’s personal observa-tions and reported ndings are now material evidence in a civil or criminal case wherethat evidence may be important in proving or disproving a crucial material act. In thiscircumstance, the pathologist is considered to be the same as any other act witness in the

case called to give evidence and is not an expert as such. When testiying in this capacity,one usually only receives stipulated witness and mileage ees, which vary rom jurisdictionto jurisdiction. Tese ees are ofen nominal and not adequate reimbursement or the timeexpended. It is thereore appropriate, when served with a subpoena compelling appearanceat a deposition or trial, to inquire o the party at whose insistence the subpoena was issuedwhether it is possible to be paid or time spent at the neuropathologist’s usual hourly rate.In the State o Illinois, or example, the Illinois Supreme Court promulgated a rule thatnow permits a party to pay a reasonable proessional ee to a physician or surgeon or thetime he or she will spend testiying at any deposition, as long as the ee is paid only afer

testimony has been given and is only a reimbursement or time actually spent in testimony [15]. However, some jurisdictions may not permit this practice, so it is important to inquirein every instance and not expect a ee as a matter o right. In any case, no ee or proes-sional services may be contingent on the outcome o the case.

The Neuropathologist as a Retained Expert

Expert witnesses are regularly used in both criminal and civil litigation to perorm animportant unction in the adjudication o disputes, which in most people’s experienceoccurs at a trial. rials may be either criminal or civil, and although there are substan-

tive dierences between them, both involve the adjudication o contested acts. Every trialinvolves someone to act as the trier o act. Tis may involve trial beore a judge only (abench trial) or may involve a jury trial, in which, customarily, twelve people hear the evi-dence and decide on the acts. When a jury is not used, the judge is the sole determiner o act. Regardless o the type o trial, it is the unction o the expert witness to assist the triero act (judge or jury) in understanding the evidence and the acts at issue by testiying asto his or her opinion. Te expert is qualied to perorm this unction by reason o his or





her special scientic, technical, or other knowledge gained by experience or training. Tisunction is ully described in the Federal Rules o Evidence 702 [16]. Tis and other ruleso evidence are provided in Chapter 2.

When a neuropathologist or other proessional is approached by an attorney and asked

to provide assistance or to unction as an expert witness, there are a number o issuesthat should be addressed. Not only must the prospective expert interact with the attorney to dene what one’s role will be in a uture action, but he or she must also make otherinquiries to ensure that one’s participation in the case is possible, is appropriate, and willproceed smoothly and in an orderly manner. Most misunderstandings between expertsand retaining attorneys can be avoided by candidly and simply discussing what each party to the arrangement expects rom the other, and sometimes a letter o retention is in order.

Whom Do You Represent and Who Are the Parties Involved in the Case?

One o the rst questions a prospective expert witness will want to ask o a retaining attor-ney is the identity o his or her client, whether the case is criminal or civil, and i the clientis the plainti or deendant in the legal action. It is important to know this inormationbecause it is possible that the expert may be unable to represent a certain client by virtueo a conict o interest. For the same reason, it is important also to know all the otherparties involved in the case, or it is common or the expert to have many personal andproessional associations, any one o which might create a conict situation. An examplewould be i the expert learns that the chairman o his or her department may have been

retained by opposing counsel or that his or her own institution, or one with which he orshe is or was involved, is one o the parties in the action. Other examples might be havinga relative, associate, or riend as one o the interested parties or some other connection thatis or might be construed as vested interest in the case. Conicts o interest cut both ways.Whereas the retaining attorney may not want a neuropathologist or other expert as a wit-ness i a real or potential conict exists, the expert himsel or hersel may have reasons ordeclining to participate in a particular case, which must be respected.

Te potential conict situation is important, because whenever a witness takes thestand during the course o a trial or other ormal proceeding as a retained expert, cred-

ibility is always at issue. Any time a witness has a demonstrable bias, prejudice, or interestin the outcome o a case, it is reasonable to expect opposing counsel to elicit acts relatingto the alleged bias in the hope o discrediting the witness’s testimony in the eyes o thetrier o act. Disregarding the actual substance o the testimony and the act that everyonelikes to think that one can put aside biases and “do the right thing” when called upon to doso, opposing counsel may argue that the witness, by reason o personal bias, prejudice, or vested interest is not to be believed.

At the outset o an interaction between expert and retaining attorney, care should betaken by both parties to ensure that no disabling conicts exist, or ailure to do so can

result in disqualication or impeachment, not to mention embarrassment o the witnessand attorney should these acts come to light once the case is under way and considerabletime and money have been expended. It is not uncommon that expert witnesses may havehad prior lawsuits against them; these may be subject to examination. Credentials andtheir veracity, including institutional aliations or appointments, must be actual and notembellished. I the witness has ever been prevented rom testiying as an expert, this eventmay come to light. Any diculty with the legal system, including arrests or substance





abuse issues, must be brought to the attention o the retaining counsel. ime taken toexplore these uncomortable issues is always time well spent [13].

Tere may be circumstances in which an expert, once it becomes known that he or sheis involved in a notorious or highly publicized case, may be subject to political pressure

either to not testiy or to provide certain desired testimony. Once the legal proceedingshave commenced and a potential witness has been divulged to the court, such meddling isnot only inappropriate but also unlawul and can ace severe punishment under the gen-eral mantle o witness tampering. I one has become the subject o such attempts, the courtand certainly retaining counsel should be inormed.

What Do You Expect Me to Do?

