Which question forensic examination answers
Medical examination and laboratory analysis are aimed at assessing the medically observable signs of the event. The legal question is whether the statutory elements of the alleged act are proved by lawfully obtained evidence. These two tasks must not be confused. No legally necessary equation can be drawn between “no findings” in a report and “the act did not occur”.
Related guide: Offences Against Sexual Integrity: TCK Articles 102–105, Elements of the Offences, Penalties, Evidence and Court of Cassation Case Law.
Timing of the examination and biological evidence
It must be assessed how long after the event the examination took place, the nature of the alleged contact, and by what method the samples were taken and preserved. A late examination or the failure to obtain a particular biological finding may have different causes. Scientific limits and margins of error should be stated clearly in the report.
What a DNA match means
The presence of a particular person’s genetic trace in a biological sample does not necessarily lead to the conclusion that the whole offence is proved, unless the probable time and manner of transfer and the other circumstances of the event are separately investigated. Contamination, storage of the sample under suitable conditions, the laboratory method and the comparison profiles must be examined technically. The presence of DNA and evidence showing the absence of consent are not the same thing.
A negative report and the victim’s statement
In the text concerning the decision of the 9th Criminal Chamber of the Court of Cassation (Yargıtay 9. Ceza Dairesi) dated 20.12.2023, E. 2023/11084, K. 2023/8656, the joint assessment of the report’s anatomical explanations and the statements is discussed even though no traumatic lesion was found on examination. This approach shows the importance of the concrete case and of the expert’s explanation in interpreting medical findings; the same result cannot be reached in every case.
Methodological review of the expert report
In the examination, the field of expertise, the method used, the data source, the assumptions, alternative explanations, contradictions between reports and consistency with the file must be tested. The court must give reasons for which part of the expert opinion it adopts and why. It is wrong both to use a psychological finding without a scientific method as if it were a finding of guilt and to treat a report as worthless merely because it runs against the defence.
Obtaining evidence, preservation and discussion at the hearing
Matters such as the sampling record, information on handover and storage, the original digital reports, the possibility of counter-examination and the hearing of the expert are important as to whether the evidence can be used as the basis of the judgment. Problems of unlawfully obtained evidence are assessed under CMK Articles 206 and 217. Whether a new expert examination is needed for a deficient or contradictory report must be reasoned concretely.
Procedure for obtaining and preserving biological samples
For samples taken at the scene and in the medical examination, the record, sealing, storage temperature, delivery to the laboratory and date of analysis must be assessed. The mere existence of a sample in the file does not show on its own that the sample was obtained reliably or preserved without deterioration throughout the whole process. The effect of technical faults on the reliability of the evidence must be examined concretely and by scientific method.
Objection to the report and re-examination
An objection to an expert report cannot rest solely on the result being adverse. First the report’s question, data, method, medical findings, uncertainties and alternative explanations are identified. Where findings are contradictory, it is shown whether the involvement of different fields of expertise is needed. It must be explained which element, if changed, could alter the outcome of conviction or acquittal.
The limits of forensic medicine and psychological findings
Symptoms of trauma may provide scientific information about the possible effects of the event on an individual. However, because the symptoms may arise from different causes, the basis for any claim of causation must be explained. A psychological assessment must not be presented as conclusive proof of the identity of the perpetrator or of all the elements of the offence. If scientific uncertainty is explained correctly, the court can reach a judgment that is more open to review in terms of both the protection of the victim and the guarantees of the defence.
Correct interpretation of a negative medical finding
The absence of a traumatic trace on examination is not equivalent to the conclusion that the alleged act definitely did not occur. The timing of the examination, the characteristics of the tissues, the conditions of sampling and storage, the sensitivity of the scientific method and the probabilities stated in the report are significant. Likewise, a positive finding does not automatically prove the identity of the perpetrator and all the statutory elements of the offence. The expert opinion must be prevented from taking the place of legal characterisation.
The limits of proof by a DNA match
The detection of a particular DNA profile in a biological sample does not always resolve the questions of how and when the sample came about. Mixed profiles, low-quantity samples, contamination, laboratory comparison methods and possible alternative explanations require scientific examination. The records and preservation steps from the taking of the sample to the report should be compared.
