Expert Witness (2 page)

Three of our crew were very dedicated and set off early in the morning to get in a full day's mapping. My friend Julia and I, on the other hand, had decided we'd do it the easy and, more importantly for self-justification, safe way. Neither of us was keen on being in the field on our own but we weren't really taken that seriously when we raised our concerns before we left England. To combine safety with speed (always rely on a woman to multi-task and do things the quickest and most effective way) we borrowed her boy friend's car. He was one of the keenies who was out at the crack of dawn trudging up hills with his freckly English legs flashing through the grass. We drove around both our allocated field areas and when we saw a rock outcrop, we hopped out of the car, quickly dashed across a field or two, took some measurements, hopped back into the car, on to the next site or café, whichever came first. We covered a huge amount of ground and got lots of data in a fraction of the time. Perhaps doing the fieldwork by car saved our lives.

At the time we were on this field trip, a husband and wife were driving around the Ardennes luring girls and young women into their van to be raped, murdered and dumped. Some of the bodies were found in the grounds of a castle the husband, Michel Fourniret, owned. He was to become known as the Ogre of the Ardennes, and in 2008 was found guilty of murdering seven young women between 1987 and 2001, in and around the Ardennes region of the French-Belgian border. He is also suspected of having murdered others, including in 1990 a young British woman, Joanna Parrish.

I was blissfully unaware of all of this until I was researching this book. Had Julia and I not teamed up and taken the car, either one of us may have become a victim and I could have become involved with forensic science for all the wrong reasons.

V
iewing life as a forensic scientist is very different from any other perspective. In a previous life, I was a geologist. My view then was far more pleasant. I didn't see landscapes as simply a collection of trees, hills, streams, cliffs and beaches, but with a mental overlay of geological maps, each part of the country a different colour depending on the age and type of rock beneath the surface. I saw it as geological processes in action, the changing face of the earth, volcanic history beneath
my feet. Weather wasn't just a set of clouds, it was circumpolar winds, jet streams, Hadley cells. It was lovely and airy and if I had to choose a colour to describe it, I'd choose green.

As a forensic scientist I now look at things from another perspective. Every open window is a potential entry point for a criminal, every set of handwriting is about the sweeps and curls peculiar to that writer, every crumpled car panel is a message about the cause, every alcoholic drink has a residence time in the body. The world I inhabit now is often brown and grey, but that could just be lack of sunlight (there's a lot of paper work and not many windows in the laboratory).

I've stopped writing anything vaguely important on pads of paper because of the impressions left on underlying pages. If I need to write down any secrets I make sure I have the single sheet of paper on a hard surface like formica or concrete, not wood or paper. I drive with my car doors locked (bag snatchers at traffic lights), I park my car in well-lit places, preferably with CCTV cameras, which I try to turn and face without drawing too much attention to myself. If I can avoid it, I never open the front door at the usual point of contact, lest I smear any important finger prints. I don't put any personal information into rubbish bins and Facebook details are a no-no.

It sounds extreme but it's just the way I've learnt to be.

 

The world of forensic science is a very serious one and forensic scientists are a guarded lot. As an expert witness at court you can't let anything out in case the ‘other side' gets a whiff of your personality and somehow capitalises on that in order to win their case. In the United Kingdom, New Zealand and certain other countries we are, after all is said and done, working in
an adversarial system. And regardless of what anyone says, this system is heavily influenced by legal personalities and game-playing.

Because of the prevailing perception within this system that showing personality is a weakness, I believe forensic scientists are the only witnesses at court who aren't allowed to be real people.

If you asked a jury who were the most memorable people they saw in a case, I bet they'd say the ones with personalities — because they remember them and are therefore more likely to remember what they said. I don't
actually
know what they'd say because I've never spoken to anyone who's been on a jury for any of the cases with which I've been involved — it would be unethical. Now I come to think about it, I don't think I even know anyone who's been on a jury.