When a pathologist is approached by an attorney and asked to act as an expert witness inhis or her case, the pathologist should determine exactly what the attorney expects one to

do. Not all experts perorm in the same capacity in every case, and the involvement may bemajor and crucial or relatively minor. Te expert may be asked to serve as a consultant only in the preparation o the case with no requirement or testimony, or he or she may be askedto not only consult but also be prepared to oer evidence at a deposition or trial.

Many jurisdictions have dierent procedures or experts, depending upon whetherthey will be acting as a consultant or testiying expert. For example, in some states theidentity o a consulting expert need only be disclosed to opposing counsel and the courti the attorney expects to call the expert as a witness at trial. However, disclosure may beordered i opposing counsel demonstrates exceptional circumstances under which it is

impractical or a party seeking discovery to obtain acts or opinions on the same subjectby other means [17]. When testimony is anticipated, the expert’s identity must be disclosedwell in advance o trial so that opposing counsel can undertake a pretrial discovery regard-ing the expert’s opinions and the bases or any opinions. Whether discovery depositionsmay be taken is ofen a local jurisdictional matter, though in civil litigation it is generally expected. In some states, criminal cases may allow depositions o experts as well.

l a pathologist would like to do orensic work but lacks the enthusiasm or the adver-sarial aspects o litigation, such as being examined and cross-examined in open court,acting only as a consulting expert is a viable and appropriate option. It is not uncommon

or an attorney to retain a consulting expert to assist in trial preparation and to coordinatethe preparation o testiying experts, as well as to educate the retaining attorney on com-plex medical or technical issues involved in the case, so that he or she may more eectively examine opposing experts and present the case in court. It is certainly within the proes-sional prerogative o an expert to choose to limit his or her participation. A consultingexpert may also be asked to assist in retention o an expert who is prepared to testiy,because an expert is certainly more prepared to know who are the experts in a given eldthan is the typical attorney. Once a prospective testiying expert has been identied, it may be appropriate and desirable or the consulting expert to make the initial contact to deter-

mine whether the individual is even interested in becoming involved. Tis is to the advan-tage o the attorney, because it is more likely that a desired expert will respond avorably toan inquiry rom a colleague, who can vouch or the attorney and provide initial inorma-tion, than to an unsolicited call rom an unknown attorney about an unamiliar case.

A consulting expert may also be o considerable help to retaining counsel by develop-ing a strategy to counter opposing counsel’s expert witnesses, i the expert nds issueswith their proposed testimony, and their testimony as it becomes known. Tis inormation





usually emerges afer opposing counsel identies those experts whom he or she intends tocall at trial. Te attorney will then probably want to take discovery (depositions or inter-rogatories) o those witnesses to learn the subject matter on which the experts will testiy as well as the substance o the acts and opinions and the bases or those opinions that will

be presented at trial. In preparation or taking oral depositions, a consulting expert mightbe asked to research the publications listed in the opposing expert’s curriculum vitae orthe purpose o identiying areas o expertise, probable lines o reasoning or support oropinion, as well as exploitable weaknesses or inconsistencies that might exist. Similarly,the consulting expert may be asked to provide counsel with key literature reerences onthe issue in question so that he or she might acquire sucient background to examine theopposing witness at discovery. Sometimes, the consultant might be asked to ormulatequestions to be asked o the opposing expert. In most cases, an attorney cannot realisti-cally hope to challenge or even adequately examine an expert on such a complex subject

as neuropathology or other medical specialty unassisted, but the same cannot be said ora ellow expert. A testiying expert, unlike a consulting expert, will be expected to testiy at discovery and also at trial and may also be asked to perorm the same unctions as aconsulting expert, and it is the usual case that an expert ullls both roles.

Once the expert’s precise role in the litigation has been dened by questioning theretaining attorney, the next step is to ormalize the working arrangement between expertand retaining attorney. Tis may take the orm o a letter o retention. Te actual orm o such a letter is unimportant, but it should contain certain basic items, including the issueo compensation. Most experts have developed an hourly rate or their services, usually

determined by talking with peers about what they charge or given services. It is appropri-ate to charge dierent hourly rates or compensation or dierent services, or example,reviewing records, reading and research, preparation o a report, examination o micro-scopic slides, examination o a tissue specimen, perormance o an autopsy or neuropatho-logical examination, a special analysis or procedure, testimony at discovery deposition ortrial, travel or extraordinary expenditures o time, and reimbursement or expenses. Someexperts simply charge an hourly or daily ee regardless o what work was done. In spite o the nancial arrangements, there should be an unequivocal statement in the agreement asto who will be responsible or paying the proessional’s ee and when it will be paid. Fur-

thermore, the retention agreement should expressly state that the expert’s ee is in no way contingent upon the outcome o the litigation. Although attorneys commonly take sometypes o cases on a contingency ee basis, an expert must never do so. In many states, i any appearance o contingent testimony by an expert can be demonstrated, this may result indisqualication o the witness or be in violation o the state practice standards.

In What Court Is the Case Pending and What Difference Does This Make?