A concrete and reviewable objection to the expert report
The objection should rest not only on the report’s adverse result but on the scientific method and data it used: when was the sample taken, what method was applied, were uncertainty or alternative causes explained, is there a contradictory second report, can the analysis be repeated? By showing which element of the offence these questions affect, additional examination or the opinion of a new panel of experts may be requested.
The factual and legal limits of psychological reports
A psychological assessment may examine the child’s need for support and the possible effects of the facts described. However, symptoms alone do not conclusively determine the identity of the perpetrator or criminal responsibility. Pre-existing conditions, post-event stress and other explanations should be investigated. Whether the interview method is leading is also important for reliability.
Accurate reporting of degrees of certainty in a forensic report
“Consistent”, “probable”, “cannot be excluded”, “could not be determined” and “certain” do not have the same scientific force. An expression of probability in a medical report should not be transposed into a court decision as conclusive evidence. The expert must be able to show clearly on what data he or she reached which opinion, the limits of the method and, where necessary, within what time the samples were examined.
Conditions for a counter-report and an additional expert examination
Where another report contradicts the result of one report, the factual or methodological source of the contradiction should be investigated. An additional opinion that merely repeats the same sentence of the report does not in every case resolve an unresolved problem. The petition of objection must state clearly which scientific test or which missing document bears on the judgment; the expert opinion must not be substituted for the court’s legal discretion.
Does a negative forensic report settle that the offence did not occur?
The failure to detect a particular medical finding carries different meanings depending on how long after the event the examination took place and on the alleged conduct. In the decision of the 9th Criminal Chamber of the Court of Cassation dated 29.05.2023, E. 2022/12039, K. 2023/3563, expert explanations that some acts may occur without traumatic findings were assessed together with the other evidence. This approach does not mean that a conviction will be entered on every negative report; it requires the scientific scope of the negative result of the report to be discussed openly. Decision.
Obtaining, preserving and laboratory method for biological samples
A DNA match may carry high probative value as to a personal biological connection; however, from whom, from where and on what date the sample was taken, the possibility of contamination, storage conditions, the comparison profile used and the degree of certainty of the report must be reviewed separately. A match alone does not determine whether the act took place with consent or all the elements of the offence. A legal question that the expert has not answered must not be delegated by the court to the scientific report. In particular, where the report contains more than one possible explanation, these possibilities must be carried into the reasoning of the decision in full.
Falsification and testing of alternative hypotheses in objecting to an expert
An effective objection is not made merely by asserting that the report’s result does not suit the defence or the prosecution. The sample examined, the method, calibration, assumptions, contradictions between reports and alternative explanations must be tested. It must be written concretely which question will be answered by an additional report and for what technical reason a new expertise is needed. Where the basis of the decision that bears on the judgment is a psychological report, the report’s function of diagnosis must be distinguished from a function of determining that the event was committed by the perpetrator.
Conclusion
In assessing forensic medicine and DNA evidence in sexual offences, the relationship between the statutory elements of the offence or act concerned and the concrete evidence must be set out clearly. The reasoning of the court’s decision should address the decisive points of the charge and the defence; the legislation applicable on the date of the event should be taken into account. Protection of the victim and the guarantees of a fair trial are not opposed to one another, but are complementary obligations of a state governed by the rule of law.
Frequently Asked Questions
Does the absence of findings in a forensic report mean acquittal?
No; all the evidence is assessed together.
Does the presence of DNA prove all the elements of the offence?
No; identity, contact, consent and intent are separate questions of proof.
Can an expert report be objected to?
Yes; the method, data and conclusions of the report may be tested with concrete reasons.
Is a delayed examination worthless?
No; the result is assessed together with the timing of the examination and its scientific limits.
Sources and legal bases
- Turkish Penal Code No. 5237 (relevant articles and general provisions)
- Code of Criminal Procedure No. 5271 (relevant provisions on evidence and procedure)
- Güneş & Güneş — Index of offences under the TCK and special laws
- Court of Cassation (Yargıtay) 9th Criminal Chamber, 20.12.2023, E. 2023/11084, K. 2023/8656