Sophocles' play Electra contains the line: "so would say the dead, if they could speak." In fact the dead do speak, after a fashion, and what they have to say is often of great importance in criminal cases. That fact was highlighted by the recent visit of Dr Henry Lee (
Lee stressed the importance of forensic science in criminal investigations. An important part of a successful forensic investigation is having an effective and modern medical examiners' office. Taiwan does not. And the lack of a modern effective program of medical examiners' offices means an increased chance for injustice within Taiwan's criminal justice system. Although most discussions of the criminal legal system start with the filing of formal proceedings, that approach overlooks aspects which will, in the end, have a very telling effect on how criminal cases are handled and how "just" the procedures and outcomes are. For it is an often overlooked fact that how effectively, how thoroughly and how competently the initial investigations are handled will fundamentally affect the outcome of any criminal case. Important parts of these initial investigations are the examination of the victim at the scene, as well as the collection, testing and preservation of physical evidence from the deceased victim. These duties, because they require medical training, fall to the medical examiner. Correctly handled medical examiners' investigations can clear the innocent and provide important evidence against the guilty. Poorly handled investigations can send an innocent person to prison, or worse -- to the gallows.
A common comment made by Taiwanese judges, prosecutors and defense counsel is that the poor quality of medical examiner investigations has a very detrimental affect on the outcome of criminal cases. From the prosecutor's side, poor medical examiner investigations means having questionable evidence on which to make a decision to charge. From the point of view of the defense, a poor medical examiner investigation means losing exculpatory or extenuating evidence that may clear the innocent. From a judge's perspective it means not having sufficient evidence to render a reasoned and just verdict. An infamous example of this is the Hsichih Trio death penalty case which is now being retried. In that case the medical examiner failed, either due to being too "shy," too lazy or too poorly informed, to collect body fluid samples from the female victim's genitals. As a result it can never been conclusively shown whether she was raped and, if so, who the rapist was. That lost evidence is critical to the case from both a defense and prosecution perspective.
Taiwan has some fine, dedicated, professional medical examiners. Taiwan also has medical examiners who are less than that. The system suffers from a number of problems that can and should be remedied. First, the investigation of suspicious deaths is handled by a number of different agencies and coordination between them sometimes is a problem. Secondly, the medical examiners offices often have inadequate resources -- in every sense of the word; human and financial resources, access to testing equipment, as well as physical facilities. The oldest extant text on forensic science is the Chinese book Instructions to Coroners (洗冤集錄) written in 1247. That book emphasizes the importance of forensic methods in finding the truth; convicting the guilty and clearing the innocent. It is time to heed the advice of that book and improve Taiwan's coroner system so that "the dead can speak" and justice can be served.
Brian Kennedy is an attorney who writes and teaches on criminal justice and human rights issues.
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