Whenever a neuropathologist or other expert is retained or the purpose o testiying, heor she will want to know the jurisdiction in which the case is pending. Tis is important

to know because there are dierent procedures regarding expert testimony in dierent jurisdictions, which are governed to a large extent by the prevailing rules o evidence [16]that determine the admissibility and content o expert opinion and testimony as well asthe manner in which these things are presented to the trier o act (judge or jury). TeU.S. (ederal) district courts across the country all use the same rules o evidence, whichhave been codied and are called the Federal Rules o Evidence [16]. Many state and local jurisdictions have also adopted these rules, but many states have their own laws o evidence





in spite o sharing the same historical lineage in English common law [18]. Te practicalimplications o these dierences to the testiying expert involve how the expert’s opinionmay be presented in court. Tere have been many changes in recent years relating to experttestimony and its basis. Tese issues are discussed in detail in Chapter 2. Te nuances o

laws o evidence or every circumstance are not the concern o the expert witness, but itis helpul to be aware o some o the issues relating to admissibility and suitability o tes-timony and how to accommodate these constraints. Te retaining attorney will assist theexpert in any issues relating to the law o evidence and prepare the witness so that his orher testimony can proceed smoothly and without conict.

What Will I Be Required to Do during the Pretrial Phase of the Case?

Whether the expert is retained to act as a consultant or testiying expert, he or she canexpect to be involved during the pretrial phase o the case, as mentioned above, by helping

to prepare the attorney or what is to ollow and to be prepared by the attorney or his orher part in the proceedings. As also mentioned above, it is common or opposing counselto request the opportunity to discover, by means o written interrogatories or oral deposi-tion o the witness, exactly what he or she plans to say, the scope o his testimony, and thenature and bases or his or her opinion. Te underlying rationale or pretrial discovery isto allow both sides to be aware o each other’s case and to avoid what was once typical inlegal proceedings—surprise witnesses and so-called trial by ambush.

Discovery is usually the rule in civil cases, where the practice is rather broad and sev-eral tools exist to acilitate the process, but in criminal litigation, as dictated by local juris-

dictional conventions, the discovery process may or may not be limited and may or may not involve depositions.

TheOralDeposition

As already alluded to, the oral deposition aords attorneys the opportunity to discoverwhat inormation, i any, a witness possesses regarding the subject matter o a civil lawsuitand, occasionally, a criminal proceeding. As long as there is action pending, any attor-ney or a party to the action may ask the court to compel any person connected with the

action, including expert witnesses and material witnesses, to appear at a specied time andplace or the purpose o answering questions put to him or her under oath and subject tothe penalties or perjury. Te person whose deposition is to be taken, the deponent, may also be required by subpoena or otherwise to bring documents, reports, or other evidencewith him or her to the deposition. As ar as the expert witness is concerned, the process isstraightorward.

At the deposition (which may be with all parties physically present, or via videocon-erencing or some other process with only some o the participants physically present withthe witness), a court reporter will transcribe the proceedings. Te deponent rst takes an

oath, administered by a court reporter/stenographer, to swear that the evidence about to begiven shall be the truth. Te expert is then asked questions by opposing attorneys at whoseinsistence the deposition has been taken. All questions and responses are taken down ver-batim by the reporter and orm a permanent ocial record o the proceeding. Te depo-sition may be brie or take days to complete. At times the deposition may be videotapedor later use in lieu o in-person testimony at trial. Te initial questions usually involve areview o the training and education as well as institutional aliations o the witness and





also the time and circumstances under which he or she was retained by counsel. Inqui-ries may be made regarding the expert’s testimony and case history. In ederal courts,the expert may be asked to provide a list o cases in which sworn testimony was given orthe previous 5 or more years. In some state jurisdictions, this may also be required. It is

thereore appropriate or anyone who anticipates oering expert testimony to keep a leidentiying those cases in which he or she has given testimony in the past.

Te questioning then usually proceeds to matters relating to the case. Te scope o the inquiry is ofen very broad—much broader than is generally allowed by the rules o evidence in eect at the time o trial. For example, in ederal civil actions, the issue isnot whether the matter being inquired about is relevant, but whether the matter underinquiry might reasonably be calculated to lead to admissible evidence at time o trial [16].In this context, it is proper or counsel to object to a question, the objection being notedor the record, but such objection does not relieve the deponent rom the responsibility o

answering it because there is no one present who can rule on the merits o the objection.Occasionally, a question may be so ar aeld or inappropriate that the retaining attorney will instruct the witness not to answer, but he or she may have to argue this position at alater time beore a judge.

Good practice dictates that a retained expert spend time preparing or deposition withthe same care that one would or an appearance at a trial, keeping in mind that the testi-mony to be given is being transcribed and can be introduced into evidence at trial in anattempt to discredit or impeach the witness i opposing counsel eels that a misstatementor incorrect or potentially conicting inormation has been given. For this reason, inad-

equate preparation and errors may come back to haunt the deponent at the time o trial,and any experienced attorney will want to avoid this eventuality. Te expert should listencareully to the questions put to him or her; i any are unclear, a request should be madethat they be read back, repeated, or rephrased. Te witness should not answer open-endedor vague questions or presume to understand the meaning o the question i he or she doesnot. Te expert should try not to volunteer inormation or anticipate the lines o question-ing. A deposition is not a test, and a witness wins no awards or demonstrating breadth o expertise or erudition. Te only obligation is to answer truthully the questions asked. I questions are asked or which the expert does not have an answer or or which he or she

cannot recall the answer, it is appropriate and necessary to so state. I questions relate toareas o expertise in which the expert does not consider himsel or hersel competent, theseshould be avoided and it should simply be stated that the matter is beyond the witness’sarea o proessional competence. Occasionally, the expert, during the course o the deposi-tion, will recall important details or additional inormation that should have been given inresponse to an earlier question. In this case it is appropriate to inorm counsel that he orshe wishes to amend an earlier answer and to do so. Remember that variances with latertestimony may be used to impeach the credibility o the witness at trial.