The inability to show personality is a conundrum, especially for an expert witness like me. I'm told I'm good at my job (I'm a modest sort) and I get enthusiastic about it and I like to talk about it in a non-specific manner (no names are mentioned). Court is not the place to talk about your knowledge, except in a very controlled manner. Number one rule for counsel: never ask a question to which you don't know the answer. This is supposed to apply when examining or cross-examining but it also seems to extend into the time before the hearing or trial. I've lost count of the number of times I tried to tell defence counsel before a trial that my evidence wasn't going to be helpful to their client and then when I said some thing unhelpful in my oral evidence they got all lemon-sucky-faced about it and refused to talk to me afterwards. You can't tell some people, as my mother would say.

The upshot of this is that I love my job and I love giving presentations, talks, seminars, workshops, training courses — you name it. I also accept that giving evidence in court or in front of a tribunal is a critical part of the job and, although I won't go as far as to say I enjoy it, it's some thing I hope I do well. I am experienced in the ways of the court and I know when not to speak beyond what I've said and I understand the limits of what I need to say. It's a skill all good expert witnesses nurture and hone and all good barristers and solicitors recognise when they see it in the witness box.

For example, there's no need to waffle on about how tandem mass spectrometry works unless it's directly relevant to the issue at hand. Otherwise it's boring for everyone in the court and, as a witness, you lose your audience's attention. If you've waffled on about your beloved tandem mass spectrometry and everyone's half asleep and counting down the seconds until break time, no one will be sufficiently focused to notice when you say some thing interesting or of relevance, such as:
Ninety-five per cent or more of English bank notes have traces of cocaine on them.

It is also incredibly difficult not to speak to fill a silence; it's a well-used interview tactic. It's a challenge to finish what you want to say and then stop, especially if you're being cross-examined and counsel wants you just to fill the silence with some thing that might be of assistance to their case. Just say what you have to say. Stop talking. Silence. Wait. Someone will do some thing but it doesn't have to be you.

Here is an extract from a court transcript which demonstrates when not to get too over inflated and relaxed when giving evidence as an expert witness. The expert is being cross-examined by the QC for the other side (a QC is a
Queen's Counsel, a level of title awarded to only some senior barristers):

I was right. Expert: nil, QC: 1. The expert lost credibility as a result of that short exchange, because everyone in the court went through approximately the same mental thought processs:

Ha ha, that's funny. Oh, no it's not. That barrister bloke's got a point. It's not
really
funny. Feel a bit embarrassed. Hope no one's looking at me. I'll look at that bloke in the witness box instead. Blimey, glad I'm not him; he looks gutted. I'll try looking serious to show I wouldn't laugh at some thing like someone shooting themselves. Fancy an expert saying that and laughing. Not very professional. What did he say just then? I missed that last bit …

An expert should keep their personality in check in the witness box, no matter what the question. Some times, though, it's very hard to resist the temptation to say some thing smart. You have to remember that particularly in serious cases such as murder, the court proceedings are being transcribed into what is called the trial transcript (or a similar name, depending on the country). It's therefore not good enough to point to some thing and say,
the sample came from there.
The transcript must reflect what actually happened so that anyone can come back to it, possibly years later, follow what was happening and what was being discussed at any given point without having had to be present. Instead of saying,
the sample came from there,
it has to be described in terms such as,
in photo graph 123, the sample was taken from the area shown in the top right hand corner, which was approximately five centimetres from the left hand edge of the blanket.

I gave evidence in a case once where I was holding a photograph of a piece of carpet. The barrister said to me: ‘Could you just describe what we see in the photo graph marked,
Piece of carpet.
What is that a photo graph of?'

It sounds like a ridiculous question because the court has just been told I took a photo graph of a piece of carpet, they've been shown the piece of carpet (I'm holding it), here's the photo graph of the piece of carpet that has been referred to as
Piece of carpet
and now I'm being asked to say what the photo's about.

