Let us say that you are a prosecutor representing the State of Florida in State vs. George Zimmerman. You have been added to the trial team and you are going to be in charge of forensics and expert witnesses. Angela Corey wants to meet with you tomorrow morning at 7 am sharp. What do you do?
(a) Announce you are opting for early retirement to spend more time with your family;
(b) Look up the word forensics to see what it means before you announce that you are opting for early retirement to spend more time with your family;
(c) Call the Director of the Crime Lab and ask for help; or
(d) Make sure you know how to spell forensics and then pretend you know everything there is to know about the subject.
The correct answer, as it is in all cases where you know that you are not an authority on a subject, is to contact someone who is an authority and ask for help.
Prosecutors are fortunate because they can contact the director of their state crime laboratory.
Defense counsel who know little about science and even less about forensic science need to call someone like me who can review the case, spot forensic issues, and steer the lawyer in the right direction toward knowledgeable and respected experts in the various areas of forensic science that are relevant to their case.
I used to do that when I was a co-chair of the Forensics Committee of the National Association of Criminal Defense Lawyers. All calls from member lawyers west of the Mississippi River were referred to me and I spent many hours helping people out.
Let’s take a look at the rules of evidence and see what they have to say about expert witnesses. Evidence Rule 702 provides:
Testimony By Experts
If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if
(1) the testimony is based on sufficient facts or data,
(2) the testimony is the product of reliable principles and methods, and
(3) the witness has applied the principles and methods reliably to the facts of the case.
Most of the witnesses who testify in trials are fact witnesses. They testify about something that they perceived through their five senses that is relevant to determine the outcome of a lawsuit. They are called fact witnesses because, with few exceptions, they are not permitted to express their opinions about facts they observed or infer the existence of facts that they did not actually observe.
Lawyers must be ever vigilant to spot and object to a fact witness expressing their opinion by representing it as a fact they observed.
If that happens, the lawyer should stand and say,
“Your Honor, I object because this witness is impermissibly expressing her personal opinion as fact. May I briefly voir dire the witness to lay the foundation for my objection.”
The judge will allow you to break in to opposing counsel’s examination.
Then you look the witness in the eye and ask,
Q: Ms. Witness, You just testified that my client stuffed a crocodile under the back seat of your patrol car, didn’t you.
A: Yes, I did.
Q: This was on the way to the jail, correct?
Q: You were driving correct?
Q: Watching the road ahead of you, right?
A: I reviewed your report, but I didn’t see you mention anything about seeing a crocodile in your rear view mirror, correct?
A: Yes, but
Q: And my client was handcuffed with her wrists behind her back, right?
A: But, but she had to have done it because . . .
Your Honor, this witness expressed an opinion, which is improper. Therefore, I move to strike her testimony when she said my client hid the crocodile under the back seat.
I also ask you to instruct the ladies and gentlemen of the jury to disregard that testimony.
The judge should comply with your request. Then you thank him and sit down.
Now opposing counsel gets to resume questioning the witness.
This type of interruption can throw opposing counsel off stride, but an experienced lawyer will just smile and remind the witness to stick to the facts they observed.
Another way to accomplish the same result is to wait and do it during cross examination.
Expert witnesses, unlike fact witnesses, can express their opinions. Depending on the complexity of the case you have, there may be any number of areas where you want to put an expert witness on the stand to express an opinion regarding a matter and this is where science enters the courtroom to establish facts and resolve disputed issues of fact. We call this forensics.
Under Rule 702 an expert witness may testify in a case whenever a jury is likely to need assistance to understand or to determine a fact in issue in a trial.
There are many disputed questions of fact in the Zimmerman case that cannot be resolved by ordinary fact witnesses,
In fact, very few disputed issues of fact in this case can be resolved by the fact witnesses who are all over the place with conflicting and confusing statements about what they saw or heard.
Only one fact witness, George Zimmerman, knows what happened because he killed the other witness, Trayvon Martin.
The case would be open and shut, if there were no forensic evidence and George Zimmerman’s statements were consistent with each other and consistent with the forensic evidence. As we have seen, however that is not the case.
To solve this case, we have to put aside our fear of science, roll up our sleeves and grapple with science.
Okay, now pick a side, either defense or prosecution and pretend you have to meet with Mark O’Mara or Angela Corey tomorrow morning and tell them in which areas of science they need to retain experts.
We already know some areas from the reports we have read: DNA, blood spatter, pathology, toxicology, firearm identification, trace evidence analysis, audiology, voice stress voice comparison analysis.
What other areas of science do you think should be investigated?
Another thought to consider is that our legal system is an adversarial system where each side hires its own experts to fight it out in front of a jury that knows little about science.
Would it be better to have the court appoint independent experts to to examine the evidence and testify subject to cross examination by both sides?
Should the Court or the jury decide disputed issues that can only be resolved by scientific analysis?
What about the problem of junk science?