Although it is usually the opposing counsel who will ask questions o the witness,

occasionally retaining counsel may wish to query the expert in order to enter certain inor-mation into the record or make clear potentially troublesome or ambiguous points. I thereare several attorneys party to the action, all o them may wish to question the witness. Inany case, when the deposition is completed, the expert will normally be given the optiono reviewing the typed transcript o the deposition when it is available or to “waive signa-ture.” What this means is that the witness may choose to read his or her testimony and tomake nonsubstantive corrections, such as spelling, in the transcript or may choose to rely





on the expertise o the court reporter to have airly taken down the testimony. As a generalrule, it is good practice or the expert not to waive signature and to review the record beoresigning it, because many reporters have diculty in understanding and spelling medicalor technical terms and may simply have entered them phonetically in the record. Further-

more, i gross or troublesome errors have occurred, or an important word that changes themeaning o crucial testimony has been lef out or added (such as an is instead o isn’t ) as aresult o a stenographic error, retaining counsel can be warned promptly. Another beneto reviewing one’s own testimony is that it can provide valuable eedback on how one hasresponded to questions under pressure and can assist the expert in improving his or hertechnique or the uture.

WrittenInterrogatoriesandDeclarations

Another requently used discovery tool is the written interrogatory. Tese are writtenquestions that are served by one party on another in a lawsuit. Interrogatories are notdirected to the expert himsel or hersel but rather to retaining counsel, with the aim o discovering ahead o trial or deposition certain basic inormation about the witness. Underthe Federal Rules o Civil Procedure [17], a party seeking discovery o the other side’s testi-ying expert must rst serve interrogatories that may ask the ollowing: the identity o eachexpert counsel expects to call, the subject matter on which the expert is expected to testiy,and the substance o the acts and opinions to which the expert is expected to testiy and asummary o the grounds or each opinion. Deposition o a witness may not take place until

and unless there has been a response to these written interrogatories and the court allowsor depositions to take place. It is not uncommon or the court to deny additional discovery in the orm o deposition or to impose conditions, limit the scope o additional discovery,or assess ees and costs in connection with additional discovery. Te procedures regardingthis process vary considerably, but when this process directly aects the expert, he or shewill be inormed and prepared or this by his retaining attorney.

When the expert is asked to respond to specic interrogatories, they ofen includethe ollowing: areas o expertise (brain tumors, orensic pathology, degenerative diseases,wound ballistics, epilepsy, traumatology, behavioral illness, mental retardation, etc.), the

publications relevant to these or other areas the expert has authored, the experience theexpert has had in these or other areas, the number and nature o previous legal cases inwhich he or she was involved, and the number o hours devoted to the case in question.Te expert may be asked to provide a curriculum vitae and certain inormation about hisor her education, training, experience, licensure, board certication, appointments, mem-berships in proessional organizations, honors received, and lists o abstracts and publica-tions. For this reason, it is appropriate or the expert to prepare a complete curriculum vitaecontaining all these relevant acts, which can be reerred to i necessary. Te content o the curriculum vitae must be accurate and not embellished or nonactual. I untruths are

discovered, the witness may suer irreparable proessional damage and may be disquali-ed rom testiying. Such discoveries are permanent and not easily overcome. Tere havebeen instances in which an expert’s testimony has been stricken because o alsications ina curriculum vitae. It is possible that perjury charges might be brought i alsications aredeemed serious enough to have violated the oath given at the beginning o the testimony.

Occasionally, an expert will be asked to provide a declaration or adavit regardinghis or her opinions on a case. Tese latter documents are ofen required in post-judgment





appeals so that the court may assess whether some orm o relie rom a prior judgmentmight be warranted. Although essentially the same as a report, ofen a proscribed ormatis required that can be provided by retaining counsel.

WhatMustBeDoneinPreparationorTrial?

In preparing or trial, any expert witness should undertake to review again all inormationabout the case that is relevant to the expert’s testimony and opinion as well as whateverliterature review might be necessary. At this juncture this review should involve close con-sultation with the retaining attorney regarding what the discovery process has disclosed interms o additional evidence and opinions o other experts, probably in the orm o theirdeposition transcripts and his or her own. Te actual contours o a case seldom remainconstant, and beore the witness takes the stand, he or she should have a rm understand-

ing o just how the proposed testimony ts into the case and the other evidence.It ofen happens that a witness will want to use exhibits during his or her testimony.

Such exhibits should be reviewed beore use and may have to be disclosed to opposing coun-sel. rial exhibits may be characterized as real or demonstrative. Real evidence is denedas evidence having some historical connection with the case on trial, such as a medicalspecimen, microscopic slides, a bullet or other projectile recovered rom the victim, orphotographs o some aspect o the case. Demonstrative evidence, on the other hand, is evi-dence used to demonstrate or illustrate a witness’s testimony [19, 20]. Examples o this area brain model or anatomical diagrams or sketches that will acilitate the explanation o a

dicult point or provide background or testimony [14]. Experienced trial attorneys knowthe persuasive value o demonstrative evidence, and the testiying expert should not hesi-tate to suggest the use o it. o restate an old adage, a picture is worth a thousand words.Sometimes, opposing counsel will challenge the use o real or demonstrative evidence onthe grounds that either it is prejudicial (especially gruesome or gory photographs in color,or example) or it is not relevant or actual. One cannot predict i the judge will allow theuse o any given piece o evidence, demonstrative or real, and the expert should be pre-pared to go on without it i it is ruled inadmissible. echnical advancements now permitelegant graphic exhibits to be presented in the courtroom, many o which are equipped

with LCD image projectors, at-bed video cameras, and computers that can permit theuse o PowerPoint® presentations and other graphics resources. One must remember thatanimations and “cartoons,” although ofen graphic, may not represent the acts because o exaggeration or some other tampering with the data and may be misused.

