[TYPE THE COMPANY NAME]

MEDICAL EVIDENCE

Table of Contents

I. II. III. IV. V. VI.

Introduction Objectives Medical Evidence and its Types Preservation of Evidence and its Methods Weight and Sufficiency of Medical Evidence Others

I.

INTRODUCTION Medicine, like law, is a pragmatic, probabilistic activity. Both require that decisions be made on the basis of available evidence, within a limited time. In contrast to law, medicine, particularly evidence-based medicine as it is currently practiced, aspires to a scientific standard of proof; one that is more certain than the standards of proof courts apply in civil and criminal proceedings. But medicine, as Dr. William Osler put it, is an art of probabilities,. or at best, a .science of uncertainty.. One can better practice medicine by using other evidentiary standards in addition to the .scientific..To employ only the scientific standard of proof is inappropriate, if not impossible; furthermore, as this review will show, its application in medicine is fraught with bias. Evidence is information. It supports or undermines a proposition, whether a hypothesis in science, a diagnosis in medicine, or a fact or point in question in a legal investigation. In medicine, physicians marshal evidence to make decisions on how to best prevent, diagnose, and treat disease, and improve health. In law, courts decide the facts and render justice. Judges and juries assess evidence to establish liability, to settle custody and medical issues, and to determine a defendants guilt or innocence.
1

With increasing numbers of medical articles published yearly, it is not usual for an ordinary person to hear Medical Evidence as a tool in litigation as an admissible evidence. But, we need to have some sort of structure within which we can frame - its current importance, its applicability to our actual practice, its reliability, and its likely degree of permanence. However, when we consider the broad range of possible sources of medical knowledge. Nonetheless, we, patients require our doctors to exercise judgment about best estimates of prognosis, best procedures for diagnosis, and, as surgeons, especially the best measures of active treatment. This report attempts to outline the aspects of Medical

Evidence as it is applied into by courts nowadays.

On Evidence, Medical and Legal by Donald W. Miller, Jr., M.D. and Clifford G. Miller, Esq.

II.

SIGNIFICANCE

There is an aphorism which states that people follow Medicine and Law follows people. The stride of Law has a slower pace than that of Medicine. Because of the advancement of Medicine, crimes which would have been consummated in the past, can now become frustrated. In criminal acts which would formerly have resulted in deaths, the victims may, with the application of modern medical management procedures, be able to live. Physical injuries can now be classified into the lesser serious type on account of modern medicines. The moment of death which was considered an uncertain future event can now be saved by a life saving apparatus.

It is significant that the Medicine and Law Practitioners complement each other for the best interest of their patients and clients. Unfortunately, the facts are not always so clear cut. In many cases, the experts must weight the potential positive and negative consequences of a medical intervention. That is the case with the mammography recommendations.

III.

MEDICAL EVIDENCE and TYPES Evidence is the means sanctioned by the rules of court of ascertaining in a judicial proceeding the truth respecting a matter of fact. It is the species of proof, or probative matter, legally presented at the trial of an issue by the acts of the parties and through the medium of witnesses, records, documents, concrete objects, etc., for the purpose of including belief in the minds of the court as to their contention. If the means employed to prove a fact is medical in nature then it becomes a Medical Evidence. The rules of evidence shall be the same in all courts and in all trials and hearings, except as otherwise provided by law or these rules. Evidence is admissible when it is relevant to
4 3 2

2 3

Sec. 1, Rule 128, Rules of Court th Blacks Law Dictionary, 4 Edition 4 Sec. 2, Rule 128, Rules of Court

the issue and is not excluded by the law of these rules.

Evidence must have such a

relation to the fact in issue as to induce belief in its existence or non-existence. Evidence on collateral matters shall not be allowed, except when it tends in any reasonable degree to establish the probability or improbability of the fact in issue. (Collateral Matters) KINDS or TYPES a. AUTOPTIC OR REAL addressed to the senses of the Court. It is not limited to that which is known through the sense of vision but is extended to what the sense of hearing, taste, smell and touch is perceived. It is of judicial notice the judge is supposed to know Example :Do you need to prove to the judge that the ball is round? A square has 4 sides? Limitations: Indecency and Impropriety. (Example: exposure of genitalia of an alleged sexual offense victim) Repulsive Objects and those Offensive to Sensibilities (Example: foul smelling objects, persons with highly infectious and communicable diseases, objects that pose potential danger to the life/health of the judge) May still be presented if necessary for adjucation of the case depending on the sound discretion of the court.
6

b. TESTIMONIAL doctor as a witness

a physician who testifies in court on matters he perceived from his patient in the course of physician-patient relationship in is considered as an ordinary witness. a physician on account of his training and experience can give his opinion on a set of medical facts. He can deduce or infer something, determine the cause of death, or render opinion pertinent to the issue and medical in nature.
5 6

