Position Paper Forensic Pathology

Since 2014 forensic pathologists can be registered as experts in the Netherlands Register of Court Experts (NRGD). The experts registered in the NRGD have been assessed thoroughly to determine if their expertise is sufficient to testify in court. The standards that are required have been written down in the Standards of Forensic Pathology of the NRGD.

During the NRGD assessor meeting[1] on the 27th of March 2019 a number of topics from the Standards were discussed concerning the manner of reporting in the Netherlands and the assessment of the (Dutch) forensic pathology applicants. Foremost, there was a feeling that the assessors in part assess the system of the pathology department instead of the individual applicant. This paper summarizes the opinions of the forensic pathology assessors and gives a guideline on a future direction.

Serious questions were raised among the assessors concerning the fact that applicants do not meet the NRDG criteria due to differences between the (international) methodologies used by the assessors and those used in the Netherlands so far. As a consequence the applicant may not be accepted into the register and/or the applicant may not report to the court of law according to the NRGD standards. Some of the limitations in the way the forensic pathologists report could be mitigated by the Dutch court system and in particular the absence of juries. A difficulty may also lie in how pathologists report given the reporting history and framework. Unless the casework approach and report style changes, issues in future assessments are almost inevitable.

There is a general agreement that the practice of Forensic Pathology in the Netherlands is of a high standard and that the standards set out by the NRGD are appropriate and should not be changed. However, an adjustment can be made by the pathologists to a more international accepted modus operandi surpassing cultural differences that have originated in the Dutch forensic pathology reporting, without conceding the quality of their work.

Within this document we will clarify which aspects could be adjusted in the working procedures. Consequently, this document will serve as a guidance for the forensic pathologists.

This will focus on the following topics, based on the experiences of the assessors of the previous years.

• Visiting the scene of crime and information available before the autopsy
• Requirements in reporting

Visiting the scene of crime and information available before the autopsy

The NRGD standards state that “The task of the forensic pathologist is to establish or to help establish the manner of death.” The assessors were in agreement that visiting particular crime scenes can be essential for a proper diagnose of the manner of death. This is supported by the protocols of the NFI for forensic pathologists which state that determining the manner of death’ is a task to be performed by the forensic pathologist[2].

Forensic pathologists in the UK visit the scene of the death less than they used to partly because of digital photography but it is still on occasion essential and should be part of forensic pathology culture.

Currently, the forensic pathologist is briefed in a general way before the autopsy. However, the information they obtain can be very limited. Ideally in the appropriate case the forensic pathologist should attend the scene and advise on the management of the body. If visiting the scene doesn’t occur then the forensic pathologist must insist on being briefed in more detail about the findings by the professional responsible for the scene examination/interpretation and have early access to the photographs from the scene, e.g. by the use of 3D crime scene reconstruction. A summary of the key observations should be included in the final forensic pathology report and the post-mortem findings interpreted in context with the scene evidence in the discussion section. The relevant emergency medical and ambulance staff interventions and findings must be sought actively, irrespective of any potential legal constraints.

Observations concerning, for example, the airway being obstructed by blood on their arrival to treat a victim of stamping, is key evidence in explaining a rapid death when the brain injury may not be that apparent. The past medical history, for example of epileptic or alcohol associated seizures is essential to advise as to whether or not, a seizure related death, unrelated to the assault, is a plausible alternative cause of death. A sentence in the report to the effect that the case cannot be concluded without such information may prompt the police to deliver it or the prosecutor to facilitate the police response.

As much relevant information as possible should be available before the autopsy by way of medical records, CCTV etc. For example, it can be difficult performing an autopsy on a stabbing victim who has been treated surgically without possessing such information. The international best practice approach is for the forensic pathologist to be aware of all relevant information about a death before commencing the autopsy. The concept of not providing this so as to not bias the investigation is flawed.

Visiting the crime scene and obtaining information are not activities the forensic pathologists can change themselves. Namely, it is the police and the public prosecutor (Openbaar Ministerie) who have to provide this information and extend a formal invitation to the forensic pathologist to visit the scene. Visiting the crime scene is an activity that has been recorded in the Standards of the NRGD and therefore NRGD registered forensic pathologists can be invited directly by the public prosecutor and do not require an official mandate of a judge.