HowIsaTrialConducted?

Te culmination o the judicial process is the trial. As previously mentioned, this is theoccasion when all the evidence is presented to the trier o act, judge or jury, who decides the

outcome. Evidence is normally presented at trial in specied stages by the parties involved.Te plainti or state (the party that has sought the action) has the burden o establishingthe acts (the burden o proo) that will entitle that party to get the relie sought and, thus,presents its evidence rst. In so doing, counsel will call on, in successive order, the wit-nesses who will present evidence to support his or her case or claims against the deendant.Such proo may consist o testimony by material witnesses or the purpose o authenticat-ing exhibits and physical evidence or entering into evidence items o personal knowledge




0 foec neuoology, secod Edo

about when certain things occurred, what was said or done, and the like. Plainti ’s experts

will be asked to present opinions on relevant issues. Afer the plainti rests, it is then the

deendant’s turn to call his or her witnesses and introduce his or her evidence, afer which

the deendant rests. At this juncture, the plainti may oer evidence in rebuttal, but only

in relation to material already introduced into the proceedings. No new evidence may beintroduced. Te deendant also has the option o oering rebuttal evidence under the same

restraints. In some jurisdictions and venues, the jury may submit written questions o a

witness to the judge, who may then read the questions to the expert or responses. By the

same token, some judges make a practice o also asking questions o the expert.

Following nal statements by the attorneys or both parties, the trier o act (judge or

jury) retires to deliberate and eventually renders a verdict. Te verdict is the nal judgment

on the case and must be abided by. Tere may be a series o appeals i one party or the other

eels that there are errors in the proceedings, but these appeals are conducted at a later timebeore an appellate court where no witnesses or new testimony is usually permitted. In

certain appeal proceedings, as mentioned above, declarations or adavits by experts may

be submitted to the court or consideration. Tese generally provide inormation that there

is new evidence relevant to the case or that evidence presented originally was in error or

omitted and should have been considered.

WhatWillIBeAskedtoDoWhenITestiy?

When a witness testies, it is under oath in a courtroom beore the trier o act (judge

alone, or judge and jury). Te party who calls the witness conducts what is known as the

direct examination. Tis takes the orm o a series o direct questions o the witness. Te

attorney will usually begin by asking questions that are designed to qualiy the witness as

an expert by means o establishing his or her proessional credentials, such as his or her

training, education, present employment, sta appointments, honors, and publications.

Te witness will generally be asked to dene what his or her specialty is and where and how

he or she practices that specialty. Te expert may be asked to dene the training necessary

to attain competence in the eld and what board certication means. Te questioning may

then move on to the substantive matters at hand. During this phase o the testimony, the

attorney guides the directions o the testimony by continuing to ask a series o questions

that must be nonleading, that is, questions that do not suggest an answer to the witness.

Te use o leading questions is described in Rule 611(c) o the Federal Rules o Evidence

[16] as ollows:

Leading questions should not be used on the direct examination o a witness except as may

be necessary to develop his testimony. Ordinarily leading questions should be permitted on

cross-examination. When a party calls a hosti le witness, an adverse party, or a witness iden-

tied with an adverse party, interrogation may be by leading questions, o control over a wit-

ness, and their use has generally been limited to cross- and re-cross-examinations. Although

impossible to promulgate hard and ast rules regarding what is a leading question and what

is not, it might be helpul to remember that questions preaced with one o the ollowing will

usually be non-leading: Who? What? When? Where? How? On the other hand, questions that

suggest the answer are usually deemed leading and will be objected to.





For the testiying expert, adequate preparation is the key to a successul direct exami-nation. Tis preparation may involve spending time with the retaining attorney reviewingquestions to be asked and the course o the expected examination, and even becomingamiliar with the attorney’s style by having him or her ask some typical questions and criti-

cize the answers. Some attorneys will want to write out their questions ahead o time andmay ask you to help them do so, so that the crucial inormation can be developed smoothly and completely. When in court and awaiting questioning, the conduct o the expert wit-ness is important. Te expert should take care to be punctual. Te witness should appearwell groomed and dressed in a manner that does not detract rom the substance o thetestimony and is consistent with a proessional mien. Te expert should bring only thosethings required or testimony, such as exhibits, evidence, and notes that may be used. Insome venues the kind a volume o notes and documents may be limited, but it is generally permitted that the expert be able to reer to notes to aid in remembrance o acts. Te wit-

ness must speak slowly, clearly, and orthrightly and maintain eye contact with counsel,the trial judge, and members o the jury. Te trial judge should be reerred to as “YourHonor.” Beore leaving the witness box or beore perorming any demonstration, permis-sion to do so must be obtained rom the judge. Te witness must ask permission i thereis an intention to approach the jury with a piece o evidence or a demonstration, and careshould be taken not to personally interact with any member o the jury verbally or physi-cally unless specic permission by the court has been given.

