Forensic medical evidence use in court

Using forensic medical evidence in court
It is a requirement by the International law for all states to carry out investigations for all allegations of torture and bring to book the culprits. The victims of such torture also need to be compensated adequately by the state. Many torturers perform their heinous acts in the dark, and try to conceal all possible evidence, but still aim at inflicting as much pain as possible. There is therefore need for comprehensive documentation that will expose the perpetrators in such a way that they cannot dare deny their crimes against humanity. The challenge here remains in proving that so and so committed such and such a crime (Wheeler, 2016). Failure to provide evidence of torture may foster a culture of impunity, where torturers can continue carrying out their acts knowing well that they will never be arrested, prosecuted and punished. This essay seeks to outline the potential for comprehensive documentation regarding evidence on human rights violation through torture.
To prevent that climate of impunity from developing, sufficient evidence must be gathered on any case against suspected perpetrators. Torture can indeed be proved by proper documentation. Experienced health practitioners can normally examine some psychological and physical sequel and give crucial information on torture cases. These findings are then presented to the judiciary, or any other appropriate body, who will then feel obligated to fully investigate such torture allegations and subsequently compensate the victims.
Forensic evidence in torture cases
Unfortunate events such as genocides, ethnic cleansing and massacres are normally characterized with torture, as well as strange disappearances and extrajudicial executions. For instance, during the La Violencia in Guatemala between 1978 and 1985, widespread counterinsurgency campaigns were witnessed in the Altiplanos, that is the mountainous region of Guatemala. Though the indigenous population formed unlawful guerrilla movements, the state military used uncalled for force in eliminating them (Wheeler, 2016). The militia could for instance round up a sizable number of locals and torture them to death, in the eyes of the other locals (Zur, 1995).
If there be survivors in such instances of torture, they should be immediately subjected to thorough medical examination, preferably by an independent medical examiner. This is because most of the physical injuries inflicted through torture are normally on soft tissue, and thus have a high likelihood of disappearing as time goes by. Also, the memories of torture are still fresh to the victim’s mind and they can narrate them flawlessly (Wheeler, 2016; Stan, 2012). For the deceased victims of torture, autopsies should be conducted immediately the bodies are received, preferably by an independent forensic pathologist. This should be preferably done before post-mortem so that no evidence is destroyed.
In case the torture victims are already buried, whether in single or mass graves, it would also pay to exhume their bodies for examination. Whatever method is used for investigation on exhumed bodies should be approved by the judiciary. The examinations should also be done for one body at any particular time. Information such as age, sex, stature, ancestry and handedness of the victim must be recorded.
Complicity of forensic in torture
Doctors can participate in torture either actively or passively. A doctor may for instance approve the use of chemicals to torture someone, generate false medical reports, or refrain from reporting torture. Such passive participation normally goes unpunished (Mostad and Moati, 2008). Doctors have been known to behave in such manner mainly because of due loyalty. This is where the doctor prioritizes on the the interests of the state or their organization in lieu of the patient’s interests. This behavior by doctors has been questioned by bodies such as the International Committee of the Red Cross (ICRC), and PHR. What is the role of health care professionals in torture? (Rees, 2010).
Both active and passive medical complicity in torture are an outright violation of the medical code of ethics as well the human rights laws. The medical code of ethics have it clear that no doctor should knowingly inflict unwarranted pain on a patient. More so, the doctors, as they take the Hippocratic oath, swear to do no harm to any individual. This is also reflected in the Nuremberg Code, which was as a result of the trial of the Nazi doctors. The WMA declarations of the cities of Tokyo and Geneva also support the “do no harm” policy. The United Nations Human Rights Council passed one important law regarding the role of health care providers in torture and other dehumanizing acts (Picozzi et al., 2016). The law was further emphasized through a BMJ article, stating that under no circumstances should a doctor involve himself in acts of torture. Medical complicity is under close watch by the UN special rapporteur.
Medical complicity in torture is an international concern which ought to be prevented at all costs by the various organizations. Many organizations actually fight for ethics and human rights, but rarely do they touch medical complicity. Take the example of Chile, as the country was coming to a close of the Pinochet regime - scores of citizens were tortured, and some of the doctors who played part in the torture were expelled by the Chilean Medical Association. Likewise, two South African doctors faced the law when they deliberately refused to treat the injuries of Steve Biko, the famous anti-apartheid activist who passed on while under arrest by the police (McColl et al. 2012). Eight years later, the responsible doctors were brought to book after pressure from the World Medical Association. The South African Medical Association did not want to get involved in this matter and even went a step further to withdraw from the WMA.
The above mentioned instances of medical complicity in torture are not the only ones. In recent times, the PHR drafted a report titled ‘Aiding Torture’, which lobbied for the investigation of health care professionals regarding their role in torture. The report was influenced by a leaked document from the International Committee of the Red Cross, which detailed how doctors employed by the Central Intelligence Agency in Guantanamo were instructed to oversee torture by such methods as shackling and water boarding (McColl et al., 2012). It was concluded that the health personnel grossly breached the medical code of ethics by participating in torture, whether directly or indirectly.
