Forensics

by Val McDermid

  In one of Leo’s cases, an articulated lorry had overturned on a roundabout, fully laden with human sewage which spewed out all over the road. The driver claimed he had tipped because the road had an ‘adverse camber’, meaning it sloped away from the roundabout, and because another driver had caused him to swerve by driving badly. An expert for the prosecution had used complicated physics to analyse readings from the lorry’s tachograph – a device which automatically records information relating to speed and distance travelled – to try and prove that the other driver had been driving at a reasonable speed. She backed up her calculations with time-lapsed CCTV footage from a camera that pointed at the roundabout. By the time she had finished answering the prosecution lawyer’s questions, the jury was impressed. Then it was Leo’s turn to talk to her. ‘[U]nder cross-examination, her cogent testimony crumbled. She had failed to take into account that the CCTV camera was not at ninety degrees to the lorry, which threw her speed measurements out. By the end she wasn’t sure of anything.’ Because he had done his homework, Leo was able to draw out an important variable which the prosecution expert had not thought about in the quiet of her office. The other driver was duly acquitted of dangerous driving.

  If they’re to stand a chance, experts need to show that they deserve the title. One pathologist has noticed lawyers getting keener to catch him out over the years, and thinks that perhaps it has gone too far. ‘As I look back over my career there used to be more understanding that an expert witness was there to give you the benefit of the whole of their knowledge, but now we have to reference things. You can no longer say, “Well, look, I’ve seen twenty cases like this and I think it follows,” because the answer is, “Oh, have you published this? Where is your peer-review journal article? You might have got it wrong twenty times mightn’t you?” If I say, “I’ve been doing this job for thirty years and I’ve seen 25,000 examinations and I’ve not seen this before,” they’ll say, “That’s just a random event.”’

  All of the experts I have talked to for this book are seasoned courtroom witnesses. Val Tomlinson has lost count of the number of times she has appeared in court in her thirty-year career – ‘hundreds, probably. It can be very intimidating. I remember one case where a lad had died after being been kicked by a number of youths. And another lad had quite a bit of blood in various areas on his trainers but it was difficult to see because it was mixed with cider and was very bubbly. And obviously one of the inferences barristers like to make is that, “There is no blood on my client, and therefore he didn’t do it.” So I was asked about these particular trainers and I gave my discourse about them being bloodstained. As I walked down the steps from the witness box I was feeling fine. Then the barrister said to me, “Oh, Ms Tomlinson, when you were talking about those trainers I meant to ask you to show them to the jury but I didn’t want to interrupt. Would you mind just showing them now?” So the trainers were produced and I walked over to the jury and stood in front of them. I started saying, “You can’t see the blood very well, but it’s around here,” and the barrister behind me erupted. I had finished giving my evidence, and been dismissed from the court. I shouldn’t have even been speaking to the jury. There was wafting of gowns going on behind me and I looked at the judge and he said, “Just show them, Ms Tomlinson.” So I stood there in front of the jury and I remember raising my eyebrows a little bit, wondering what was going on behind me. When I got outside I sat in the car and I just thought, what on earth happened in there? The display that went on behind me was just ridiculous. Clearly the barrister wanted me to stand there with all the show, and the jury to go, “Well, we can’t see anything.”’

  For forensic entomologist Martin Hall, cross-examination is ‘always a nervous time. The heart beats a bit quicker. Your professional opinion is called into question … You are under intense scrutiny.’ What fingerprint expert Catherine Tweedy hates most is ‘not being asked the correct questions and not being able to discuss the evidence. You have to sit there and wait for the question and you are not allowed to expand on things. You can at times but a lot of the time you can’t. And obviously the opposition try and stop you doing that at every corner because they don’t want you to get your point across … They may entirely miss the point, or simply ignore it even when you know that it’s extremely relevant. You don’t have control over what is shown to the jury.’

  It took our pathologist time to see the adversarial courtroom for what it really was. ‘I have only just really twigged, when you are giving evidence in court the counsel for the prosecution and the counsel for the defence are involved in legal advocacy, they are not seeking after truth in any way, shape or form. You are sworn to tell the truth, the whole truth and nothing but the truth. Their role is to form an argument and if a bit of what you say is counter to that argument, they will either attack you for it or simply ignore it.’

  Witnesses can only tell the ‘whole truth’ to the questions that they are asked. If they want to tell a truth more whole than that, they run into trouble. As one scientist says, ‘It’s very difficult as an expert to say, “Excuse me, you have forgotten something.” I have done it a couple of times in trials and the look you get from the judge and the barristers – it’s not “Oh! Well done, old chap, jolly good, we’d forgotten that, damn it!” Instead, the judge says, “Oh well, I suppose we’ll have to look at that then, won’t we?” thinking to himself, “Why is this person in my court causing all this trouble? We were doing really well, everyone was singing from his own hymn sheet, until this imbecile piped up.” Then you get slapped around by everyone for forty-five minutes, wave the white flag and retreat home.’