When responding to questions, the expert should always consider the meaning o thequestion careully beore answering. I the question is unclear or ambiguous, he or she

must ask or clarication. Generally concise, short answers should be given when possible,but lengthy answers are entirely appropriate when necessary in order to convey meaning.Inormation should not be volunteered, and questions should not be anticipated. Te wit-ness should not ponticate, preach, or lecture. o the extent possible, the expert shouldace the jury to answer questions, because it is the jury that the witness is there to assist. Inthe case o a bench trial, it is to the judge that answers are directed.

Juries are as diverse as humankind itsel and requently represent a wide range o cul-tural and educational backgrounds. Some will be attentive, ollowing every word o tes-timony, whereas others will appear bored or oblivious to the proceedings and may even

sleep. Most experts, such as neuropathologists with teaching experience, however, areadept at dealing with these diverse orms o behavior, because they occur in the classroomevery day. But the expert must remember that it is the judge who may admonish a sleeping juror, not the witness.

Because much o the evidence a medical expert is likely to present is complex andprobably inherently unknown to the jury, the expert must try to avoid the use o jargon asmuch as possible and explain the meaning o terms that might be unamiliar to the jury.Illustrative materials and exhibits are especially helpul in this regard, as are photographicslides. Te use o analogies can also be a powerul conveyer o meaning and is almost

always appreciated by the jury over the dry, technical presentations o a stuy expert.While a witness is being examined in court, it is not uncommon or counsel to make

objections. Objections can relate to any number o matters, such as the orm o a questionasked o the witness or admissibility o an exhibit. Whenever an objection is made, the trial judge is obliged to rule on the objection. He or she may agree with the legal basis or theobjection, sustain it, and instruct the jury to disregard the oending question or answeror may not allow some evidence or exhibit to be introduced. On the other hand, the judge





may not agree and may overrule the objection, thus allowing the expert to proceed. Some-times the judge may conduct a “side bar” conerence with counsel beore ruling, or it may be necessary to adjourn the trial or a time to the judge’s chambers, where the issue in ques-tion is settled with the court reporter present. At such times, i the argument is lengthy,

the witness and the jury are excused temporarily. Regardless o when, how, or by whomobjections are made, the expert should take cues rom the trial judge. Te witness shouldremain silent until the matter is resolved. I allowed to proceed, he or she should do so,but i ordered otherwise, he or she should cease answering in accordance with the ruling.Sometimes objections may seem trivial or arbitrary to the expert witness; nevertheless, thewitness should not interpose himsel or hersel into the issue and should await instructionsrom the judge on how to proceed.

At times opposing counsel may interrupt the proceedings to request a voir dire exami-nation o the expert. Tis usually involves exploration o the expert’s qualications regard-

ing a given issue that opposing counsel may be concerned about or some other matter thatdeals with admissibility o testimony. Such exercises generally occur early in the directexamination, and generally the jury is excluded rom the courtroom. Tere may be objec-tions over the qualication o the expert, which the judge will decide.

At the conclusion o direct examination, the opposing counsel has the opportunity to cross-examine the expert witness on the testimony and qualications. Whereas directexamination usually proceeds smoothly and in an orderly manner, cross-examination may not be as easy. Tat is not to say that one cannot prepare or cross-examination, becausethe witness may have seen opposing counsel in action at a discovery deposition and prob-

ably already knows the kinds o questions that will be asked and the areas o diculty orchallenge ahead. A sel-critical approach ollowing the deposition can prepare the witnessin this regard.

Te opposing counsel will certainly be thoroughly amiliar with the deposition in thecase and possibly other prior testimony on dierent cases, and he or she will hold theexpert to prior opinions and testimony in an eort to show inconsistency i he or she can.Tereore, this testimony must be reviewed careully by way o preparation. In addition,the cross-examining attorney should be expected to have reviewed any publications by thewitness (perhaps with the aid o his or her own experts) in search o possible contradictory

statements or opinions that can be used to undermine the witness’s credibility. With thisin mind, the expert should be amiliar with his or her own publications, especially withthose having some relevance to the issue at hand, and should be prepared to explain any dierences, apparent inconsistencies, or changes o opinion. Similarly, i an expert relieson papers and books written by others, he or she should be prepared to respond intelli-gently to questions about them. During cross-examination attorneys commonly attemptto impeach an expert by rst eliciting rom the witness an admission that a certain book,paper, or work is “authoritative” and then by reading a passage rom the authoritative book that either contradicts or is at variance with the expert’s prior testimony, casting doubt on

the opinion. Te expert must be prepared to explain this controversy. Tis can be done by pointing out that out o necessity any textbook is somewhat out o date owing to delays inwriting and publication and that the contents o any chapter or any paper may representthat author’s opinion and is not ironclad act. It is helpul i the expert himsel or hersel has authored articles, textbooks, or chapters and can explain that no one has exclusiverights to the truth and that, owing to scientic and medical advances, opinions and viewschange and are not always reected in an already published book.





Furthermore, the state o knowledge changes constantly, and yesterday’s “acts” may have been supplanted or ound wrong. Te expert should also beware o being drawn intoan examination o minute and highly technical points in obscure papers and placing him-sel or hersel in the position o being tested. An attorney may “bone up” on a specialized

area and attempt to discredit the expert by showing supposed mastery o a complex subject by exposing the expert’s apparent lack o knowledge. Tis tactic can usually be metby pointing out the volume o medical literature that already exists and the new materialthat appears each year and noting that no one can possibly memorize every bit o it, whichis what libraries and databases are or. I an article is proered, it is wise or the expert torequest to see the article and to take whatever time is necessary to amiliarize himsel orhersel with the article beore being drawn into answering specic questions.