Sec. 3, Rule 128, Rules of Court Sec. 4, Rule 128, Rules of Court

c. EXPERIMENTAL if allowed by the Court to confirm or corroborate

have an experiment, please hold this ballpen and lets see if it will explode in your hands. Example: Show how long a person can survive after administration of lethal dose of poison by administration of the said poison to experimental animals w/in the view of the court

d. DOCUMENTARY writings/photographs . Recorded by letters, figures or marks. Applies to writings, to words printed, lithographed or photographed; to seals, plates or stones on which inscriptions are cut or engraved; to photographs and pictures; to maps or plans MEDICAL CERTIFICATES OR REPORT ON - Medical/Physical exam - Necropsy/Autopsy - Labs - Exhumation - Birth/death MEDICAL EXPERT OPINION DEPOSITION - if the ONLY witness who could testify is migrating to another country next month or has terminal CA who will die in 3 months, he/she will produce a testimony under oath, just like an affidavit. Testimony is perpetuated.

e. PHYSICAL articles and materials found in connection with the investigation and which aids in establishing the identity of the perpetrator or the circumstances under which the crime was committed, or in general assist in the prosecution of a criminal.

CRIMINALISTICS Identification, collection, preservation and mode of presentation of the physical evidence, application of sciences in crime detection and investigation.

Types of Physical Evidences:

1. CORPUS DELICTI objects/substances which may be part of the body of the crime. - Smoking gun - Body of the victim of the murdered - Prohibited drugs recovered from a person - Knife with blood stains or fingerprints of the suspect - Stolen motor vehicle identified by plate number and by body or engine serial numbers.

2. ASSOCIATIVE evidence that may link suspect to the crime. An alibi at this point may be considered to be the weakest defense.

- YOUR SCHOOL ID/nameplate beside a dead body :o associated with the crime, you become a suspect

3. TRACING EVIDENCE evidence that may assist investigator in locating the suspect. The ELECTRONIC EVIDENCE LAW makes text messages and e-mails now admissible to court as evidence. - Traces of blood, mobile phone tracker

IV. PRESERVATION OF EVIDENCE METHODS OF PRESERVING EVIDENCES: PHOTOGRAPHS, ADIO AND/OR VIDEO TAPE, MICRO-FILM, PHOTOSTAT, XEROX, VOICE TRACING, ETC. SKETCHING rough drawing of the scene or subject ROUGH made at the crime scene or during examination of living or dead body. On the latter, an anatomic figure of the front, back and side part of the body must be made and the bodily lesions indicated. FINISHED sketch prepared from the rough sketch for court presentation

DESCRIPTION putting into words the person or thing to be preserved

SKIN LESION PENETRATING WOUND (punctured, stab, or gunshot) HYMENAL LACERATION PERSON

MANIKIN METHOD Miniature model of a scene or human body indicating marks of various aspects of the things to be preserved. PRESERVATION IN THE MIND OF THE WITNESS A person who perceives something relevant for proper adjudication of a case may be a witness in court if he has the power to transmit to others what he perceived. SPECIAL METHODS It is a special way of treating certain type of evidence may be necessary. Preservation may be essential from the time it is recovered to make the condition unchanged up to the period it reaches the criminal laboratory for appropriate examination.

KINDS OF EVIDENCE NECESSARY FOR CONVICTION DIRECT provides the fact in dispute without the aid of any inference or presumption. The evidence that can stand on its own. Example: Eye witness, DNA Vizconde massacre: Eye witness Jessica Alfaro OJ Simpson Case: DNA OJ was acquitted in the criminal case, but lost the civil case: OJ cannot be tried again violation of Double Jeopardy

CIRCUMSTANTIAL proof of facts from which, taken either singly or collectively, the existence of a particular fact in dispute may be inferred as a necessary or probable consequence. Evidence that cannot stand on its own. Example: Blood stained jacket Circumstantial evidence, Vizconde massacre: blood stained mats, carpets OJ Simpson Case: sheepskin gloves

V.