The Medical Justice of the UK have documented a breach of ‘Rule 35’ which states that vulnerable people, including victims of torture should in no way be detained. The same have also seconded the claims of poor documentation of torture by health care practitioners employed in detention centers and their failure to treat the victims. Medact recently drafted a report titled ‘Preventing Torture’, which expounds the wanting gap between medical practice and the ethical codes (Augustin et al. 2011). The report also also gives suggestions to the WMA and National Medical Associations on how to deal with torture, basically through supporting the victims and responding appropriately to medical complicity. It is recommended that the health care professional be coached in diagnostic skills, ethical duties, how to get confidential advice and how to reach the UN special rapporteur.
Medical complicity in torture is evidently a vice that should never be practiced by any properly trained doctor. One BMJ editorial however reported that majority of doctors abet torture instead of treating the millions of victims. The view is however biased, taking into account the numerous health professionals who prevent torture.
Evidence admissibility and expert reliability
In 1993, the Daubert test was introduced after the supreme court case between Daubert and Merrell Dow Pharmaceuticals. The test basically determines how relevant and reliable expert forensic testimony is, based on these five factors: use of control standards, theory test-ability, error rate, peer review and acceptance by the concerned scientific community (Daubert v. Merrell Dow Pharmaceuticals, 1993). Page et al. (2011) studied 81 cases that followed the Daubert test, and identified the five outlined factors as reasons why judges excluded forensic evidence. Another important factor was the failure by experts to correctly explain the methodology and produce detailed documentation of torture.
In the recent past, commercial vendors have come up with reliable methodologies to examine digital evidence (Garrie, 2014). This is a great step from the initial manual analysis which required many years of experience and extensive training to be able to produce some digital forensic report. Such hardware and software solutions have raised the number of forensic experts and reduced the costs of coining forensic reports. The depth of knowledge required for an average forensic examiner has however reduced.
The challenge with this is production of flawed and unreliable forensic reports by under qualified forensic examiners. You will find quacks who quickly train themselves in handling the forensic digital software and start their practice before gaining the in-depth knowledge required for this field. The reviewer of these reports should therefore be on the lookout for such substandard reports. There are currently no rules to gauge how competent a digital forensic examiner is, and so this worsens the situation. The common practice is to evaluate the education, certification and hands on experience of the digital forensic examiner for the particular case at hand (Garrie, 2014). A digital forensic examiner must at least have passed through classroom training as well as practical training in the lab and in the real world. The quality of such training can be related to the level of experience of the instructors and the infrastructural endowment of the institutions offering the forensic training.
A digital forensic report must be accompanied by relevant images, otherwise the report will be less dependable. According to Garrie (2014), little credence should be given to reports which cannot be reproduced by use of similar forensic images and analysis software.
The forensic examiners should in no way produce untruthful reports, either by understating, overstating or omission of certain findings. No matter the pressure and influence that is usually exerted by the attorneys, the examiners should aim at producing carefully circumscribed reports devoid of any fraud.
Istanbul protocol
The Istanbul Protocol is a brain child of the United Nations Office of the High Commissioner for Human Rights (UNOHCHR) and the United Nations High Commission for Human Rights (UNHCR). It outlines the first ever internationally recognized rules regarding the investigation and examination of torture claims. The Istanbul Protocol is aimed at preventing torture by equipping states with a definite methodology of documenting torture effectively and prosecuting the perpetrators through a high level of proof. It was also envisaged that the protocol would be used in other contexts such as asylum, which requires a generally low level of proof. Both the UK Home Office and the UK courts have adopted the use of the Istanbul Protocol (paragraph 92).
As outlined in the Istanbul protocol (paragraph 105), the health care professional should first ascertain whether psychological and physical findings of the clinical examination concur with the torture claims. In doing this, the health care professional should consider the social-cultural framework of the torture victim, the alleged period of torture and other external factors that may be affecting the victim at the time of reporting. All this helps in documenting a valid proof of torture. The report should be non-biased and should reflect the professional expertise of the evaluating doctor. It is required that the clinicians conducting such evaluation be adequately trained in forensic documentation of torture (paragraph 162).
Paragraph 187 of the Istanbul Protocol details how specific forms of torture should be documented and evaluated. For instance, for physical lesions, the clinician should examine the individual lesions as well as the overall pattern formed by the lesions, and indicate how consistent they are with the patient’s narration. The following schema should be used to make this description:
A. Not consistent - the trauma described by the patient is not related to the lesions
B. Consistent with - though the lesion might have been as a result of the trauma, there remains numerous other possible causes
C. Highly consistent - the lesion might have been as a result of the trauma, but there are a few other possible causes
D. Typical of - the lesion is related to this kind of trauma, but we can’t ignore the possibility of other causes
E. Diagnostic of - the lesion was definitely caused by the trauma
Paragraph 188 of the Istanbul protocol goes on to say that the torture story should be ascertained by examination of all the lesions, and not just by the consistency of an individual lesion. A psychological evaluation should definitely be part of the documentation process because this can reveal critical evidence of torture. It is a fact that torture victims also display psychological symptoms, and not just physical symptoms (paragraph 260).
