A new "expert" that we have to deal with

[Kathleen Birnbaum]

Shame on this guy for his falsely placed cocky ego on something he obviously has absolutely no valid training and experience in and no idea what he is talking about, but what I find even more shameful is anyone who would actually use him!

[Gerald Clough]

Well, ego is some of it. Someone with some experience in some more or less related or similar field learns a little and thinks it looks pretty straightforward. Relatively few attorneys know the difference. Again, it generally takes both sides being short of knowledge to let it be admitted. And you get a bit more perspective when you remember that attorneys also deal with many civil cases in which various kinds of experts are recruited and in which the standards aren't challenged and tested nearly as much as in criminal cases. So they're not real tuned up on very critical review of expertise. Most of the experts they've used may well have been things like a local mechanic as an expert on some aspect of engine repair, or a paramedic testifying on the proper use of the ambulance stretcher that fell over, or a maintenance man on the usual and customary procedures that are part of his job. And often the most appropriate expert is exactly a practitioner with standard credentials and no extraordinary training, because they're looking for the standard practice. They're all experts, but they're not forensic specialists. And then there are forensic experts who are presenting something they believe is diagnostic but isn't supported by a substantial body of research.

A lot of that sort of stuff doesn't get tested, because the state doesn't get to appeal an acquittal, and when these experts pop up for the first time in criminal appeals, the issue is often where the greater weight of evidence lies or whether anything would have changed at trial if that expert had been heard and whether the defense counsel was deficient for not finding that expert for trial, rather than whether they qualify as an expert. And many expert fields don't have very strong distinctions between common practitioners and forensic experts. If you hold the professional credentials to practice in the field in general, you're pretty much automatically going to be accepted as an expert. When the issue will be decided by a judge or panel, they will, of course, hear argument on how credible an expert should be, but they don't often reject out of hand hearing from one, having faith in their abilities to judge.

How much forensic work one gets to do it often a matter of simply how much you've done before, how much you put yourself forward for the work, and the known trends in your conclusions. And in some of those fields, the expert really becomes kind of an advocate for whichever side hired them. It's not that blatant or sinister. It's just that there are experts that everyone knows have a particularly liberal or particularly conservative view when asked to evaluate for some condition, and neither side is dumb enough to hire someone they know is going to lean the wrong way. At the extreme end, there are experts of whom it's known that they will always produce a conclusion favorable to anyone in a particular circumstance that they believe they should not be in. It just that it's most often not so clean and neat as fingerprint evidence. And across all sorts of lawsuits and the whole range of fields, being wrong rarely harms an expert in the way that we dread making an error. The nature of most expert contests is that one or the other must be mistaken, and they rarely are in a position to (or or willing to) concede their error or even be called down for it. You can't even tell who was really wrong. The court makes their decision, and that's that.

[L.J.Steele]

[quote="Gerald Clough"]A lot of that sort of stuff doesn't get tested, because the state doesn't get to appeal an acquittal, and when these experts pop up for the first time in criminal appeals, the issue is often where the greater weight of evidence lies or whether anything would have changed at trial if that expert had been heard and whether the defense counsel was deficient for not finding that expert for trial, rather than whether they qualify as an expert.[\quote]

This can also come up if the defendant loses, and post-conviction counsel alleges that trial counsel was ineffective for retaining this particular expert. These are hard claims to win, and it depends on the post-conviction attorney realizing that the defense expert was not qualified.

There are a few other safeguards -- in an indigent case, the expert is paid for either by the courts or by the public defender's office. If a motion for funds goes to the courts, and is not ex parte (filed by one side without notice to the other), then an alert prosecutor can challenge the expert's credentials. This is rare, but I think this tactic has been tried against Cole, the Habers, and others. Personally, I don't agree with it unless there's an obvious problem with the expert and even if an expert does not testify in court, they may be very helpful in preparing the attorney for motions and cross of the prosecution experts.

If the expert is paid through the public defender's office or its counterpart, then there may be a contact person there who one could raise concerns with. Again, I would not recommend this unless there's an obvious problem as the complaint may create a circle-the-wagons reflex if the concern is not very obvious and diplomaticaly worded.

[Gerald Clough]

I guess it would be hard to complain, except in an kind of abstract way, that an attorney was ineffective for recruiting an expert who floated some BS and got away with it. If prosecutors were universally well up on the state of forensics, maybe we'd see more IAC claims when they outed the bogus expert during the trial. (Ive rarely been able to tell when someone has just mistakenly bought a questionable expert's credentials and when they know they're questionable and just figure it will be accepted by the court.)

