Expert witnesses and the truth

By The American College of Forensic Examiners

         Justice in most criminal cases balances on the pinpoint of testimony, which attorneys for the prosecution and the defense attempt to tip in their favor.
         Testimony often comes from eyewitness accounts that may on the surface seem to be reliable, but in many cases are clouded by poor memory, bias, or simply wrong interpretation.
         Often, eyewitness testimony is lacking or unclear, and attorneys turn to expert witnesses to analyze evidence and draw conclusions. There are vast arrays of experts available to choose from, and attorneys are sometimes accused of shopping not for the most qualified impartial expert witnesses, but for experts who are the most willing to back up the attorney’s interpretation of the case.
         Courts have long agonized over how to separate qualified expert witnesses from those who are incompetent or only out to make a buck. Furthermore, courts have struggled to apply an impartial, scientific standard to evidence.
         It’s a difficult task to judge the character and the competency of an expert witness. There are many ways for a professional expert witness to inflate his or her resume, or for a clever attorney to present an expert’s credentials as something they are not.
         Professional associations have stepped forward to set standards and to certify members based on their qualifications and their knowledge.
         The American College of Forensic Examiners Institute (ACFEI), the world’s largest forensic science association, has been a leader in quality certification programs for 16 years. The ACFEI has programs such as Certified Forensic Consultant (CFC), Certified Medical Investigator (CMI), Certified Forensic Accountant (Cr.FA), and Certified Forensic Nurse (CFN).
         Members of the ACFEI who meet the strictest standards of experience and education can advance to the highest levels in the organization, Diplomate and Fellow.
         Anyone who has an interest in forensic science can be a member of the ACFEI and receive such benefits as a subscription to the ACFEI’s quarterly journal, The Forensic Examiner -- but certifications and advanced levels of membership are reserved only for those who meet strict standards.
         High-level professionals serve on boards within the ACFEI, and they are fiercely protective of the standards of the organization. After all, their own reputations would be damaged if the ACFEI had low standards, or did not enforce its standards, or if the ACFEI did not verify the history of applicants for certification.

         Here are just some of the steps the ACFEI takes to verify certification candidates:

Candidates must submit complete resumes detailing their career and education.
Candidates must submit professional references, and the ACFEI contacts them to verify that the candidate has valid and relevant work experience.
The ACFEI contacts higher education institutions to verify that candidates have in fact graduated.
Candidates take rigorous examinations that they must pass in order to be certified. The ACFEI offers certification courses at its national meetings that are taught by outstanding professional experts, and there are online courses to help candidates prepare for examinations. These courses help professionals to excel in their fields and be ready for the challenges they will face. The courses are developed by professionals and are designed to instruct on the competencies that those who are certified should have in their individual fields.

         Courtrooms are adversarial environments, and opposing attorneys often challenge expert witnesses. This is as it should be, because expert witnesses can have the power to greatly influence the outcome of a case. It’s not uncommon for an attorney to drill down into an expert’s background and qualifications, as well as the expert’s motivation for presenting testimony. Attorneys will sometimes challenge the certifications and memberships of an expert witness.
         The competitive nature of the courtroom explains why certification programs sometimes are criticized. Legitimate certification associations such as the ACFEI welcome this, because questionable certifications not only may give a poor picture of the qualifications of a witness, they also damage the reputation of good certification programs.
         There is also a competitive environment outside the courtroom, because in many cases there are rival associations and businesses that offer similar certification programs. For instance, members of smaller forensic associations in competition with the ACFEI have sometimes stepped forward to disparage the ACFEI’s programs. It’s human nature for members of one group to work against rivals.
         Often a company under attack will be described as a “certification mill.” The implication is that certifications are granted to anyone who pays the money, and they are not worth the paper they are printed on.

         Such unscrupulous businesses arise from time to time, and they profit for a time and rapidly collapse for these reasons:

Legitimate professionals will not want to be associated with an organization that certifies anyone.

The scrutiny of the legal process exposes worthless certifications.

Fraudulent certification operations will likely break state or federal laws and be shut down by law enforcement.

Certification mills do not last for long because they can’t sustain worthless certifications. Often they may change locations, change names and start over when their schemes are exposed or are no longer profitable.

History of court admissibility of expert testimony

         The main rule of law regarding scientific testimony for much of the twentieth century was the Frye Test, developed from the 1923 case, Frye v. United States. The Frye standard instructed courts to judge whether scientific evidence was “generally accepted” by a significant segment of the scientific community. This standard was applied along with the judge’s opinion on the relevance of the evidence to the case.
         In 1993, the U.S. Supreme Court ruled in Daubert v. Merrell Dow Pharmaceuticals that federal trial judges must evaluate expert witnesses to determine whether their evidence is both relevant and reliable. Relevancy goes to how well an expert’s testimony fits the facts of the case, and reliability is determined by the scientific method used to analyze the evidence.
         Trial judges have always been able to exclude inappropriate testimony, but courts before Daubert often let juries hear evidence from both sides and use their own judgment. Daubert rulings often are used as precedents by other courts, so a type of evidence or testimony excluded in one trial may be excluded in another for the same reason.

How to select good expert witnesses

An article in the November 2002 edition of the Los Angeles Lawyer gives these good tips on finding a good expert witness:

An ethical prosecuting or defense attorney should first and foremost be interested in finding the truth in any case. This means that the attorney should seek expert witnesses who will be independent and give impartial analysis of evidence.

The first warning sign an attorney should notice would be an expert witness who seems too eager to agree with the attorney’s case. There’s always the chance that the witness is just seeking employment and is willing to play fast and loose with the facts. There is also the danger that an expert who is too agreeable at first may also be too agreeable when the opposing attorney challenges the expert on the stand. An expert who reaches a thoughtful conclusion and holds it under pressure will be far more effective.

Experience in a courtroom is beneficial. An experienced expert witness knows what to expect and can handle tough, complex questioning. Training also is important. Experts who are Certified Forensic Consultants have received training on providing effective courtroom testimony.

Communication is vital. The expert should be able to communicate in short, clear sentences and be able to provide scientific analysis in terms that jurors will understand.

The longer an answer that an expert witness gives, the greater the chance is that something will be said that can be challenged.

Enthusiastic individuals who have high energy make the most effective expert witnesses.

Ask yourself if you are convinced that the expert uses common sense methods.

Make certain that the professional’s certifications are relevant to the testimony required and that they come from an organization with strict standards.

Make sure the expert, and the expert’s employing firm run a conflict check. Conflicts and contrary positions can cause great damage.

Check what the expert has written to make certain there are no contrary positions that an opposing expert could exploit.

The American Bar Association’s guidelines

         The American Bar Association’s Model Rules of Professional Conduct contain rules that apply to the relationship with and conduct of expert witnesses.

Rule 3.3 states that if a lawyer, the lawyer’s client, or (an expert) witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable measures to remedy the situation.

Rule 3.8 requires prosecutors to disclose any new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted.

Rule 5.3 states that a lawyer having direct supervisory authority over the nonlawyer (such as an expert witness) shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer.

Rule 8.3 states that a lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority (This also applies to the employment of expert witnesses).

Rule 8.4 states that it is professional misconduct to violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another (such as an expert witness).

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