WEIGHT, SUFFICIENCY AND APPRECIATION OF EVIDENCE CIVIL CASE preponderance of evidence. The party having the burden of proof must establish his case by a preponderance of evidence. Rule 133, Rules of Court: Section 1 - Preponderance of evidence, how determined - In civil cases, the ff. factors may be considered: a. All the facts and circumstances of the case b. The witnesses manner of testifying, their intelligence, means and opportunities of knowing the facts to w/c they testify. c. Nature of the facts to w/c the witness testify

d. The probability and improbability of the witnesses testimony

e. The interest or want of interest of the witnesses. f. Credibility of the witness so far as the same may legitimately appear upon the trial g. Number of witnesses presented, although preponderance is not necessarily w/ the greatest number.

CRIMINAL CASES Proof beyond Reasonable Doubt The defendant is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a degree of proof as, excluding possibility of error, produces absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind. It is presumed that a person is innocent of a crime until the contrary is proven beyond reasonable doubt. The doubt, the benefit of which an accused is entitled in a criminal case, is a reasonable doubt, and not a whimsical or fanciful doubt, based on imagined and wholly improbable possibilities and unsupported by evidence.

Rule 133, Rules of Court:

Section 2- Proof beyond reasonable doubt- In criminal case, the defendant is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt. It is presumed that a person is innocent of a crime until the contrary is proven beyond reasonable doubt.

ADMINISTRATIVE CASES substantial evidence

VI.

OTHERS DECEPTION AND DETECTION Knowledge of truth is important in the administration of justice, lies solely in the ability to evaluate the statement given by the suspect or witness.

Methods of deception detection: 1. Devices which record the psycho-physiological response: a) Use of a polygraph or lie detector machine b) Word association test c) Psychological stress evaluator

2. Use of drugs that try to inhibit the inhibitor a) Administration of the truth serum b) Narcoanalysis or Narcosynthesis c) Intoxication

3. Hypnotism 4. By observation 5. Scientific interrogation 6. Confession

I.

RECORDING OF PSYCHO-PHYSIOLOGICAL RESPONSE Nervous control CNS/ANS Sym/ParaS

Sympathetic influenced by physical and emotional stimuli, effects Parasympathetic works to restore things

A. Use of a Lie Detector or Polygraph

= The fear of the subject when not telling the truth activates the symp. = To a series of automatic and involuntary physiological changes which are recorded by the instrument. = Use of control questions > Most reliable & effective questioning technique. = Supplemetary tests: a. Peak of tension test - peak of tension on relevant questions b. Guilt complex test - does not response to added relevant quest. c. Silent answer test - subject verbal response creates distortion in

the tracing or clearing of the throat.

Reason for admissibility to the court of the result of Polygraph exam : 1. Have not received the degree of standardization of acceptance. 2. Trier of fact is apt to give almost conclusive weight to the experts opinion 3. No way to assure the a qualified examiner administered the test. 4. May waive right against self-incrimination. 5. It has many errors.

Factors responsible to 25% errors: 1. Nervousness experienced by a subject who is telling the truth - apprehension by the fact that he is a suspect. - over-anxiety to cooperate 2. Physiological abnormalities > BP inc. or dec., Cardiac prob. 3. Mental abnormalities 4. Unreponsiveness in a guilty subject no fear of detection 5. Attempt to beat the machine Can a person be compelled? No, use of intelligence and other faculties. B. Word association test: -Time interval between the words uttered by the examiner and the answer of

the subject is recorded. C. Psychological Stress Evaluator - when a person is under stress/lying, the microtremor in the voice utterance is moderately or completely suppressed. - degree of suppression varies inversely to degree of psychological stress .

II.

USE OF DRUGS THAT INHIBIT THE INHIBITOR - Not admissible in court A. Administration of truth serum - Hyocine hydrobromide given hypodermically until state of delirium which the subject feels a compulsion to answer the question truthfully. B. Narcoanalysis or Narcosynthesis - Sodium amytal or sodium penthotal C. Intoxication with alcohol - In wine there is truth

III.

