Evidence collection at the hospital — Court-Martial Trial Practice Blog

Wednesday, March 25, 2020

Batts & Sanger on Collecting Forensic Evidence in the Emergency Department

Jayne J. Batts and Robert M. Sanger (affiliation not provided to SSRN and Santa Barbara College of Law) have posted Collecting Forensic Evidence in the Emergency Department: A Guide for Lawyers, Investigators, and Experts (American Journal of Trial Advocacy, Vol. 42, No. 2, 2019) on SSRN. Here is the abstract:

Murder, vehicular manslaughter, assault, and other major felony cases often involve evidence that makes its way into the emergency department (ED) of a local hospital or a regional trauma center. This evidence may be found on the person of a patient who was a victim, a witness, or an accused, and it is often brought into the trauma room by the paramedics or others who arrive with the patient. In fact, the evidence also may be the traumatic injuries sustained by a victim.

The main focus of emergency department personnel is to assess and treat their patient’s injuries, which may require the performance of lifesaving procedures in the emergency department or in the operating room. The preservation and collection of forensic evidence, as well as the documentation of the patient’s wounds, is an important but secondary concern. Furthermore, training in the preservation and documentation of forensic evidence as well as the documentation of the patient’s wounds is almost non-existent in the curriculum of nursing programs, medical schools, and residency programs.

Additionally, even though the preservation and collection of forensic evidence is mandated by The Joint Commission,1 apart from protocols for the evaluation of sexual assault victims, most healthcare facilities do not have any formal protocols in place for the collection of evidence in other types of forensic cases. Nevertheless, the evidence encountered in the emergency department can be forensically significant in the legal proceedings that ensue both in civil and criminal cases. What has been correctly preserved may be critical to legal issues in a case. In addition, knowing what evidence may have been altered, destroyed, or discarded entirely at the scene or in the emergency department may also be critical to lawyers, investigators, and experts in subsequent investigations, as well as in civil and criminal litigation.

There are practical and effective evidence collection protocols and techniques that can be used with regard to potential evidence in the emergency department without sacrificing the primary medical goals of providing expert care to the victim of a violent crime. Implementation of evidence collection protocols by pre-hospital providers; emergency physicians; trauma and orthopedic surgeons, as well as the nursing staff in the emergency department; operating rooms; and Surgical Trauma Intensive Care Units, can and will enhance the preservation and documentation of evidence that might otherwise be lost or contaminated. The protocols also improve the reliability of the chain of custody of items that may be of evidentiary value.