Expert Witness

  Despite a few carefully worded messages left on the business card’s phone number (one has to be careful with message wording — one never knows who might be checking voicemails), we never heard a single thing. That in itself leaves a problem. We now have a pair of ownerless knickers sitting in the office. We can’t destroy them because they might be required as evidence. We can’t get hold of the owner or the client because there’s no answer on the phone or to our letters. What happens? In that case, I have no idea. As far as I know, those pink frillies are still in the office.

  Independent expert witnesses are nothing without solicitors and barristers. Without them, we don’t get any work. We rely on receiving full and accurate information from them because our work can only ever be as good as the information with which we are provided. As the old sayings go, rubbish in, rubbish out, you can’t make a silk purse out of a sow’s ear and it’s quality, not quantity, that matters. We receive our instructions usually in the form of letters because this is the legal arena and everything should be documented and recorded. It’s important to remember at this point that lawyers have to act on their clients’ instructions, no matter what the lawyer thinks about those instructions. Lawyers can advise their clients but the client doesn’t have to take that advice.

  It’s always amusing when we receive bizarre instructions, which some times we don’t under stand, and even the solicitors don’t under stand. Take this letter we received in a drink-driving case, which included the phrase: To the line and also lies showed a lower reading of H2. Now, I know a fair bit about drink-driving cases but I had not the faintest idea what this was all about. After having read through the file, though, I could see where the problem had arisen. The breath-testing device that had been used was the Lion Intoxilyzer and the results of the two breath samples were 84 and 82. The sentence should have read, The Lion Intoxilyzer showed a lower reading of 82. When I rang the solicitor and read it to him, he said we had passed the test and he was just keeping us on our toes (and that he had a new secretary who’d never done legal work before and had never heard of a Lion Intoxilyzer).

  Then there are the instructions that are in the sort of code the police use for describing events. In this particular case, a defendant had crashed into a street sign when he failed to adequately negotiate a bend. We were advised that, fortunately, neither the driver nor passenger was injured, although the driver somehow managed to acquire a head wound when diving into a bush in an attempt to evade capture by the police. I was intrigued, and went on to read the full, bizarre series of events. The police described chasing the driver, on foot by this time, until they came to a corner. As I rounded the corner, my colleague was partially blocking my view but I became aware of a pair of legs sticking out of the bush which we made a move to grab hold of. As it turns out, the driver had panicked and jumped into the nearest bush when he was out of sight of the police. Unfortunately, it was a laurel bush and was very sturdy, so sturdy in fact that he couldn’t get into it properly and couldn’t get out of it again either. Luckily for him, the Boys in Blue were close by to give him a helping hand.

  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 ove
r 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.

  Chapter 4

  The CSI effect

  Forensic scientists soon discover when talking to the general public that many people have an extremely limited knowlege of forensic science and the tasks it performs. As conversations continue it becomes apparent that misconstrued ideas often originate from watching television dramas.

  Caddy and Cobb in White, 2004

  This 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):

  It’s thanks to CSI that millions of us fancy ourselves as forensics experts. DNA profiling, blood spatter patterns, l
atent prints — who couldn’t throw a bit of forensic banter into a conversation and, after nine years of the mega-hit TV series, there can’t be many viewers who wouldn’t be quietly confident of nabbing the baddie if let loose on a crime scene.

  Unusually for a science-based programme, it’s glamorous, too. Every week — and without a thought for scene contamination (see, we’re all experts) — forensic investigator Catherine Willows swishes her fabulous red hair over dead bodies, dropping follicles into crucial evidence as she goes and Nick Stokes, her beefcake sidekick, wouldn’t be seen dead in one of those deeply unflattering one-piece paper suits worn by crime scene guys in the real world. But who cares, when even the trickiest murder is solved at the end of the programme? It’s not so popular in court rooms, however; a phenomenon called ‘the CSI effect’ has been wryly noted, whereby CSI-savvy jurors have an unreasonably high expectation of what forensic evidence can prove. After all, if slightly creepy CSI boss Gil Grissom and his team can work their science magic, week in, week out, on the murdered in Las Vegas, surely it can’t be that difficult.

  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?