Such psychological evaluation will determine how consistent the account of the torture victim is with the psychological symptoms observed. Psychological evaluation entails both clinical impressions and social functioning of the torture victim (paragraph 261). The evaluating clinician should be careful to assess the emotional state of the victim as he conducts the interview, as well as his personal expression. The clinician should also inquire about the victim’s history of detention and all what he was up to before the torture. Also the difficulties encountered by the victim in the process of forced migration and resettlement ought to be detailed (paragraph 288).
The Istanbul Protocol also requires a psychiatric diagnosis to be carried out, in accordance to the International Classification of Diseases (ICD-10) (World Health Organization, 1993) or the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) (American Psychiatric Association, 2013). That is only if the torture victim portrays psychiatric symptoms. Even so, it should not be assumed that the said victim did not undergo torture just because his symptom levels don’t qualify for psychiatric diagnosis. The Istanbul Protocol emphasizes the need for the clinician to closely assess the consistencies and inconsistencies so as to ascertain whether the victim actually passed through torture or is just fabricating stories. The clinician should however note that memory impairment on the part of the torture victim as well as confusion, cultural differences and dissociation, may influence the consistency of the testimony with the observable symptoms.
Case study of Khaled Said, a 28-year old Egyptian murdered by the police
Khaled Said was brutally murdered by the police on the 6th of June, 2010 in the Egyptian city of Alexandria. As expected, the Egyptian police denied having killed Said, and instead blamed his death on drug abuse. However, the look of Said’s face after the arrest did not support such claims, as well as the eye witnesses present during his death ((IRCT, 2013).
The brutalized face of the young Egyptian was nowhere in comparison to his youthful image before the arrest. As the contrasting photos spread across the globe, Egyptians grew increasingly intolerant of the torturous Mubarak regime. When the official autopsy report was released, it was in agreement with the Police version of Said’s death, that he had died from asphyxiation as a result of swallowing a plastic bag filled with narcotics. The police said that, when Khaled Said saw them approach, he panicked and resorted to swallowing the drugs in his possession in large quantities, maybe to conceal any evidence that he had illegal drugs with him. National and international pressure forced the formation of a tripartite commission to carry out a non-biased evaluation of the deceased’s cause of death. The three Egyptian doctors likewise concluded that Said died from asphyxiation. The El Nadim Center for Psychological Treatment and Rehabilitation of Victims of Violence, together with the lawyer representing Said’s family, requested the International Forensic Experts Group (IFEG) to provide an expert opinion on the two doubtful autopsy reports. Professors Duarte Nuno Vieira and Jorgen Lange Thomsen were tasked with this challenge (IRCT, 2013).
The two experts revealed that the initial autopsy report was not in line with the minimum international requirements for forensic autopsies and that it had quite a number of significant deficiencies (IRCT, 2013). The first autopsy report also failed to produce enough data to support death by asphyxiation. The aspects described in the report, including cyanosis and congestion, were found to be non-specific and no valid conclusion could be made from them. The two experts also found the second report to have deficiencies and weakness similar to the first report. This was even much lower as regards the internationally acceptable standards for forensic reports (IRCT, 2013).
The experts thus concluded that the two reports could not substantially prove that Khaled Mohammed Said Sobhi died from asphyxiation. Following these fresh revelations, the two policemen were indicted for their participation in Said’s death. Egyptians at large feared for their lives, since they risked being beaten and tortured at any time. Fierce demonstrations followed soon afterwards, and in February 2011, Hosni Mubarak was ousted out of power.
Conclusion
Ill treatment and torture are two crimes that require detailed documentation if the perpetrators are to be convicted and the victims obtain justice. The victims have this challenge of proving they were tortured. This is made even more difficult by the absence of physical signs to prove the claims of torture. This has many times caused the concerned parties not to pursue investigations any further. Effective documentation, though essential, cannot in itself bring to an end the torture and ill-treatment of citizens. In addition to effective documentation, the following problems should be addressed:
1. Corruption among top government officials
2. Production of substandard medical evaluations of ill-treatment and torture
3. Biased forensic documentation
4. Judges allowing the use of torture to make victims confess the truth
5. Lack of independence between prosecutions and criminal investigations
6. Failure to impose sanctions on perpetrators and health professionals practicing medical complicity
7. Shoddy police investigations
8. Biased legal defense system
9. Inadequate legal investigations
10. Inadequate monitoring of police practices


References
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