So I said, ‘A piece of carpet.' I knew I shouldn't just leave it at that because it sounded cheeky, so I left it a beat and carried on, but even though I wasn't looking at the jury, I could see a few grins out of the corner of my eye.

It's not just me, though. There are other examples, including
this one, where an expert was giving evidence in relation to a drug case.

I even heard a lawyer ask a witness, ‘So, how old is your 16-year-old daughter?' The witness's face was a picture — she clearly thought the lawyer had lost the plot. This was, of course, a result of the lawyer following one of the basic rules of questioning witnesses during a trial: never ask a question to which you do not know the answer. He knew the answer but unfortunately it just so happened to come out of his mouth in the form of a ridiculous question.

Trials are very well organised events. Particularly at the level of serious criminal charges, they are meticulously planned by both sides, prosecution and defence (civil cases are often even more complicated). The lawyer is often asking one thing but their mind has already skipped ahead five minutes in time so their mouth can be on automatic and they don't always hear the bloopers. An example:

Had the lawyer asking the question been listening to the answer, he would have realised his mistake. Unfortunately, his brain had skipped forward and he hadn't heard the answer
and didn't register the amused response to his question or the bemused response when he didn't notice what was happening.

Some times, people don't realise that what's in their witness statement is total cobblers. In drink-driving cases people are so desperate to keep hold of their driving licences they'll say anything. If they even looked at what they were saying, they might realise what they're asking the court to believe.

In most of the drink-drive cases with which I was involved in England I would have to point out, very politely, that some things might not seem very believable and that the magistrates might take a dim view. If a defendant pleads guilty early on, before the case gets to trial, they can often receive a reduction of as much as a third off their sentence. Some people would, however, insist on going the whole hog and, in my humble opinion, were never going to have a snowball's chance of being found not guilty. Here is an extract from a defendant's witness statement. He was charged with drink driving but his defence was that he had to drive because it was an emergency:
I was in an emergency situation. I needed to get her home, and as my friend commenced her fit, I consumed a third pint of lager.
If it was that much of an emergency, call an ambulance! I'm sure his friend would much rather know that if she has another fit, those around her will dive for their mobile phones, not think,
Shit, I've got a full pint — that's a bloody waste. I'll neck it before I help her.

 

Of course there are legal definitions about what is or is not ‘evidence'; there are laws of evidence and law students are specifically taught about evidence law. I don't propose to discuss the technicalities — there are plenty of legal text books to do that for me. Evidence to non-lawyers, though, is a different
thing entirely and confusion often occurs when people get mixed up about what is classed as evidence in court. Someone with whom I used to work in England once recounted a story to me about one of his first experiences in court. He'd used the word ‘evidence' in his report when talking about what he'd deduced after examining whatever it was in the laboratory. The judge leaned towards him and said, ‘Young man, it is not for you to tell the court what is evidence. Evidence is what I allow to be heard by the jury in my court room. Until I allow it to be heard and accepted in my court room, what you have in your report are scientific findings and nothing more.' That told him.

There are all kinds of legal arguments that can be tossed about before someone is allowed to get into the witness box and give evidence, be they an expert witness or a bystander who saw a car drive off from a shooting. Even then, what a witness has to say needs to be judged to have reached certain standards before the witness can get into the witness box. Each jurisdiction has its own standards that the witness testimony must reach before it can be heard and
accepted
in open court. New Zealand's recent implementation of hearsay rules has been interesting — even though a witness may have very good information to tell the court about what they heard someone say, if it doesn't accord with the hearsay rules, it's not allowed to be presented as part of the case.

The moral of the story is: don't presume that what you've written will be accepted as evidence. It's only evidence if it's accepted as such by the judge or, as often referred to in legalistic terms, the trier of fact. A scientist's findings are exactly that — their findings. Oh, and never upset the judge — not a wise move, whichever way you look at it.