Expert Witness (5 page)

Some times, solicitors have to admit that their clients might have been a bit naughty. One solicitor wrote to advise that his client admitted that, at some point, he was obstructive to the police and there was an altercation between the client and the police officers. The general tone of the letter was some thing like:
The defendant was eventually conveyed to the police station, having first attended hospital to receive treatment for a head injury.
There was no indication in the letter of how the defendant acquired the head injury but the police officer's statement was quite telling.
The defendant began to remove his watch to allow me to apply the handcuffs. He placed his watch down on a kitchen counter and then pulled out a carving knife from the kitchen drawer and raised it above his head in a threatening manner.
I have to ask if there is any other way to hold a knife above your head in front of two police officers without it looking threatening. It seems that the defendant was eventually disarmed with a few blasts of pepper spray and a clonk on the head with a police-issue baton.

Another case involved a defendant who denied consuming excessive quantities of alcohol in a drink-driving case. The defendant said that a man she didn't know bought her four drinks of lemonade and that he must have spiked her drinks heavily with vodka, although she didn't notice at the time. She agreed her car may have been swerving but this was due to thick fog. Did she mean the fog was driving her car?

Yet another defendant proffered that although she was six times over the legal breath alcohol level and had been found slumped over the steering wheel of her car surrounded by several empty vodka bottles, surely the breath test result must have been wrong.

Then there was the man who was facing an assault charge.
I accept presence and participation in the altercation. The reason the forensic evidence suggests I was there is because I was there and involved in the incident.
As far as it goes, that has to be about as helpful as a defendant's statement can get.

Some times, the statements are just not particularly clear. For example:
I noted that he had matted blood about his hair on all sides. He was bald.

Whether a case requires a formal written statement, a report or a brief letter, it's critical to convey on paper the things I consider to be important in any given case. This is my only chance to transfer my opinion about this case to the person who instructed me. Experience, and many lawyers, have also taught me that a lot of people just read the last section of any report, usually the one headed Summary/Conclusions.

Just as you were taught at junior school when you were seven, it's very important to write a story with a beginning, middle and an end. Take it a step further to when you were
about 13 and writing up your first proper science experiments. The voice of your teacher echoing out of the classroom as you all charge out, like Pamplona bulls, after the bell rings on Friday afternoon: ‘Everyone remember to write Introduction, Methods, Results and Conclusions.' Skip forward to your last year before leaving school — exams. The one thing every teacher says a million times is ANSWER THE QUESTION. You won't get marks for waffle and padding. A whole wash of Teachers Past has just swum through my brain, all repeating the same thing …

Science writing at the forensic level is no different. Reports should be written so they can be read in isolation and the reader can follow what's happening. It's no use yabbering on about photo graph 73 if no one else can see it.

Every report, statement, letter or document that leaves the office must be prepared with the thought that it might be used against you at some point — not necessarily by your instructing party but by anyone to whom your communication has been provided. Every telephone conversation, email or text you send is available for repeat and, possibly, inaccurate repetition, probably in your absence. Never mind that in the United Kingdom, New Zealand, Australia and other places the rights the police read to the suspect cum defendant say some thing along the lines of:
You have the right to remain silent. Anything you do or say may be used in evidence.
What should happen is that when you train as an expert witness you should have your
lack
of rights read to you:
Anything you write, say or do as an expert witness may and probably will be used against you, probably when you're in the witness box and probably when you least expect it.
If you write a report or statement or letter or email, whatever,
if it doesn't feel right, don't send it. Better it be a day late than chase you around the appeal courts and haunt your nightmares for the next 10 years.

If you end up having to read your report out in court, which is usually tediously boring for all concerned, it has to be understandable by a layperson, as well as convey all the important scientific points you want to make. Regardless of who's giving evidence, it's not fun watching the eyes of the jury glaze over … who's going to be first to nod off? That bloke in the corner on the back row? Surely not the one in the front row — everyone can see him?

I think one of the main things I've learnt over the years is that my role as a forensic scientist is as a science communicator. It's probably the single biggest difference between academic scientists and forensic scientists. For academics, using as many technical phrases as possible in a scientific journal is very important because it demonstrates not only an under standing of the academic aspects of their field of expertise, it means it takes fewer words to write a description, which is important when only 250 words are available for an abstract. Academics are usually sparring with their peers and fighting for funding. Forensic scientists have a different audience — we just try to explain what is some times a complicated scientific issue as simply as possible. Some are better at it than others.

T
his is the big misconception so I'm going to deal with this face on, at the start, just to get it out of the way and cleared up. What is forensic science? That's easy — it's what you see on
CSI
, isn't it? It's just like it is on
Bones
and
NCIS
(or ‘knickers' as we say in our house) and all those other American crime TV series.