During cross-examination the expert should not engage in guesswork or speculation.I he or she does not know something, or cannot remember, he or she should say so. By the

same token, the expert should not agree to a generalization or vague statement o “act” by counsel, or to an inexact, convoluted, or distorted restatement o the expert’s opinion, inthe interest o simplicity. Te expert should never be orced to answer yes or no to a ques-tion that does not deserve such an answer. It is popular misconception on the part o physi-cians that one can be orced into such an answer. Should such an occasion arise in whichan attorney attempts to badger an expert in this manner, the witness should state that heor she is unable to answer the question truthully as posed.

A common issue or physician witnesses in a trial is the question that is ofen put tothem about their certainty o some opinion or judgment as well as the issue o possible or

probable alternate opinions or outcomes. In the everyday practice o medicine, physiciansare accustomed to acknowledging that probabilities and possibilities exist in diagnosisand, hence, dierential diagnosis is commonly used as a conceptual device. But in ormallitigation an attorney must attempt to determine the certainty or condence the experthas in his or her opinion. Ofen an attempt is made to get the expert to give a percent-age o condence or likelihood o his or her opinion’s being correct. Most physicians arethoughtul and sel-critical individuals who might be tempted to admit reely to colleagueso being unsure to some degree, or to being allible, but such an exercise is not needed incourt. Depending upon the circumstances (civil or criminal proceedings), the degree o

assurance ofen can all within the “more likely than not” or “to a reasonable degree o medical certainty” characterization. When aced with this type o questioning, the expertmay simply repeat the opinion and state that it was arrived at afer careully consideringall the acts to a reasonable degree o medical and scientic certainty and that this is thewitness’s best judgment. In criminal cases, it is the jury, not the expert, who must deter-mine the degree o veracity and certainty o the purported acts, but the expert in suchcases has an added ethical and moral burden, because o the consequences to justice o hisor her testimony, that the opinion is sound and based upon robust science.

Cross-examination, although usually relating to the substance o the case and matters

covered under direct examination, may pertain to issues that are tangential. Not surpris-ingly, most experienced trial attorneys are reluctant to ght an expert on his or her owntur, even with the pretrial assistance o another expert. Te attorney cannot reasonably expect to acquire in a short time the knowledge and experience o the expert and may attempt to discredit the opposing expert on the basis o some nonsubstantive matter. Forexample, opposing counsel may directly question or insinuate that the witness’s education,training, or experience is suspect or somehow insucient to justiy the opinions given. He





or she may impugn the motives o the expert or testiying and may harp on the expert’see. It may be suggested that i the expert has testied beore, his or her opinions are “orsale.” An appropriate response to such badgering is not to appear deensive or to overex-plain or justiy one’s ee but to assert quite clearly that, o course, one is being paid to be

present and or the time taken away rom one’s practice but that one’s ee is not contingenton the outcome o the case and that, under no circumstances, is the opinion or sale. It isnot uncommon or an opposing attorney to ask how much time the expert has spent onthe case to date and what his or her bill is or will be, or i the past bills submitted have beenpaid. Te expert may be asked how much incomehe or she has realized as a result o experttestimony in the past year and what percentage o his or her income is derived rom thissource. Tese are all proper questions, and one should be prepared to answer them withoutrancor or deensiveness.

At the conclusion o the cross-examination, the retaining attorney has the option o

posing questions on redirect. Tese questions are designed to clariy any unresolved orunclear matters already testied to or entered in evidence or to counter points made by opposing counsel. No new evidence may be introduced at this time. At the conclusiono redirect, the opposing counsel has another opportunity at re-cross-examination orthe same reasons. Occasionally, the judge may allow several interchanges o redirect andrecross, but this is usually limited. In some jurisdictions and in military trials, memberso the jury may submit questions to the judge that can be asked o the witness, and it isnot uncommon or the judge to ask questions o the witness. Tese should be answeredlike any other question—truthully and completely. Upon conclusion o the testimony, the

witness is excused and may leave the stand. Te expert will generally have little or noth-ing lef to do with the case, unless the attorney wishes to make use o his or her services inother aspects o the case or in the unlikely instance in which a witness will be recalled orbe permitted to hear the testimony o other witnesses. Depending upon the case and spe-cial local issues, the expert may be barred rom discussing the case with others, includingthe media, or a nite period o time. Generally, however, once testimony is nished theexpert’s involvement is concluded.

ImplicationsortheExpertoHavingGivenTestimony

Because legal trials are open to the public and are thus public records, the expert’s testi-mony may be reported in the media and is certainly available to other interested parties orlater examination in the orm o the written transcript or recordings o the proceedings.Te expert may be solicited or comments or urther inormation about his or her testi-mony or other aspects o the case that has been tried. It would be entirely inappropriate orany comments to be made beore a verdict or other disposition o the case has taken place,and is a matter o personal judgment on what comments would be appropriate, i any, at

the conclusion o the proceedings. Te expert witness is generally not under any obligationto make comments regarding the testimony and may be well advised to rerain rom any public pronouncements without rst discussing the matter with the retaining attorney.

