380 Forensic dentistry
expressed in a forensic dental case is likely to lead to testimony. This chapter
will guide the reader through the legal and court systems of the American
justice system, explain the need for, and the use of, the expert witness in
legal proceedings, and conclude with a review of several case law examples in
which forensic dental testimony played an important role.
16.1.2 The American Legal System
The American legal system has at its foundation several important principles.
First and foremost, it is an adversarial system in which opposing parties enjoy
representation by attorneys who advocate for their client’s position. This
occurs in criminal cases, civil cases, and administrative law cases. The heart
of the advocate’s representation is his or her duty to investigate fully the cir-
cumstances and events surrounding the legal action coupled with the ability
to subject the opposing side’s witnesses to a vigorous cross-examination ,
allowing the testimony of the witness to be thoroughly tested in front of the
trier of fact—judge—or jury. A second principle is known as stare decisis,
Latin for “to stand by that which is decided,” or the principle to adhere to
prior precedential court decisions furthering the maxim “rule of law, not
by man.” A third and bedrock principle is that the U.S. Constitution estab-
lishes the rights of citizens, which neither courts nor legislators can reduce
or intrude upon.
The American legal system can be studied from diverse perspectives.
One can consider the division between criminal cases and civil cases, focus
on the differences between federal courts and state courts, or study the pro-
cesses of the courts and how a legal case proceeds through the legal system.
A brief discussion of each may be helpful.
16.1.2.1 Criminal Litigation
A forensic dentist will most commonly be involved in criminal cases such
as the prosecution or defense of a homicide. In a criminal case the govern-
ment (commonly referred to as the State or the People) brings an action to
impose sanctions for violations of the criminal code. The prosecution team
is usually led by an elected individual, often known as the district or state’s
attorney, who is empowered through the office to pursue charges against
individuals who have been arrested or cited for alleged violations of the law.
The prosecutor’s office and those who represent him or her in court are not
duty bound to secure convictions but rather to present the state’s case fairly
and demonstrate before the judge and jury that the accused has, by pre-
sentation of evidence, performed the elements of the crime. For instance,
in a homicide, often defined as the killing of one human being by another,
the prosecutor may require testimony from many sources to prove who was
killed, how that individual was killed, when the killing occurred, that the