If only it were that simple and, let's face it, glamorous. I'd love to have a laboratory like theirs, with all that moody lighting and shiny shelving. In practice, the shelves they have on
CSI: Las Vegas
would be a contamination nightmare — all those nooks and crannies. Yes, I know, you've probably never even noticed the shelves in Grissom's lab — have a look when the next re-runs are on. They seem to work in a perpetual
state of semi-darkness, which entailed Grissom getting a torch out in a mortuary on one occasion because he and the pathologist couldn't see what they were doing. You'd think they'd go for the main light or have one of those torches they used to have on
The X-Files
that could light up half a state at the flick of a switch.

I'd love to have the budget they have for their work clothes as well. Have you seen the way they swank around crime scenes, not a face mask or coverall suit in sight? Astounding. Designer gear, high-heeled boots, designer sunglasses. Their cars are pretty cool too — great big four-wheel-drive things or flash saloons with comfy seats. Not the sorts of vehicles that have had stinky body parts packed in cool boxes in the boot, smelly overalls plonked in the back because some human putrefaction juice got onto them by mistake or wellies/gum-boots (depending on your country of origin) for wearing at clandestine methamphetamine laboratories. In my experience, attendance at a crime scene generally involves dressing head to foot in a giant plastic bag, wearing surgical gloves and a face mask. Some times, you have to wear gloves for so long your skin looks as if you've been in the bath for several hours. If only five hours processing pollen samples in the heat of summer in a laboratory were as pleasurable as a lie in the bath with a good book: same skin appearance, different way of achieving it.

Grissom et al. also have a terribly inappropriate habit of clambering through a crime scene, finding a piece of ‘something' seemingly innocuous (but later found to be crucial) and picking it up from amid the debris, some times with a pen but some times just with fingers —
before
said item has
been photographed
in situ
. Rule number 1 at a crime scene: Observe and record. DO NOT TOUCH. Once the item has been moved, even accidentally, its evidential value is shattered, potentially rendering any results obtained from it meaningless.

I can't ever recall
CSI
agents putting items into evidence bags either. Where's the officer in charge of exhibits who's receiving all these items from everyone at the scene, logging the details on a datasheet so everyone knows what is in the item, the evidence bag's unique number, who found it, where, what time and date and what happened to it after it was collected? A crime scene should be a controlled environment. It's simply not appropriate for 16 people to wander through a crime scene before the videoing, photography and all the items of interest have been recorded.

Once identified as a crime scene (and that includes bodies as well as the places they were found), the crime scene should be controlled and everyone entering and leaving should be monitored and their arrival/departure recorded.

As I under stand it, there was good crime scene control in 1996, in a well-known New Zealand case, the Tania Furlan murder. I remember that day clear as a bell because I was with Tania Furlan's husband when he received the call at work to say she had been attacked and his baby daughter had been taken.

In the Furlan case, because the police knew who had entered and left the scene in the time after Tania had been found and the scene had been controlled, they were able to examine the soles of the footwear of all those people who had come and gone. The sole patterns were compared with sole patterns
found in the hallway of the house and every set of sole patterns could be attributed to a legitimate person's shoes — except one, which told the police they probably belonged to a
person of interest
. For those who aren't familiar with the case, the baby was later found safe and well but abandoned outside a church in Auckland. No one was convicted of Tania's murder because the suspect committed suicide while on remand in Auckland's Mt Eden Prison before the trial began — just one aspect of a controversial case.

As mentioned previously, crime scenes should be recorded and documented (photographs, plans, maps, notes, diagrams, photographs, videos) before items are appropriately moved and removed. After that, a long chain of events occurs, every step of which should be recorded. The idea is that anyone can come along at a later date and see exactly what happened to which item at what time/date and what that meant for the eventual outcome of the case. I've worked on a couple of thousand of cases and being able to follow a particular item from crime scene to police station to laboratory via the paper trail is absolutely vital. If I can't track it, how can anyone else know what happened to it? Remember that some of these cases take years to be resolved.

The David Bain case is an obvious example. That started way back in 1994 and there were significant difficulties in court when people were asked what had happened to items in the interim — after all, who can accurately remember what happened to an item they found or handled all the way back then if they haven't written it down?

So strong is the influence of TV that the forensic science community recognises what is referred to as the
CSI effect
.
Basically, people, including lawyers, expect science to answer crimes in the way it does on
CSI
. Perhaps not in an hour (including commercial breaks) but certainly far more quickly than is realistic and also far more neatly than is actually possible.
CSI
and similar programmes generally end very neatly, with no loose ends, whereas in reality there are often unexplained things that remain that way, even where people plead guilty.