  Sue Black recognises the courtroom as a potentially ‘very rewarding’ place, but overall she finds it ‘very much the least fun part of the job because it’s not our rules. It’s not our game. It’s the reason why a lot of experts choose to leave the profession because, as you go in, your reputation as an academic is all you have, and it seems at times that part of our adversarial system is a real attempt to rob you of that reputation. It can get very personal. It can get very aggressive. And you will come out of court either still as the world’s expert or the world’s biggest fool, and I’ve been both …

  ‘In a recent case my young colleague stood up to give his evidence and was asked, “What is your relationship with Professor Black?” He said, “She’s my Head of Department.” The defence lawyer replied, “Oh, I think it’s a bit more than that, isn’t it?” He said to me later he could feel his ears getting red because of the way it was said. It was salacious. He told the lawyer, “I don’t know what you mean,” and he replied, “Well, I put it to you that she was your PhD supervisor.” He said, “Yes,” and the lawyer went on, “I put it to you that the professor with her monumental ego looked around her empire and her eyes fell on her favourite little PhD student and she crooked her finger and said, “Do you fancy a day out at the mortuary?” That’s how it went, isn’t it?” And, bless him, he turned around and said, “No, it bloody well isn’t!”

  ‘When it turns to that sort of personal attack, the only disservice that’s done is to justice because experts are going to say, “I’m not going to put up with that.” And I was very close this year to thinking, why would I do this, why would I keep putting myself through this?’

  It’s not just seasoned pros like Sue Black, or diligent young experts like her colleague, who are subject to character assassination. A good lawyer will always look for the weakest link in a case – and sometimes that is the victim. A Canadian defence lawyer once gave his colleagues a savage piece of advice. ‘If you destroy the complainant in a prosecution … you destroy the head. You cut off the head of the Crown’s case, and the case is dead.’

  Fiona Raitt has worked with Rape Crisis, helping victims of rape or sexual assault take their cases to court. For the sake of equality of arms, the defence lawyer of an accused rapist must have access to all of the same medical records of the complainant as the prosecution lawyer, ‘Women are shocked
when they find out,’ explains Fiona. ‘They think, “How did they get that?” The defence lawyer will say, “Is it the case that you were on tablets, let’s see, oh, tranquillisers, about three years ago because you had a bout of mental health issues?” And before you know it they are creating a story of this un-credible person who probably can’t remember very well and who perhaps is still taking tablets. For one reason or another, the most vulnerable witnesses are the ones with the longest medical records, and the defence have a field day. Complainants do have the right to refuse to pass over their records but they often don’t because they haven’t properly grasped the significance of revealing them.’

  In January 2013, Frances Andrade, a violinist, was the complainant in the trial of Michael Brewer, her old music teacher, whom she had accused of rape and indecent assault. On the stand, she was repeatedly called a liar, and she was reduced to tears by the cross-questioning. In a text message to a friend, she wrote that the experience of giving evidence was ‘like being raped all over again’. Less than a week after giving testimony, and before the end of the trial, she killed herself at her home in Guildford, Surrey. Brewer was convicted of five counts of indecent assault.

  When Louise Ellison, Professor of Law at the University of Leeds, set up a mock jury of forty members of the local community, and got actors and barristers to re-enact rape trials in front of them, she found that jurors were influenced by the demeanour of the complainant in court – whether emotional or composed – and by how long after the rape the complainant had reported it. When a judge or an expert explained how varied reactions to an unwanted sexual approach could be, however, the jury was less likely to be put off giving a guilty verdict either because of a calm demeanour or a delay in reporting the rape.

  But the default position for a judge is to keep quiet, explains Fiona. ‘There are cases where judges haven’t intervened even though the witness has been weeping, collapsed in the witness box in tears. They’ve said, “We’ll take a short break, and can somebody get her some water?” They try to do nothing which indicates that they are partial. They have to be very careful. But … I think they could actually protect witnesses a great deal more than they do.’ Judges have to be careful about intervening because if it seems even slightly that they are taking sides, the verdict of the trial can be overturned at the Court of Appeal.

  The idea that jurors should be left to make up their own minds is the cornerstone of any adversarial criminal justice system. But it hasn’t been properly tested. Academics like Fiona Raitt and Louise Ellison are not allowed to do any research on real juries to see what they make of the evidence and argument shown to them. Ellison’s study raises the question, would a judge with experience of working with rape victims be better placed to pass judgment than jurors plucked from the general public?

  Other factors make the courtroom a difficult place for the jury, too. No studies have been done on their ability to balance complex forensic evidence presented to them over a trial that may last several weeks. Fiona even remembers a time when ‘jurors weren’t allowed to take notepads in because they were supposed to watch what was going on at all times’. Some jurors must be left in a state of confusion by the new concepts scientists teach them, by barristers’ attempts to dismantle those concepts, and by statements from other scientists which contradict them. Juries do not always get it right, and they do give the wrong weight to certain evidence. A 2014 study by legal experts and statisticians from Michigan and Pennsylvania found that 4.1 per cent of prisoners sentenced to death in America were innocent.