HYPNOSIS - alteration of consciousness, not all subjects can be hypnotized

IV.

OBSERVATION Physiological and psychological signs and symptoms of guilt: a) Sweating, color change b) Dryness of the mouth c) Excessive activity of adams apple d) Fidgetting e) Peculiar feeling inside f) Swearing, spotless past record

g) Inability to look at the investigator

V.

INTERROGATION - emotional appeal, mutt and jeff technique

VI.

CONFESSION - expressed acknowledgement of his guilt.

TOKYO DECLARATION - contains guidelines to be observed by physician concerning torture, inhuman and degrading punishment.

MEDICO-LEGAL ASPECTS OF IDENTIFICATION - determination of the individuality of a person Importance of identifying a person: 1. In the prosecution of a crime, the identity of the offender and victim. 2. Settlement of estates, retirement, insurance 3. Resolves anxiety of nest of kin. 4. In some transactions sales, release of dead body

Rules in personal identification: 1. Law of multiplicity of evidence in identification greater number of similarities 2. Value of different points of identification fingerprints , moles Visual recognition of relatives lesser value than fingerprints/dental 3.The longer interval between death the more experts are needed in establishing the identity. 4.The team to act in shortest time because it is perishable. 5. No rigid rule in the procedure of identification of the person. Methods of identification: 1. By comparison Id found in the crime scene compared with the file.

2. By exclusion

IDENTIFICATION OF PERSONS A. Ordinary methods of identification

1. Characteristics which may easily be changed: a) growth of hair, beard b) clothing c) frequent place of visit d) grade of profession e) body ornamentations

2. Characteristics that may not be easily be changed: a) mental memory b) speech c) gait d) mannerism e) handedness-left /right f) hands and feet g) complexion h) changes in the eyes i) facies j) degree of nutrition

Points of identification applicable to both living and dead before onset of Decomposition: 1. Occupational marks painters have stains 2. Race: Malay:brown, flat nose round face, Round head, Wearing apparel 3. Stature: Tips of middle fingers of both hands extended laterally 4. Tatoo marks 5. Weight not good point changes from time to time 6. Deformities, 7. Birth marks injuries leaving permanent deformities moles, scar

Age of Scar: Recently formed: Slightly elevated, reddish/bluish, tender to touch

Few week-2 months: Inflammatory redness, soft, sensitive 2 6 months: brownish, free from contraction, soft > 6 months: white, glistening, contracted, tough Scar formation is delayed by: sepsis, age, depth of wound, mobility May not develop mall, superficial, healed by first intention. 8. Tribal marks, Sexual organs, blood exam

ANTHROPOMETRY ( BERTILLON SYSTEM) Alphonse Bertillon - utilizes anthropometrical measurement of the human body for identification. Basis: 1. Human skeleton is unchangeable after 20 years. 2. No two human beings have exactly the same bones. 3. Use of simple instrument Information: 1. Descriptive data color of hair, eyes, shape of nose 2. Body marks 3. Anthropometric measurement height 4. Measurement of the head, limbs Portait Parle ( spoken picture) picturesque description of a person Extrinsic factors in identification: 1. ornamentation 2. personal belongings 3. wearing apparel 4. foreign bodies 5. identification by close friends, police records, photographs

Light as a factor in identification: 1. Clearest moonlight = Less than 16-17 yards Starlight = Less than10-13 yards

2. Broad daylight = Not farther than 100 yards not seen before Almost strangers =recognized at 25 yards 3. Flash of firearm = 2 inches letters can be read with the aid of the flash of 22 caliber at a distance of 2 feet. 4. Flash of lightning sufficient light to identify 5. Artificial light relative to the intensity of light

B. Scientific methods of identification 1. Fingerprinting 2. Dental identification 3. handwriting 4. Identification of skeleton 5. Determination of Sex, Age 6. Identification of blood, blood stains 7. Identification of hair, fibers

MEDICO-LEGAL ASPECTS OF DEATH Importance of Death determination: 1. The civil personality of a natural person is extinguished by death. 2.The property of a person is transmitted to his heirs at the time of death. 3. The death of a partner is one of the causes of dissolution of partnership agreement 4. The death of either the principal or agent is a mode of extinguishment of agency. 5. The criminal liability is extinguish by death 6. The civil case fro claims which does not survive is dismissed upon death of the defendant.