Finding and Utilizing Forensic Esperts In Criminal Trials
By Daniel T. Stidham, Esq.
The purpose of this seminar is to discuss the
multifaceted process of first locating and then utilizing Forensic
Experts for criminal trials. It is self evident that this topic is a
rather complex one, and covering it adequately in the context of a one
hour seminar will be a formidable task. Specifically, it is hoped that
this discussion will help you identify resources for locating qualified
and competent experts to help you understand the nature of forensic
evidence in a particular case, the importance of getting the right kind
of expert for the specific circumstances of your case, and for
utilizing that expert fully once his or her services are obtained.
The Importance of Forensic Evidence
In a nutshell, Forensic Evidence is very powerful stuff. As we all
know, it can convict our clients quite easily. In order to represent
our clients adequately, we must be able to recognize the importance of
forensic evidence and it's power of persuasion. In order to do this,
however, we must understand the nature of forensic evidence and it's
underlying scientific principles. Forensic evidence can literally make
or break our case therefore we must also be able to first recognize it,
and then when it is necessary, enlist an expert to assist us
determining it's extraordinary value.
Unfortunately, physical evidence in a criminal case is seldom seen by
anyone involved in the investigation as having any intrinsic value [1].
In fact, a literature review conducted by Horvath and Meesig [2] showed
that physical evidence is used in less than 25% of the cases prosecuted
in the United States, with the percentage in some regions dipping to
less than 5%. Many of the agencies charged with investigating criminal
offenses, including coroners and law enforcement agencies, are either
poorly funded or poorly trained, or both, and as such, are not
qualified to gather, or analyze, complex forensic evidence. Just to add
to the confusion, we lawyers often rely on what we think is "good"
forensic analysis by so-called experts whom we assume are either
neutral, or unbiased, when in actuality nothing could be farther than
the truth. We need only look to the glaring example of the recent
malfeasance at the FBI Lab to realize the fallacy of this thinking. A
forensic expert with whom I have discussed this very topic with
recently says that it is very important to "assume nothing" when it
comes to forensic analysis. This particular forensic expert believes,
as do I, that the "State's expert is never your friend."
Finding an Expert
Sources for finding forensic experts should always include the following:
1. Direct referrals from other lawyers;
2. Referrals from other forensic experts;
3. Experts directly mentioned in reported cases and Bar journals; and
4. Professional Organizations for Forensic experts
Obviously, other lawyers are a great source of
referrals for experts. These referrals are usually quite good in that
most lawyers won't give you a referral to an expert that they have had
a bad experience with and the lawyer will be able to save you valuable
time in researching your expert. Also, experts themselves are a good
source for referrals to experts in other areas or subspecialties. I
have also found experts by reading cases while researching issues for
trial. This gives you good insight into an expert since you are
actually seeing how he or she testified in a case similar to yours.
There are several professional organizations out there for forensic
scientists which are similar in purpose to the Bar Association. The
American Academy of Forensic Sciences [3] is one such organization. The
academy maintains a web site and has links to many other subspecialty
sites. By visiting this site on the World Wide Web and the
corresponding subsites you can obtain information that will send you
directly to specific experts. Although the sites do not specifically
list experts and their addresses and phone numbers, they do list
officers and committees within the organization that have names and
numbers listed. In addition, the sites contain journal articles written
by specific experts in their particular fields.
Check Them Out
The search for an expert can involve many pitfalls. One only need to
recall the plight of young Jake Brigance in John Grisham's novel A Time
to Kill to realize that this is so. According to Turvey, [1] in a
Chapter of his new book devoted to finding forensic experts:
"Charlatans, frauds, and con artists frequently grace
the courtrooms with phony credentials, often for years, without being
discovered. Then one day someone asks a simple question about their
Curriculum Vitae, and the whole world comes crashing down around every
case that the "expert" has worked on. Always check professional
references, and be certain that those references and qualifications are
commensurate to the questions that are going to be put to the expert."
