Pretrial communication with defense counsel by medical examiners' pathologists

Forensic pathologists (FPs) form opinions in homicide trials and often are key witnesses for the prosecution. Early access to the FP by defense counsel may be strategically important, but state statutes differ regarding pretrial availability of the autopsy report to the defense, and the degree of pretrial communication that is permissible or desirable between the FP and defense is unclear. We surveyed a sample of FPs to determine their practices and opinions regarding pretrial communication with the defense. We compared responses with years of training, early professional role models, local autopsy report disclosure statutes, and reasons for practices. All respondents indicated a willingness to informally communicate with the defense, but many would notify the prosecutor and some wanted prosecutor's presence or permission. Prosecutorial involvement correlated with work load and with stated reasons for practices. Case law in most states prohibits the prosecutor from interfering with defense communication with witnesses, including experts. However, witnesses are free to refuse to talk informally to the defense. Some states limit publication of the autopsy report outside formal trial discovery procedures. Only one state, Arkansas, does not allow the medical examiner to give out any information, thereby precluding informal communication with the defense in that state.