As a part o the public nature o a legal proceeding, excerpts rom a given case, a digesto the issues involved, and a listing o the attorneys and expert witnesses may appear in anumber o private legal publications at a later date or the benet o other attorneys withsimilar cases. Tese listings are widely available, and it is possible or anyone to consult





indexes o these publications to determine i an expert has testied beore, when, where,and what he or she said. A ull transcript o testimony can also be obtained or the cost o transcription or copying. Tis means that in any uture case, opposing counsel can haveaccess to any inormation given in a prior trial i he or she wishes to take the time and

eort to seek it out. Tis inormation may be valuable in “prereading” a potential expertwitness and planning strategy. When one participates in legal hearings and trials, onethereore has to assume that opposing counsel has complete inormation about a witness’sprior participation in any public legal matter and, rom review o this material, whetherthat witness was eective or ineective. It is thereore in the interest o any expert wit-ness to conduct himsel or hersel in a proessional manner at all times in all public legalproceedings, because somewhere there will be a written record o everything he or she hassaid. I there are occasions in which the expert’s testimony has been impeached becauseo inconsistency o opinion between that which appeared in an article or book and oraltestimony, he or she must be prepared to be questioned about this in uture proceedings inwhich the same issues occur.

As a result o having testied, as mentioned above, the neuropathologist expert may be contacted by other attorneys or his or her opinion on their cases, especially i his or hertestimony was memorable in some respect. On these occasions the neuropathologist shouldexercise good judgment in determining whether he or she wishes to become involved in thematter, as discussed above. I the neuropathologist has been very active in the legal arenaand spends a signicant portion o his or her proessional time in legal activities, there is the

risk that he or she will become characterized as a proessional witness whose opinions areor sale to the highest bidder or that the expert is a deense or prosecution witness. Regretta-bly, sometimes this is the case, but this cannot and should not be assumed to be true. It may happen that an expert has acquired special expertise that may lead to being called again andagain in a certain type o case, or example, automobile crash analysts who are called repeat-edly to testiy on their narrow eld o expertise all over the country. One might answer thatbecause the issues in the case in question are so dicult technically, and because there areso ew individuals qualied in the area, it stands to reason that an expert on the issue inquestion will be asked to testiy whenever there is such a case. o ail to do so would deprive

the triers o act o the inormation required to do proper justice.By participating in legal actions, the neuropathologist may attract attention in his or

her medical community. Tis attention may be negative, but most requently it is surpris-ingly positive. In the latter circumstance, it is not uncommon to nd other physiciansseeking inormation about the in-court experience and any reections one might have onthe process. Advice is ofen sought as well. Tis and even the negative reactions that some-times occur are outgrowths o the relative ignorance o much o the medical community about legal matters. It is indeed regrettable that there is such a lack o knowledge, but it isonly through more enlightened participation o physicians with the legal system that both

lawyers and physicians may come to work together out o mutual respect and more eec-tively interact or the benet o society.

Reerences

1. Spitz WU, Spitz DJ, eds. Spitz and Fisher’s medicolegal investigation o death. Guidelines or the application o pathology to crime investigation. Springeld, IL: Charles C. Tomas, 2006.





2. DiMaio VJ, DiMaio D. Forensic pathology. Boca Raton, FL: CRC Press, 2001.3. Camps FE, Robinson AE, Lucas BGB, eds. Gradwohl’s legal medicine. Bristol, UK: A. John

Wright, 1976.4. Knight B. Forensic pathology. London: Arnold, 1996.

5. American Board o Pathology. http://www.abpath.org/. ampa, FL: 2007.6. Oce o the Medical Examiner, Cook County, IL. Annual report, 1977–1979. Author, 1979.7. Moenssens AA, Moses RE, Inbau, FE. Scientifc evidence in criminal cases. Mineola, NY: Te

Foundation Press, 1973.8. Faigman DL, Kaye DH, Saks MJ, Sanders J. Modern scientifc evidence: Te law and science o

expert testimony. Eagan, MN: Tomson West, 2005.9. Broun KS, Dix GE, Imwinkelried EJ, Kaye DH, Mosteller RP, eds. McCormick on evidence.

Eagan, MN: Tomson West, 2006.10. Moritz AR. Classical mistakes in orensic pathology: Alan R. Moritz ( American Journal o

Clinical Pathology, 1956). Am J Foren Med Pathol 1981;2:299–308.

11. Fatteh A. Handbook o orensic pathology. Philadelphia: Lippincott, 1973.12. Kirkpatrick JB. Forensic considerations in examining the brain. Semin Diagn Pathol 1984;1:98–113.

13. Horsley JE, Carlova J. estiying in court . Oradell, NJ: Medical Economics Books, 1983.14. Quimby CW Jr. General considerations o medical testimony. In James AE Jr., ed., Legal

medicine with special reerence o diagnostic imaging . Baltimore: Urban and Schwarzenberg,1980, pp. 49–61.

15. Illinois revised statutes. 1985.16. Rothstein PF. Federal rules o evidence. Eagan, MN: Tomson West, 2002.17. Federal civil judicial procedure and rules. Eagan, MN: Tomson West, 2007.

18. Best A, ed. Wigmore on evidence. New York: Aspen, 2007.19. Maher P. Demonstrative evidence or complex litigation. A practical guide. ucson, AZ:

Lawyer’s and Judges Publishing, 2005.20. Rychiak RJ. Real and demonstrative evidence—Applications and theory. Charlottesville, VA:

Michie, 1995.

http://www.abpath.org/



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1 Pathology and Neuropathology