OPTIONAL: Ending Manner-of-Death Testimony and Other Opinion Determinations of Crime

Abstract: Medical examiners (MEs) and coroners historically have testified in U.S. courts to opinions on both cause and manner of death. Cause of death refers to the medical, physical, or toxicological conditions that led immediately to death: heart attack, stroke, blunt force trauma, gunshot, and so on. Cause of death usually is within a pathologist's expertise and not within lay experience. But manner of death is a determination that goes beyond cause to classify the events that produced death as homicide, suicide, accident, natural, or undetermined. Manner of death testimony, then, implicitly but invariably opines on mental elements of an offense, and often on all elements. This article examines the statutory requirement that MEs and coroners determine both cause and manner of death for administrative, recordkeeping, and public health purposes. It then turns to the very different purposes of the judicial process and to the mismatch of the manner determination with the proper roles of experts and factfinders at trials. It takes a fresh look at (in)admissibility of manner-of-death opinions in view of that mismatch. The article considers the rules of evidence, the claims of forensic pathologists themselves about the nature of manner-of-death opinions, and the information that physicians rely upon when determining manner of death (and sometimes even cause of death). It demonstrates that manner-of-death opinion testimony, when properly understood, should be inadmissible in any case, while cause-of-death opinion evidence generally, but not always, remains admissible. On the same analysis, existing rules of evidence and trial norms also should lead to the exclusion of medical opinions that address the mental elements and etiology of any alleged crime, most notably child abuse allegations like Shaken Baby Syndrome or Abusive Head Trauma.