With Cole, it was probably easier for the prosecution. It was in fingerprint forensics where we are so picky about expertise, and I suspect their own expert pointed out the problems with him and the legal history or they just found it easily, since it's not hard to discover his rejections.

And, yeah. When you start a war over expert qualifications, you can open a bag of snakes that neither side wants running loose and taking things to the second level of experts on experts. Tends to put the jury to sleep when you want them attending to your strategic theories.

[L.J.Steele]

I guess it would be hard to complain, except in an kind of abstract way, that an attorney was ineffective for recruiting an expert who floated some BS and got away with it. If prosecutors were universally well up on the state of forensics, maybe we'd see more IAC claims when they outed the bogus expert during the trial.

Right. If the case implodes because a badly qualified expert testified and got torn to shreds by the prosecutor, that's a potential IAC problem. Worse if the post-conviction attorney can bring in a qualified expert who can show that, done properly, there was a problem with the evidence. Absent that, there's a harmless error problem.

With Cole, it was probably easier for the prosecution. It was in fingerprint forensics where we are so picky about expertise, and I suspect their own expert pointed out the problems with him and the legal history or they just found it easily, since it's not hard to discover his rejections.

Different problem. An expert or field of expertise may be wholly inadmissible at trial, but still quite knowledgeable and able to prepare an attorney to do a proper investigation, file the right motions, do a good cross-exam, do a good closing, and ask for the right jury instructions. I'm in the middle of this dispute in CT regarding IAC for failing to get educated on eyewitness ID. CT is hostile to ID experts (at least at present), but a good expert could have told trial counsel what was wrong with a badly flawed ID procedure, how to set up the challenge and support it with the then-current research, etc., even if he or she never set foot in the courtroom.

I suppose that if an expert is so bad that he or she shouldn't even be advising the defense, then prosecution could object to a motion for funds, but again opens big old bags of snakes so should be saved for the most eggregious cases.

[Gerald Clough]

I'm in the middle of this dispute in CT regarding IAC for failing to get educated on eyewitness ID. CT is hostile to ID experts (at least at present), but a good expert could have told trial counsel what was wrong with a badly flawed ID procedure, how to set up the challenge and support it with the then-current research, etc., even if he or she never set foot in the courtroom.

Eyewitness identification is probably one of the easiest forensic area to find both research and case law on and for the lay attorney to understand. Not always easy to make solid connections between research products and real procedures, but a lot of research pretty closely models actual identification processes. It's such a goofy legal area, with the federal circuits split all over the place on the issue of admitting experts to address the general nature of eyewitness identification. Last time I looked, the 2nd circuit said corroborative evidence of guilt was not to be considered in deciding if the eyewitness ID was reliable.

If it's federal yet or might get federal, might look at:

Bell v. Miller, (2nd Cir. 2007).  Victim of an armed robbery was shot in the thigh with a shotgun and was heavily sedated for the next eleven days and suffered lapses of memory and dizziness. Victim gave officers a brief description on the scene but gave no indication of knowing the actor. In the hospital, the victim identified the actor by name as a former neighbor. Bell’s counsel at trial asked no questions about medications and no questions of physicians about the effect of medications on memory. Bell and the victim had a poor relationship, and Bell had multiple alibi witnesses.

“Our disposition of this appeal does not announce a per se rule requiring a defense counsel to consult with a medical expert in order to cast doubt on a key prosecution witness. But where the only evidence identifying a criminal defendant as the perpetrator is the testimony of a single witness, and where the memory of that witness is obviously impacted by medical trauma and prolonged impairment of consciousness, and where the all-important identification is unaccountably altered after the administration of medical drugs, the failure of defense counsel to consider consulting an expert to ascertain the possible effects of trauma and pharmaceuticals on the memory of the witness is constitutionally ineffective.”

For those who don't closely follow the status of eyewitness identification, one legal issue (aside from whether an attorney should call an expert) is whether or not a trial court should allow an expert to testify to the nature or eyewitness identification, as opposed to testimony on the actual identification event presented by the state. Some circuits hold that it's entirely discretionary. Some hold that it's error to exclude a qualified expert. At least one holds that it's only error to exclude if there's not a body of other evidence establishing the actor's identity. (I don't quite get that last one at all.) This has only arisen as an issue since the publication of a body of research. Prior to that, the experts offered were trying to testify from the direction of much more general research on human perception and memory. But with active research now ongoing in places like the UTEP Eyewitness lab, the general nature experts are starting to get in. It's of interest to the fingerprint identification field because research is now ongoing in the field that may eventually be offered as to the general nature of fingerprint identification that won't be attackable as too far removed to the identification process, and a lot may depend on which federal circuit is hearing an appeal where such an expert was excluded.