[Turvey, B., "Criminal Profiling: An Introduction to Behaviorial
Evidence Analysis,"
(London: Academic Press, 1999)
Always check the references of any expert you wish to
retain. Professionals won't mind you checking them out, and if they do,
this should be a "red flag." Keep in mind that the references listed in
an expert's CV are only those references that that particular expert
wants you to see. Always try to find references outside the CV if you
can. Ask the expert to give you the names of lawyers with whom he has
worked. When you talk to these lawyers ask them who was on the other
side. The opposing lawyer can usually give you tremendous insight into
the expert.
Always check to see if your potential expert is in good standing with
his or her licensing board and always make sure that your expert is
properly certified. Don't wait until trial to find out that your
expert's Doctoral degree was from a mail order catalog or that he is on
probation with his licensing board. Don't ever accept the word of your
expert on these issues, document them for yourself.
Always be particularly leery of experts who seek your case out. These
experts may be more interested in the notariety of the case than in the
truth of the facts of the case. While at the annual meeting of the
American Academy of Forensic Sciences in San Francisco last February, I
learned of a Forensic Odontologist who had offered his services to the
O.J. Simpson Defense Team claiming he had found a bitemark on Nicole
Brown Simpson's back after some of the autopsy photos had been made
public. He claimed that he could probably exclude O.J. as the person
responsible for making the bitemark. This would have been relatively
easy for him to do since the "mark" on Nicole's body was actually an
indention in her skin from the clothing she was wearing when she was
murdered. O.J.'s defense would have certainly been much less effective
had his defense team blindly gone with this "expert" who sought them
out only to be embarrassed later on. Of course we must imagine the
following colloquy to the jury: "if the bite mark don't fit, you must
acquit." Likewise, experts who advertise in Bar Journals should be
checked extensively for both their references and their credentials.
Make Sure Your Expert Stays in Their Field of Expertise
A good expert knows his or her limitations and the scope of their
expertise. These experts know when it's time to refer you to another
expert who does have that particular expertise. Some experts routinely
testify about matters just outside their areas and this can really come
back to haunt you if you are not careful. Not only will you look
foolish when the other side shows up with a genuinely qualified expert,
it will also undermine those areas where your expert was qualified to
testify.
Utilizing Experts in a Post Daubert World
Many of us are frightened about qualifying experts in the post Daubert
era. While I won't address the specific issue of qualifying experts in
this new era, I do want to discuss the use of forensic experts whom you
may not be able to qualify to testify at trial on certain topics, but
who can assist you, nonetheless, in invaluable ways. An example of this
type of expertise is the arena of "Criminal Profiling." Criminal
Profiling, in laymen's terms, is the building of a psychological
profile of a likely offender in a criminal case. While this type of
evidence would be difficult, at best, to get in at trial, it is
extremely useful in helping you prepare a trial strategy and
identifying other forensic issues which are readily admissible.
Profiling, as dramatized on Television, is not true deductive criminal
profiling. If you want to hire a profiler to assist you in your case
and he, or she, wants to go to the crime scene, pick up some dirt, and
wait for a flashback like the profiler in T.V.'s popular Millennium
series, get your self a new profiler. Likewise, if your profiler wants
to simply conduct statistical analysis, i.e. "all serial killers are
white males who drive VW Beetles and their mother hated them," get
yourself a new profiler. A true Profiler will be trained in Forensic
science and psychology and will assist you identifying issues in your
case, i.e. other more viable suspects, crime scene reconstruction,
identifying forensic evidence and wound pattern analysis. For an
overview of Deductive Criminal Profiling see the website for Knowledge
Solutions, LLC [4] and Turvey, B., [1] "Criminal Profiling: An
Introduction to Behaviorial Evidence Analysis.
Endnotes
1. Turvey, B., Criminal Profiling: An Introduction to Behaviorial Evidence Analysis," (London: Academic Press, 1999)
2. Horvath, F. & Meesig, R., "The Criminal Investigation Process
and the Role of Forensic Evidence: A Review of Empirical Findings,"
Journal of Forensic Sciences, November 1996; 41 (6): pp. 963-969
3. The American Academy of Forensic Sciences, website found at www.aafs.org
4. Knowledge Solutions,LLC , website found at www. corpus-delecti.com
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