Like many other experts, medical examiners use terms of art which might be confusing for non-experts. The use of the term “homicide” to classify a death might confuse jurors and attorneys alike. It may, therefore, be worthwhile to take steps to ensure that a medical examiner’s testimony conveys the proper information despite using a potentially confusing term.
When a medical examiner identifies a manner of death as “homicide,” they are not drawing a legal conclusion. When a death is not from disease, homicide is simply one of the five permissible classifications of death. N.C. Gen. Stat. § 130A-385 (the others are “accident, suicide, … execution by the State, or undetermined”). According to the National Association of Medical Examiners (NAME), “[h]omicide occurs when death results from a volitional act committed by another person to cause fear, harm, or death.” In a publication entitled A Guide for Manner of Death Classification, NAME specifically notes “[i]t is to be emphasized that the classification of Homicide for the purposes of death certification is a ‘neutral’ term and neither indicates nor implies criminal intent, which remains a determination within the province of legal processes.”
The North Carolina Supreme Court has found that a medical expert can discuss the factual finding that a manner of death was “homicide” without violating Rule of Evidence 704, if the term is properly used. In State v. Parker, 354 N.C. 268, 290 (2001), the court found “[the expert] used the word “homicide” to explain the factual groundwork of his function as a medical examiner. [The expert] did not use the word as a legal term of art. He explained how he determined the death was a homicide instead of death by natural causes, suicide, or accident. [The expert’s] testimony conveyed a proper opinion for an expert in forensic pathology, and the trial court properly allowed it.”
With this knowledge, there are several strategies a defense attorney may wish to consider in cases involving a “homicide” death. First, there may be opportunity to exclude testimony regarding the classification under Rule of Evidence 702. Second, if a medical examiner exceeds the limitations about what the classification means, it is important to make objections for the record. Third, a defense attorney may wish to ask targeted questions to clarify the limitations of the opinion being offered by the expert.
Under N.C.G.S. §8C-1, Rule 702, an expert’s testimony must “assist the trier of fact to understand the evidence or determine a fact in issue.” This may be important for several reasons. If the manner of death is not an issue or the expert cannot draw an adequate distinction between her findings and their application in a legal context, then using the term “homicide” may only serve to confuse the jury about the legal implications of a defendant’s acts rather than informing them of anything useful.
It is also vital that attorneys preserve objections for the record regarding any perceived improper testimony. In State v. Trogden, 216 N.C. App. 15 (2011), the North Carolina Court of Appeals found the trial court did not err under Rule 704 in admitting expert testimony designating a manner of death as homicide as opposed to by accidental means. The court noted that the issue was not preserved through an objection, eliciting a plain error standard of review. See id. at 20. With the precedent set in Parker, it is highly unlikely any expert testimony regarding the term “homicide” will be successfully challenged without proper, timely objections.
It might also be beneficial for defense attorneys to specifically question the expert about the meaning and limitations of the medical examiner’s “homicide” designation. If there is confusion within the legal field about the term, how much more so might a layperson hear an expert claim a victim died by “homicide” and assume that a crime must have been committed. Simply establishing the limits of the term’s meaning may prove beneficial, especially in a case such as a self-defense case.
Some examples which differentiate between homicide as a cause of death and as a legal definition can be found in NAME’s publication, “A Guide for Manner of Death Classification.” Some illustrative examples include:
7. Hunting ‘accidents’ in which a hunter intentionally fires a weapon (but may not intend to shoot at a human), may, for consistency’s sake, be classified as Homicide because the decedent died at the hands of another who volitionally fired the weapon. Each step but one involved intent and volition: loading the weapon, aiming it at a target, and pulling the trigger. The only intent absent was that of striking a human. The intent to hit a target was fulfilled. (…)
16. Deaths due to positional restraint induced by law enforcement personnel or to choke holds or other measures to subdue may be classified as Homicide. In such cases, there may not be intent to kill, but the death results from one or more intentional, volitional, potentially harmful acts directed at the decedent (without consent, of course). Further, there is some value to the homicide classification toward reducing the public perception that a ‘cover up’ is being perpetrated by the death investigation agency. (…)
25. Judicial executions may be certified as Homicide. In ‘How injury occurred,’ language such as ‘judicial electrocution’ or ‘judicial lethal injection’ may be used. (…)
26. When a young child shoots another child by pointing a gun and pulling a trigger, the death may be classified as Homicide even though the child may not be subject to prosecution. Undetermined may be appropriate if the circumstances are not well clarified, or Accident may apply if investigation shows a faulty/malfunctioning weapon.”
Active questioning of the medical examiner will hopefully clarify that while the manner of death is found to be “homicide,” that designation is not a legal conclusion. This finding should not unduly lead the jury to believe that a defendant is guilty, as it is merely one more piece of evidence from which to draw conclusions. It is not a legal conclusion on its own.