Forensic Death Investigation Symposium: Navigating Legal and Ethical Issues in Death Investigation
Ronald Reinstein, retired judge with the Superior Court of Arizona and judicial consultant for the Arizona Supreme Court,
explained that his group opened with a discussion of the Health Insurance Portability and Accountability Act (HIPAA) and organ
donation. Group members asked, Is the autopsy report and related information a public record? They discussed logistical problems,
such as obtaining out-of-state medical records, Department of Veterans Affairs (VA) medical records, psychiatric records and
chemical dependency records. Some participants suggested revising HIPAA to include the release of medical records, but others
felt that this might cause additional problems. There was a clear consensus on the need for better education and easier access
to protected information.
The group said that all decisions regarding organ procurement should be in the hands of the medical examiner. They noted,
however, that there is often tension with organ procurement organizations, particularly in child fatality cases or when an
investigation is still pending.
The group then discussed ethical, liability and legal issues. Participants discussed what is discoverable under Brady v. Maryland. They asked: Should conversations between medical examiners and their staff — and any disagreements over the manner of death
— be documented? Some members said that this could have a chilling effect on the field. Others noted that there are no standards
for what must be provided to the defense. Participants agreed that it should come down to the materiality of the evidence
and relevance to the case.
The group turned to testimonial issues with regard to Melendez-Diaz v. Massachusetts. What happens when the forensic pathologist who worked on a case has left the office? Should someone else testify? Participants
agreed that until the U.S. Supreme Court takes up the issue, substitution will continue to be decided state by state.
Participants also discussed the lack of training in courtroom presentation. Medical examiners and coroners should not use
medical and legal jargon because jury members must be able to understand what they are saying in order to make a fair decision.
Group members added that interviews should be more accommodating to medical examiners and coroners.
Some of the group's recommendations included:
- Developing a working group comprised of state and local practitioners and representatives from the Department of Veterans
Affairs, the Department of Health and Human Services, organ procurement organizations, and law enforcement.
- Creating guidelines, best practices and model legislation for the release of records.
- Developing a model discovery packet that also addresses preservation issues.
- Offering medical examiners and coroners training with prosecutors and the defense.
- Promoting the use of video testimony.
Date Created: June 15, 2011