  Some people find the process of cross-examination so unhelpful that they would like to do away with it altogether. As opposed to the adversarial system used in Britain and America, many countries, like France and Italy, use a combination of jury trials and the inquisitorial system in which, rather than lawyers presenting opposing sides of the argument, a judge investigates the facts of a case. The judge questions witnesses and the accused (or their lawyer) before the trial and only if she finds enough evidence of guilt does she call for a trial. At that point she hands over all the evidence she has gathered to the prosecution and defence lawyers. At the trial she may question witnesses again, to clarify what they said in their pre-trial testimony. The prosecution and defence lawyers are not allowed to cross-examine witnesses, but they are allowed to present the jury with a summary of their views.

  There are benefits and disadvantages to both systems. Trial by jury has its roots in ancient Greece and Rome, and began in England in 1219. As their powers increased, the jury came to be seen as a pillar of society: a group of your equals could condemn you to jail but a wigged member of the establishment could not. By the eighteenth century the law recognised that juries were there to limit the state’s ability to lock up the people it didn’t like.

  Doing away with juries has been tried before in the Diplock Courts in Northern Ireland, set up in 1973 during the Troubles to stop the harassment of jurors. Some people think that the Diplock judges sitting in isolation got it right more than they got it wrong, and more often than juries got it right. And the Diplock model is, in Fiona’s words, ‘quicker, much quicker’ – which is important when you think about the thousands of pounds it costs to run a court every day. But Michel de Montaigne, again, has some pertinent thoughts on this system of justice: ‘A judge may leave home suffering from the gout, jealous, or incensed by a thieving valet: his entire soul is coloured and drunk with anger: we cannot doubt that his judgment is biased towards wrath.’

  Leo Seelig defends the adversarial system. ‘The real beauty of the adversarial system is that, so long as both parties are competent, then you really do hammer out all the issues, and they are properly litigated. There is an ethos amongst defence counsels in the UK that you must fight your case fearlessly and justly.’ From the point of view of the scientists, an inquisitorial system would end the ‘posturing’ and aggressive character assassination that they so loathe. Nevertheless, some of them would be against such a radical change. It’s useful to remember what Peter Arnold said at the beginning of this book. ‘I actually see the need for an adversarial system. I was challenged but ultimately that strengthened the case because it was clear that there were no issues. Ten years down the line we’re not going to have an appeal in that case saying the evidence could have been tampered with. I’d rather get it out in the open now. Let’s challenge it now. Let’s face the scrutiny.’

  Other scientists think that the kind of intense scrutiny lawyers currently put on them would be better directed. As one says, ‘I’ve had a defence solicitor in my office say to me, “Well, you know, we know he’s guilty as sin but it’s our job to catch you out.” That’s the thing that offends me more than anything. No, it’s not their job to catch us out. Their job is to look at the evidence.’

  In the experience of a fire expert I talked to, ‘The court process is a game between the lawyers and the experts. Lawyers may misinterpret the very best science that you put in front of them, and deliver a different message to the jury.’ Similarly, Fiona Raitt sees the same mismatch between the pursuits of the adversarial system and the pursuit of truth: ‘I don’t think those who defend the adversarial process believe that it is the best way to get at the truth … I think it distorts the truth actually. There is deep reluctance for governments to explore what juries do. It is probably too terrifying, because they’ll discover that actually they are highly prejudicial. A lot of those prejudices come out of the way that they deliberate. Basically it’s the strongest juror that wins the day and everyone else just falls into place.’

  The British exported adversarial trials and the jury system around the Empire. They remain the way of justice in countries such as the US, Canada, Australia and New Zealand. The US is the country best known for its adversarial system, partly because cameras are often allowed into the courtroom. Even more than in the UK, competent lawyers and experts in American courts go to the highest bidder. The best illustration is the all-star legal team assembled b
y O. J. Simpson in 1995, to defend him against the charge of stabbing his wife, Nicole Brown Simpson, and another man, Ronald Goldman, to death.

  In that infamous trial, lead defence lawyer Johnnie Cochran helped to get the jury on side with a mix of Technicolor suits, sharp cross-examination and burning charisma. At one point the prosecution asked Simpson to put on a glove that had been recovered from his house and which was – according to their case – bathed in the victims’ blood and Simpson’s own DNA. In court Simpson found it difficult to put the glove on. Cochran cocked his head to the jury and said, ‘If it don’t fit, you must acquit!’ The prosecution suggested that the glove had shrunk because it had been frozen and unfrozen several times during DNA testing. They produced a photo of Simpson wearing the glove some months before the murder. But neither the glove nor a slew of other incriminating evidence was enough to stop O. J. Simpson walking free, though he was later found criminally liable by a jury in a civil trial brought by the Brown and Goldman families.

  More commonly, the accused is not a wealthy sports star. When it comes to hiring lawyers and experts, most people have to settle for what they can afford. The civil rights campaigner Clive Stafford-Smith’s book Injustice (2013) follows the extraordinary case of Krishna ‘Kris’ Maharaj, a British businessman convicted of a double murder in a hotel room in Miami in 1986. The jury found Kris guilty of killing his Jamaican business partner, Derrick Moo Young, and his son, Duane Moo Young. Now seventy-five, Kris has so far spent twenty-seven years in a Florida jail for the crime.