Requirements in reporting

During the assessments of the previous years the assessors noticed that there is a clear difference between the style of pathology reporting in the Netherlands and the style used in other countries. These focus on the following aspects:

• Reporting all relevant information
• Reporting opinion vs fact
• Reporting propositions on activity level

Reporting all relevant information
Currently, the Dutch forensic pathologists struggle with what they can and can’t report given the questions asked by the judges. Historically the Dutch forensic pathologist reports mainly factual findings of the autopsy, because they are concerned that they might not be considered objective when they report beyond the factual. The Dutch forensic pathologists are of the opinion that if the court requires information concerning different scenario’s, then they should send additional questions. However, the court does not always know which questions to ask unless they are informed about certain findings. Consequently, details which could have a significant contribution to the explanation of the events that happened leading to the death of a victim could be missed. Forensic pathologists need to report more about forensic pathology and not just pathology. To give a couple of examples, a general explanation of the time of death or manner of death should be added to the report if such information is available, e.g., “It is most likely that the death occurred between … and … months posterior to finding the remains.”. Or if a shooting incident took place it should be noted if the shooting distance was within close proximity when the autopsy results clearly show it. Quoting an assessor “If you see it, you say it.”

Reporting opinion vs fact
As explained above it is essential that the forensic pathologist interprets the post-mortem findings and offers an opinion, even if necessarily guarded, as to the likely causation. Of course further information may subsequently be made available which might cause the forensic pathologist to amend that interpretation. Leaving the court in the dark as to what your interpretation is until asked during oral evidence (which may not take place), deprives the judge of a clear understanding of what the forensic pathology can and can’t assist with. For example, the presence or absence of livor mortis might indicate movement of the body post-mortem which could be useful for reconstructing the events of the crime.

Reporting propositions on activity level
Based on the current methodologies, manner of death statements should be based on scientific reasoning, which is often on the activity level, requiring a set of specific mutually exclusive hypotheses/propositions. Current reports are sometimes too neutral/non informative, while the judges want to hear more based on existing factual information; assessor judges and prosecutors share this view. However, the forensic pathologist should not address propositions concerning the intent, guilt or innocence of an accused person[3].

The assessors support that for reporting on activity level often more information is required. Accordingly, we once more see the necessity of additional information.

There is consensus that the wording should be accurate e.g. “The autopsy findings are much more likely when the victim was shot within close range (within… meters) than if the victim was shot from further away (further than … meters)”. To report on activity level, the experts have to use a verbal likelihood scale because in general, a numerical likelihood scale cannot be assigned. This restriction should be emphasized in the reports.

Additional comments
There seems to be some issues with reporting ballistic cases. Some forensic pathologists maintain that they should not offer an opinion about direction of track, discharge distance and whether a defect is likely to be an entry wound or an exit wound. Of course it can be difficult but terms such as ‘the features favor or strongly favor, an entry wound’ are helpful but capture the appropriate degree of certainty or doubt. If such matters are also formally addressed by a ballistic scientist or gunshot residue scientist (with an examination of the clothing) then their findings should be summarized in the forensic pathology report, even if briefly. If not available then a comment to the effect that ‘the pathological findings must be considered not in isolation but in context with the ballistics findings (when available)’ would be useful. Cross correlation with the scene and witness evidence is also best practice.

Outlook

The above mentioned arguments show that there is a discrepancy between the reports from the forensic pathologist and the NRGD standards. Nevertheless, the NRGD standards are sufficient as to the reporting aspects. There is a consensus that the NRGD should not change the criteria but that the pathologists should move towards the criteria. The Dutch forensic pathologist needs to adapt their manner of reporting more to the standards of the NRGD. Reporting on the manner of death should be the norm and not the exception, e.g., in case a prosecutor specifically asks about it. The NRGD assessors support the Dutch forensic pathologists in their demand for information prior to the autopsy, as this is fundamental for informing the court. Furthermore, the forensic pathologists wish to visit the crime scene more often. However, this is not a task implemented in the workflow easily as it requires both the police and prosecutors to actively invite the pathologists to the crime scene. One of the goals of this position paper is also to increase the awareness of police and prosecutors.

_{1. Attendees: W. van den Berg, H. Bratzke, N. Cooper, P. Johnson, B. Kubat, P. Poppe, J. Sperhake, W. van de Voorde, R. van Vuure.}

_{2. (Dutch) Het nader inzicht verschaffen in de wijze waarop de bevindingen (zoals letsels) kunnen zijn opgeleverd (‘manner of death’), door toetsing van de tactische bevindingen van het onderzoeksteam en de sectiebevindingen aan een bepaalde situatie (reconstructies) of op grond van literatuuronderbouwing.}

_{3. Adopted from the ISO 21043 norm, part 4: Interpretation.}