The role of a medical expert witness needs to be strictly defined and carefully controlled during legal proceedings and physicians need to be aware of their role, states an analysis of the Goudge Inquiry into pediatric forensic pathology published in CMAJ (Canadian Medical Association Journal).

The Inquiry into Pediatric Forensic Pathology by Justice Stephen Goudge looked into the flawed expert testimony of Ontario pathologist Dr. Charles Smith which has been linked to several miscarriages of justice, including the wrongful conviction of Sherry Sherret-Robinson that was overturned by the Ontario Court of Appeal in December 2009.

“Several commentators have suggested that, when the adversarial system is working as it should, our courts are a robust forum for highlighting matters of scientific controversy,” write the authors. “Goudge’s report is a tragic narrative of the mischief that results when the system is not functioning effectively.”

In the CMAJ analysis, the Honourable Frank Iacobucci and coauthor Graeme Hamilton describe 4 reasons to carefully control the use of expert witnesses, a 4-part test for determining legal admissibility of expert evidence and summarize Justice Goudge’s concerns over how pathologists interact with the Canadian legal system. They also include recommendations from the Goudge Inquiry on the role of the expert medical witness.

They conclude that for the legal system to function well, each participant must do their part. “Expert witnesses must give fair, objective and impartial testimony, irrespective of whether they have been retained by a party or appointed by the court. They must also be sensitive to the vulnerabilities of the system and do their utmost to present evidence in a manner than ensures its intelligibility.”

From Scottsdale-DUI-Lawyer Blog

When it comes to court time, the prosecution (police or sheriff’s department) will often use evidence from their key witness in the crime lab. The expert that provides evidence of toxicology is the crime lab’s blood-alcohol expert. These key witnesses, often called forensic toxicologists, will often go to the stand and describe what amount of alcohol was found in the blood, what is done to find this level while describing the steps in laymen’s terms. They are probably the singe most important witness, because they back up the evidence of blood alcohol levels — something that a breathalyzer may not do 100 percent of the time.

The honesty of all those in the chain of evidence gathering at the police department is important to the case at hand, but recently a San Diego DUI lawyer found the toxicologist’s testimony odd since most of his account seem to come from a paper he was referring to during questioning.

Afterwards, San Diego attorney Cole Casey approached the toxicologist and asked him what he was reading during the testimony. To his surprise the witness showed him the paper he was referencing and found it to be a strict instruction list on how to answer. The instructions explained to the witness on what to say verbatim, not what their experience was or anything that they knew unique to the case.

If fact some of the questions where basically saying to play dumb and state that “it’s impossible to remember each blood draw.” This was the prosecutions method of putting away DUI cases without a matter of a doubt simply to make their toxicologist follow along a set of guidelines on what to do rather than what they know happened during testing — a true conflict and a pretty blatant case of dishonesty.

Another ‘Expert Witness’ Gone Wrong

Another toxicologist was found, not to have been giving testimony with scripted lines, but scripting a false resume instead. During an employee record audit at the San Diego Sheriff Department’s Crime lab, it was found that an often used key witness, Raymond Cole, had falsified his resume. It was found that Cole’s resume states that instead of graduating from Berkeley in pre-med, he had actually graduated with a bachelor’s in political science.

Unfortunately Cole had nearly 30 years working in the crime lab with many cases where he was used at the witness stand. Notices of the allegedly perjured testimony went out to the San Diego DUI lawyers that used him.

From: DUIAttorney.com

Opinion – The continuing battle between prosecutors and defense attorneys in DUI trials is similar in many ways to the old arms race between the United States and the old Soviet Union. As one side develops a new “attack” strategy, the other side develops a new “defense”.

Sometimes the government wins, sometimes the defense wins.

Each side gains a better understanding of the legal and scientific aspects of DUI cases. The end result is that the government is encouraged to do a better job, investigating, documenting, and prosecuting DUI cases. As the government does their job better, the likelihood of a guilty person “getting off” of a DUI charge lowers significantly.

In the few years I’ve been available to the defense community as an independent criminalist, I’ve seen improvement in the way officers investigate DUI cases, document DUI investigations, crime labs carry out analysis, and prosecutor’s conduct cases.

After a seminar I gave on blood alcohol analysis, I was approached by an employee of the Arizona Department of Public Safety Crime Lab. They told me I made some valid points in my presentation.

Within a few months that lab had instituted new changes, to improve the quality of their analysis.

Another laboratory has purchased new equipment, when old equipment couldn’t adequately be shown to be contaminant free.

One law enforcement agency now properly handles blood draw samples, to help ensure the integrity of the evidence.

Officers have approached me during trial breaks to clarify points I made during testimony about misunderstandings the officer had about field sobriety testing.

Common terms incorrectly used during testimony as being phased out for more accurate terms.

It’s interesting to note that my work as an independent criminalist has had a greater effect in improving the quality of DUI investigation in Arizona, than when I worked for the government.

About the author: Erik Brown is a forensic scientist who frequently testifies and consults about DUI blood and breath testing, field sobriety testing and gives expert opinions in court. He is the author of the forensics blog, Benchnotes.

By Richard Meehan
For The Norwich Bulletin

Trials often require expert testimony to establish facts that only one possessing certain training and experience can describe. Most often, experts are highly credentialed medical doctors or have doctorate degrees. An expert, however, can be anyone possessing knowledge in an area beyond that of the average juror. The classic comic example is mechanic/hairdresser/girlfriend, Mona LIsa Vito, in the movie “My Cousin Vinny.” A knowledgeable car mechanic can qualify as an expert in automotives issues.

Once a proper foundation is developed, the expert may give an opinion based upon the facts of the case and a reasonable degree of certainty. An expert may not testify to possibilities, nor engage in speculation and conjecture.

Jurors may accept or reject part or all of an expert’s opinion. The trial lawyer’s challenge is to educate the jury on the expert’s background and basis of the opinions offered.

Trying complex cases over three decades, I’ve had a legion of experts on the witness stand ranging from the world of the Miss Vitos’ to Yale and Harvard professors. We start with a recitation of the expert’s education and training, professional associations, honors, awards, publications or teaching experience.

Next, a review of the evidence through a hypothetical question that asks the expert to assume certain facts. Often those facts are disputed, which later presents a platform for opposing counsel to challenge the opinion on cross-examination.

With the exception of standard of care experts in malpractice cases, experts are not permitted to give opinions on the ultimate fact in issue. That is viewed as invading the fact-finding province of the jury.

Recently, I had the unique experience of testifying as an expert in a criminal trial practice. The issue was whether a defense lawyer failed to provide a convicted client effective assistance of counsel as required by the Sixth Amendment. My opinion was that he had not.

Read the entire article here.