I've been working in forensic science since 1998 and it is just so far from
CSI
that I feel compelled to shout at the TV every time I watch an episode of
CSI
(all locations),
Bones, NCIS
and, some times,
The Bill
. So why do I watch them? Because I like 'em. Lawyers shout at
Law & Order, SVU
and
Coronation Street
, geologists shout at
Dante's Peak, Jurassic Park
and
One Million Years B.C.
, medics shout at
Holby City
,
Casualty, Shortland Street
and, I assume,
ER
(because it can't be perfect, surely).

What amazes me is not that the TV viewing public is taken in by these programmes, because I think this surely must only apply to a relatively small number of individuals, but that the
CSI
effect didn't occur earlier. There's never been any suggestion of a
Murder She Wrote
effect or a
Poirot
effect or even a
Magnum, P.I.
effect. Sadly, though, I must report that I have experienced the
CSI
effect, and not just from the general public, but also from lawyers.

Here is an extract from IrishTimes.com (19 August 2009, article by Bernice Harrison):

Indeed.

I recall being asked by instructing defence counsel at court in England a few years ago if my job was like
CSI
. To be honest, I was a bit surprised to hear him ask this question (and he was serious), given that I was attending some dingy magistrates' court for a recidivist drink driver and also given that he was a criminal law specialist. I shouldn't be surprised because it's still by far the most commonly asked question I hear. I usually just answer, ‘Yes, but with less lipstick, fewer dead bodies and more paper work …'

I gave a lecture recently about forensic science in the United Kingdom and what a great place it is to get work experience, which is very true. However, it's hard not to be negative about a career in forensic science because there have been so many redundancies (800 in England and Wales) and police budgets are being cut in both New Zealand and the United Kingdom. In my mind, based on my experience, I believe this is inevitably setting someone up for a miscarriage of justice. Not long afterwards, I read an article in the Guardian Online which confirmed my worst fears. It reported that the United Kingdom Forensic Science Service currently has 1300 scientists, and went on to say that the United Kingdom's largest private provider, LGC Forensics, employs 500 people. In 1990 there were just two forensic science degree courses in the United Kingdom. In 2008, 1667 students embarked on a total of 285 such courses. This massive increase in numbers is largely attributed to the
CSI
effect. I like the final sentence in the article:
in order to ensure there are enough jobs to go round, more than half of them will have to retrain as serial killers.
And what better people to know how to cover their tracks than forensic scientists?

Real-life research has been undertaken to assess the impact of effects of programmes like
CSI, Bones
and
Law & Order
. These programmes do affect people's perceptions. Maybe it's because they want to believe real life can be that exciting. Perhaps it's also a security thing
—
if some thing bad happened in their lives, science can rush to the rescue and solve the crime. I've had it put to me that even if the cases on
CSI
aren't always believable, the methods applied surely must be correct. Isn't
it right that if a footwear mark is found at a crime scene, the police can use the sole pattern to identify the brand, barcode number, number of pairs made, location of manufacture and date of import? In a word, no.

Few cases involve more than one or two types of science. Many cases, even criminal cases, have no scientific content whatsoever. Most of the cases in which I have been involved usually had one evidence type, some times two
—
three or more can get very complicated. Multi-evidence cases more often than not involve DNA plus some thing else
—
most prosecutors have wisely decided never to bring a prosecution solely on DNA findings. It's interesting that in some US states, when juries are being selected, potential jurors are asked about what they watch on TV.

There are two other things to consider regarding the
CSI
effect. The first is speed and turnaround times. Not only is the expectation that science will provide full and complete answers, but also that it can be done quickly and on every occasion. Unfortunately, it's not like
CSI
where a sample can be placed into a machine and an answer pops out after five minutes. Some analyses take what appear to be a long time. Processing of samples some times only takes a few hours but consideration has to be given not just to the results but also the interpretation. Thinking time has to be built into the reporting system. What seems like an unsolvable question today might easily be answered in two days' time, probably at two in the morning when one is half asleep.

The other factor is that of case limitations. Science is evolving at a rapid pace and, in the long run, will probably achieve anything people want
—
it's the age-old story that if
the human mind can imagine it, it will probably eventuate, even if it's in 200 years' time. However, in legal casework it is important to remember that the limitations of each case are the main restricting factors affecting the application of science, not the science itself. Just because DNA didn't work in a particular case doesn't mean it won't work next time; it just means that for this particular case insufficient DNA was present for a profile to be obtained. Even if a DNA profile was obtained from a crime scene, it doesn't necessarily follow that the owner of the DNA perpetrated the crime.